The Battle that Never Was: Congress, the White House, and Agency Litigation Authority

Law & Contemporary Problems, Vol. 61, P. 205, Winter 1998

Posted: 14 May 1999

See all articles by Neal Devins

Neal Devins

William & Mary Law School

Michael Herz

Yeshiva University - Benjamin N. Cardozo School of Law

Abstract

This paper examines the politics behind the (legislatively specified) division of litigation authority between the Justice Department and agency lawyers within the executive branch. In particular, why is it that lawyers within the executive branch care a great deal about this question while Congress cares very little about the division lof litigation authority.

In part, the explanation for this difference could not be more obvious. For the lawyers themselves, the allocation of authority is personal; it directly affects their power and the nature of their jobs. Nevertheless, Congress' seeming indifference to the division of litigation authority, at first glance, seems suprising. After all, courts figure prominently in governmental policymaking and, as such, the question of who speaks the government's voice seems anything but immaterial. Upon closer inspection, however, it may be that Congress' choice to invest little energy in parceling out litigation authority is sensible. Through its lawmaking and oversight powers, Congress has more powerful and direct tools for defining the scope and content of legal policymaking. In contrast, centralizing litigation authority within the Justice Department bolsters presidential control of the administrative state. Thus, as this paper shows, when litigation authority is placed against the backdrop of intensity of preferences within Congress and the Executive Branch, DOJ control of government litigation is hardly suprising.

Suggested Citation

Devins, Neal and Herz, Michael Eric, The Battle that Never Was: Congress, the White House, and Agency Litigation Authority. Law & Contemporary Problems, Vol. 61, P. 205, Winter 1998. Available at SSRN: https://ssrn.com/abstract=162240

Neal Devins (Contact Author)

William & Mary Law School ( email )

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Michael Eric Herz

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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