Congress's Agency Coordination

96 Pages Posted: 9 Feb 2018 Last revised: 30 Mar 2018

Bijal Shah

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: March 1, 2018

Abstract

Coordination is a mechanism for administrative control. Indeed, it is well-known that the President and agencies themselves initiate it for a variety of substantive and self-interested reasons. This Article is the first to establish that Congress also creates frameworks of interagency coordination, and it bases this argument in the largest data set to date of statutes and legislative history detailing coordination requirements for federal agencies in several regulatory areas across the executive branch. This Article contributes to the scholarship on positive law by compiling and presenting this legislative material, offering a number of insights about it, and situating it within the debate regarding which political branch has sovereignty over the administrative state.

Comprehensive analysis of this legislative data illustrates that statute-based administrative coordination compels agencies to engage autonomously—that is, as shaped by their own discretion—to more effectively further Congress’s political and policymaking priorities across the executive branch. This layered dynamic is evidenced by the main qualities of most coordination legislation, regardless of its regulatory focus: first, that it is both hierarchical and expansive, thus empowering agencies favored by Congress to structure coordination with significant discretion; and second, that it is mandatory, thus giving the legislature ultimate control over the implementation of the authorized interagency coordination. Potential incentives for this legislation include many that motivate the President’s initiation of administrative coordination, as well as some that are of special interest to the legislature, including the goal of limiting potentially wayward executive influence on agencies’ implementation of the law—and that benefit, therefore, from the incubation of agency autonomy vis-à-vis the President.

This paper also suggests that coordination legislation challenges our expectations of executive hierarchy by empowering agencies to interact independently—that is, without direction from the President. More specifically, coordination legislation may muddy lines of executive accountability and imbue executive agencies with several qualities of independent regulatory commissions that increase their insulation from the Executive. Indeed, statute-based coordination has the potential to interfere with the President’s role as administrator-in-chief, unless it is circumscribed by executive oversight or, better still for both legislative and executive purposes, ex ante presidential involvement in interagency coordination.

Keywords: President, Congress, agencies, legislation, positive theory, administrative law, agency discretion, separation of powers, Article II

Suggested Citation

Shah, Bijal, Congress's Agency Coordination (March 1, 2018). 103 Minnesota Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3112844 or http://dx.doi.org/10.2139/ssrn.3112844

Bijal Shah (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Phoenix, AZ
United States

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