Congress’s Agency Coordination

By Bijal Shah. Full text here.

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 contention in the largest collection to date of statutes and legislative history detailing coordination requirements for federal agencies in several regulatory areas across the executive branch. By uncovering coordination legislation, which fosters an unexamined but pervasive relationship between Congress and agencies, this Article contributes to the fundamental debate regarding which political branch has sovereignty over the administrative state.

Comprehensive analysis of this original legislative dataset illustrates that statute-based administrative coordination compels agencies to engage autonomously to more effectively further legislative priorities across the executive branch. This layered dynamic is evidenced by the main qualities of most coordination legislation: 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 statute-based interagency coordination. Coordination legislation may be driven by many of the same incentives that motivate the President’s initiation of administrative coordination, as well as some that are unique to the legislature, including the goal of limiting politicized executive influence on agencies’ implementation of the law. More generally, these goals of statute-based coordination would benefit from the incubation of agency autonomy.

This Article argues that, accordingly, coordination legislation empowers agencies to interact independently—that is, without direction from the President—and thus challenges our expectations of executive hierarchy. 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. Therefore, 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 legislative purposes, ex ante presidential involvement in interagency coordination.