Academic journal article Harvard Law Review

Intra-Agency Coordination

Academic journal article Harvard Law Review

Intra-Agency Coordination

Article excerpt

CONTENTS INTRODUCTION I.   INTERNAL STRUCTURE AND PROCESS      A. The Agency Head      B. Agencies as Information Processors      C. The Need for Subdelegation         1. Political         2. Legal         3. Scientific         4. Economic II.  INTRA-AGENCY COORDINATION      A. Coordination Mechanisms         1. Centralization         2. Specialization         3. Separation         4. Standardization         5. Procedures            (b) Priority-Setting      B. Constraints         1. Implementation Costs         2. Mandatory Design Requirements III. IMPLICATIONS      A. Political Accountability      B. Efficiency, Effectiveness, and Expertise         1. Efficiency and Effectiveness         2. Expertise      C. Judicial Oversight CONCLUSION 

INTRODUCTION

Observers of the rulemaking process have long recognized the salience of bureaucratic structure to regulatory outcomes. Organizational design choices can determine who controls the levers of influence, both formal and informal, within an administrative agency. In one prominent view, Congress can "stack the deck" through structures and processes designed to ensure that certain constituents continue to influence regulatory policy. For example, a statute could strategically define an agency's jurisdiction, impose for-cause removal restrictions on its officials, or limit the availability of judicial review--all in efforts to preserve the interests of the winning legislative coalition. Other scholars have developed analogous theories of presidential bureaucratic design as well. From these perspectives, the structural determinants of regulatory policy are "more the product of politics than of any rational or overarching plan for effective administration."

This general lens is in keeping with administrative law's overwhelming focus on the influence of agencies' external monitors. The main unit of analysis from this point of view is the agency, and the central question is how actors outside of that agency exercise control over it. Comparatively lacking, however, is work assessing controls internal to the agency: how these mechanisms arise, what explains their design, and how agency heads can shape and implement them. Consequently, what the structure-andprocess account still requires is an examination of how agency heads themselves can, and do, impose mechanisms to further their own interests. (1) These intra-agency units of analysis have many different names in the real world: "divisions," "bureaus," "centers," and "offices," to name a few. (2) What unites them analytically here is that they constitute organizational units of analysis within agencies, which possess governmental authority. (3)

Just as in the interagency context, which has generated a substantial amount of recent scholarship, (4) many of these internal agency divisions have intersecting duties when it comes to regulatory development. Alternatively, these units can perform independent substantive functions. These dynamics analogously require what this Article calls intra-agency coordination. The Commodity Futures Trading Commission (CFTC), for example, assigns the oversight of regulatory cost-benefit analyses to both its Office of the Chief Economist and its Office of General Counsel. (5) At the same time, staff members across the CFTC's various divisions--whether in the Division of Market Oversight or the Division of Clearing and Risk--are responsible for drafting these analyses. (6) To better manage these overlapping dynamics, the Commissioners of the CFTC have engaged in various restructurings and procedural reforms in recent years. (7) Intra-agency coordination mechanisms can also serve as instruments of control in the presence of information asymmetries. Such tools may be used by agency heads to discipline appointed subordinates or resistant career staff. Consider, for example, Environmental Protection Agency (EPA) Administrator Christine Todd Whitman's efforts to transfer the Agency's Ombudsman from the Office of Solid Waste and Emergency Response to another internal office, the Office of the Inspector General. …

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