Bureaucracy at the boundary.

AuthorO'Connell, Anne Joseph
PositionNonexecutive administrative organizations creation and role in governance - Introduction through II. Theories of Boundary Organizations A. Why Boundary Organizations Are Created 2. Competence, p. 841-884

The traditional view of the federal administrative state imagines a bureaucracy consisting entirely of executive agencies under the control of the President as well as regulatory commissions and boards that are more independent of the White House. Administrative law clings to this image, focusing almost entirely on these conventional agency forms. The classic image, however, is inaccurate. The reality of the administrative state is more complex.

Contrary to the traditional view, a considerable bureaucracy exists outside of executive agencies and independent regulatory commissions: the largest employer of nonmilitary government employees, the U.S. Postal Service; the only major operator of passenger trains in the country, Amtrak; the organization that ended the career of cyclist Lance Armstrong, the U.S. Anti-Doping Agency; the primary responder to domestic emergencies, the National Guard; the major international lender to developing countries, the International Bank for Reconstruction and Development, a part of the World Bank group; and the federal government's primary oversight agency, the Government Accountability Office, are a few examples.

This bureaucracy lives largely at the boundaries. There are organizations at the border between the federal government and the private sector. There are organizations at the border between the federal government and other governments, including those of states, foreign countries, and Native American tribes. And there are organizations entirely within the federal government that do not fit squarely within the Executive Branch, including but encompassing far more than independent regulatory commissions and boards. The variety, number, and importance of these organizations greatly complicate the structure of the federal bureaucracy as widely perceived.

To widen the lens on the administrative state, while trying to retain some tractability, this Article locates and classifies the missing federal bureaucracy along the borders of more conventional categories and other important boundaries. In addition to placing these missing parts on the bureaucratic map, it also considers movement to and from the center of these categories. The heart of this Article theorizes about these missing components, specifically why political actors would create bureaucracy at the boundary. Under the theory advanced here--and seemingly in reality--these entities are actually the ordinary outcome of the agency design process. This Article also considers whether their creation serves social welfare or democratic legitimacy objectives, suggesting that efficiency may not always trump accountability in these alternative agency structures. Finally, this Article examines important legal issues surrounding these other bureaucracies and how these entities might shape established law and governance of federal agencies.

INTRODUCTION I. Scope of Inquiry and Classification of Boundary Organizations A. Scope of Inquiry B. Between the Federal Government and the Private Sector 1. Government at the Private Border 2. Quasi-Government at the Private Border C. Across Levels of Government 1. Federal-State Border 2. Federal-Foreign Border 3. Federal-Tribal Border D. Within the Federal Government 1. Legislative-Executive Border 2. Executive-Judicial Border 3. Legislative-Judicial Border E. Movement 1. Movement from Center to Boundary 2. Movement from Boundary to Center II. THEORIES OF BOUNDARY ORGANIZATIONS A. Why Boundary Organizations Are Created 1. Political Control 2. Competence 3. Putting Political Control and Competence Together B. The Consequences of Boundary Organizations 1. Social Welfare 2. Democratic Legitimacy C. Application of Positive and Normative Theories to Movement of Organizations III. LEGAL IMPLICATIONS OF BOUNDARY ORGANIZATIONS A. Constitutional and Common Law Implications 1. Legality of Boundary Organizations a. Separation of Powers b. Nondelegation Doctrine c. Appointments Clause 2. Obligations and Defenses of Boundary Organizations a. Obligations b. Defenses B. Statutory Implications 1. Federal Court Jurisdiction 2. The APA and FOIA C. Governance Mechanisms 1. Presidential Directives 2. Budget Process 3. Litigation Authority D. Reconsidering "Classic" Agencies CONCLUSION INTRODUCTION

The U.S. Postal Service's (USPS) multi-billion dollar losses and its plan to stem them, in part, by ending the delivery of letters on Saturday grabbed newspaper headlines and elicited dismay from politicians. (1) Politicians, in particular, appreciated that the USPS is "the only federal agency with which most people directly interact almost every day"--at least as recipients of mail. (2) Even now, with email and other forms of communication having taken over many of the functions once served by the mail, the USPS is the largest governmental employer of civilians and the second largest civilian employer of any kind (after Wal-Mart) in the United States. (3) Politicians, economists, and ordinary citizens see the USPS as a major part of American life.

Public law presumes to differ from this central treatment of the USPS, offering virtually no place for the agency as it has been organized since 1971. This was not always the case. The old Post Office still appears in the study of modern administrative law. As the nation's second oldest agency, after the Army, it predated the Declaration of Independence and continued uninterrupted under the Constitution. (4) For close to 150 years, the head of the Post Office had Cabinet-level status, as the heads of the Environmental Protection Agency and a few other entities do today. Until 1971, it was a classic executive agency with "purely executive officers," (5) whom the President could fire for any reason. Indeed, its pre-1971 form serves as a benchmark in case law from which to measure the Federal Trade Commission (FTC) and other independent regulatory commissions (IRCs). (6)

After millions of pieces of mail became stuck in the Chicago Post Office in October 1966, (7) the Commission on Postal Reorganization called for the postal service to be refashioned as a government-owned corporation. (8) The Postal Reorganization Act of 1970 implemented that recommendation, creating the USPS as an organization with public and private sector characteristics. (9) Accordingly, its staffing and leadership structure combine both. (10) Funding, too, comes from both governmental and private market sources. (11) The USPS is running large deficits, and before 2013 had failed, for the second time, to make a legally required, $5.5 billion pension payment. (12)

The current manifestation of the post office, with both its public and private elements, is largely absent from administrative law. The change in its structure, from a Cabinet department to a government corporation, is also largely absent. (13) Like a Cabinet agency or independent regulatory commission or board--the two kinds of institutions acknowledged by the classic understanding of the federal regulatory state--the USPS is a state actor under the Constitution and is subject to the Administrative Procedure Act (APA). (14) Fraud against it is considered to be fraud against the federal government. (15) Yet unlike almost all of those structures, the USPS has independent litigating authority with regard to its rate-making activities. (16) Its process for appointing leaders also fits somewhat uncomfortably with the requirements of the Appointments Clause, which mandates that a principal officer be selected by the President and confirmed by the Senate and an inferior officer be selected the same way unless Congress chooses one of three alternatives, including to be picked by the head of a department. (17) In addition, it functions in many ways as a corporation; symbolically, its primary web address ends in ".com." (18) Despite its hybrid qualities, because it remains a critical component of the federal bureaucracy, the modern post office's absence from the attention of administrative law seems surprising.

This Article examines the considerable bureaucracy, including the USPS, that is neither an executive agency nor an independent regulatory commission, yet is still at least partially federal. Other examples include the only major operator of passenger trains in the country, Amtrak (officially the National Railroad Passenger Corporation); the organization that ended the career of cyclist Lance Armstrong, the U.S. Anti-Doping Agency; the primary responder to domestic emergencies, the National Guard; the major international lender to developing countries, part of the World Bank (officially the International Bank for Reconstruction and Development (IBRD)); and the federal government's primary oversight agency, the Government Accountability Office (GAO). Most of these entities have significant ties to the federal government, but they reside at the border between the federal government and either the private sector or another government, whether state, foreign, or Native American tribal. And there are organizations entirely within the federal government that do not fit squarely within the Executive Branch, including but encompassing far more than independent regulatory commissions and boards. In short, this Article takes what appears to exist on the margins, both in the structure of the administrative state and in scholarship, and makes it more central to the modern bureaucracy.

Legal scholars generally ignore such entities, except for fleeting references or particular categories in isolation. (19) They have paid some attention to government corporations and other quasi-agencies at the public-private border. (20) There has also been some writing on interstate compact agencies at the federal-state border (21) and on international organizations at the federal-foreign border. (22) To be sure, there is a cottage industry of articles that address independent regulatory commissions and boards--such as the FTC--which exist at the boundary of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT