Executive (Agency) Administration.

• Author: Shah, Bijal

Table of Contents Introduction I. Executive Administration A. The DOJ's Authority to Litigate Interagency Disputes B. Typology of Litigation: Preserving Executive Agencies' Power 1. Disputing an independent agency's binding adjudication 2. Defending an executive agency's statutory jurisdiction 3. Questioning independent agency certification of monopolies C. Power Shifts Within the Executive Branch 1. Arbitrary and capricious review as executive oversight 2. Reduced Chevron deference to independent agencies II. Presidential Administration A. The Limits of Intrabranch Administration B. Typology of Litigation: Increasing Substantive and Structural Control 1. Furthering the President's agenda 2. Defending and augmenting the President's removal power C. Dynamics Among the Branches of Government 1. Executive encroachment on the legislature 2. Judiciary as gatekeeper of executive administration Conclusion Appendix A: Methodology & Summary Tables Appendix B: Dataset Introduction

President Trump has pursued significant control over the executive branch, but this in no way makes him exceptional. (1) As Elena Kagan famously argued before joining the Supreme Court, all modern Presidents have pursued a system of administrative control. (2) In other words, Kagan asserted, not only do political officials, legislators, interest groups, and others outside of the executive branch wield influence over administrative activity, but the President does so as well, from within the branch itself. (3)

Kagan also noted that presidential administration, while focused on executive agencies, is nonetheless thwarted by "Congress's creation of independent agencies--that is, agencies whose heads the President may not remove at will." (4) Indeed, she conceded, "the existence of independent agencies can pose a particularly stark challenge to the aspiration of Presidents to control administration." (5) This is because, as is well known, there are significant limitations to the President's power to direct or even influence independent agencies, (6) sometimes called the "fourth branch" of government. (7) Despite acknowledging these limitations, scholars have failed to acknowledge the salience of other possible frameworks of executive control, particularly as it concerns the independent agencies. This Article asserts that holistic influence over the administrative state--and in particular, independent agencies--may be wielded by executive agencies themselves, as opposed to exclusively by or on behalf of the President. This Article refers to this nonpresidential form of overarching executive influence as "executive administration." This Article does not maintain that there has been no previous recognition of influence over the administrative state from within the executive branch; as Kagan noted, the "internal staff of the agencies" impact administrative activity, (8) at least on an agency-by-agency basis. Rather, this Article modifies the assumption that independent agencies act independently of administration from within the executive branch.

This Article argues that executive administration secures the power of executive agencies vis-a-vis independent agencies, and is motivated by interests that are common to executive agencies and not attributable to any given presidency. As a general matter, executive agency goals that are unrelated to specified presidential interests include the defense of executive agency autonomy and turf at the expense of independent agencies. Presidential administration furthers the President's policy agenda or desire to secure more power over administrative agencies, notwithstanding the President's lack of control over independent agencies.

One potential framework of executive administration flows from decisions made by the Solicitor General on behalf of independent agencies that lack the authority to litigate before the Supreme Court. The use of this authority to deprioritize the interests of independent agencies, primarily by downplaying or ignoring the interests of independent agencies while defending them in the Supreme Court, has been documented. (9) However, this dynamic offers only a partial account of executive administration, in part because it is often driven by the President's agenda. (10)

This Article brings to light a longstanding and more consistent mechanism of executive administration: litigation brought on behalf of executive agencies by the Department of Justice (DOJ) against independent agencies before Article III courts. An original dataset of approximately 120 relevant cases, most of which have been made available in the Appendix, (11) reveals this litigation has existed from 1945 through the present day. Nonetheless, few have examined it, (12) and no one has presented a comprehensive account. This Article, which is the first to catalogue this body of law, uncovers three overarching categories of cases:

1. The first is litigation seeking to reverse adjudications made by independent agencies that bind or circumscribe the actions of executive agencies. (13) For example, the DOJ has appealed several decisions by the Federal Labor Relations Authority (FLRA) sanctioning executive agencies for committing unfair labor practices. (14)

2. The second is litigation pursuing limits to independent agencies' authority to implement statutes, in order to protect executive agencies' jurisdiction in overlapping areas of regulation. (15) For example, the DOJ has challenged actions by the Occupational Safety and Health Review Commission (OSHRC) that interfere with the Department of Labor's statutory authority or its authority to interpret its own regulations. (16)

3. The third category, which is far rarer than the first two, is litigation seeking the invalidation of merger or price-fixing agreements approved by an independent agency. (17) Examples include DOJ litigation disputing the certification of airline mergers or price fixing in the railroad shipping industry. (18)

   The DOJ has brought cases furthering executive administration relatively often--approximately 80% of this dataset falls into the first two categories--and fairly successfully, with a win rate between 60% and 70% in the first two categories overall. (19)

   As a descriptive matter, litigation against independent agencies has helped shift power toward the priorities of executive agencies, at the expense of independent agencies. In the first set of cases appealing independent agency adjudications decided against executive agencies, litigation is the mechanism that preserves governmental machinery by holding the line against increasing independent agency restriction of executive agencies, primarily in the labor regulation context. These "everyday" cases, as a whole, have allowed executive agencies to stave off regulation by certain independent agencies, thereby limiting the clout of the latter. The second and third sets of cases have curtailed independent agencies' statutory jurisdiction and decisionmaking authority, respectively. In this way, they have served to circumscribe independent agencies' policymaking power in broader strokes. In addition, this litigation contributes to the complicated framework of agency coordination and conflict, much of which has focused on mechanisms within the executive branch, rather than on Article III courts. (20)

   This Article makes two normative arguments regarding this litigation that bear on the relationship between the executive branch and independent agencies, sometimes referred to as the "internal" separation of powers (21) (a framework that arguably undergirds presidential administration as well). First, it argues that litigation is an instrument for executive reform that appears to improve the quality of independent agency activity, somewhat analogous to Kagan's claim that presidential administration advances "values of accountability and effectiveness." (22) More specifically, the dataset reveals that courts have often applied the "arbitrary and capricious" standard of review to support the DOJ's position in cases appealing the result of an administrative adjudication by an independent agency. (23) In this way, litigation may help ameliorate independent agencies' issuance of subpar decisions due to their lack of accountability to the executive branch. (24)

   Next, this Article hypothesizes that litigation may become a means for the executive branch to cabin or supersede independent agencies' power to interpret their organic (that is, enabling) legislation. It bases this theory on a 2018 Supreme Court decision that declined to grant Chevron deference to an independent agency's interpretation of its enabling statute because of a conflict with an executive agency's interpretation of a general statute. (25) If this case is any indication, litigation could facilitate a reduction in the rightful exercise of independent agencies' discretionary authority. And regardless of whether this litigation benefits or harms the administrative state in the long run, it nonetheless casts some doubt on the contention that the judiciary is "quite unlikely" to act in ways that reduce agency independence. (26)

   Finally, this Article also highlights instances in which this litigation has been used as a tool of presidential administration. As noted earlier, the ability of the President and her surrogates to control the behavior of independent agencies is limited. (27) However, the President has pursued opportunities to constrain the behavior of independent agencies through litigation. These cases, which are far rarer than litigation brought for purposes of executive administration, (28) can be divided into two categories:

1. First, the DOJ has disputed independent agencies' exercise of authority in order to further the President's agenda. (29) For example, on behalf of Presidents who have been vocally opposed to civil rights mandates, the DOJ has sought to limit the scope of authority of the Equal Employment Opportunity Commission...