Jody Freeman and Jim Rossi (Harvard Law School and Florida State University - College of Law) have posted Agency Coordination in Shared Regulatory Space on SSRN. Here is the abstract:
This Article is the first comprehensive discussion in legal scholarship of the problem of fragmented and overlapping delegations of power by Congress to administrative agencies. With few exceptions, legal scholarship still treats policymaking and implementation as something conducted by a single agency acting independently. This conception makes it easy to miss or downplay how widely dispersed administrative responsibility can be. In fact, many areas of regulation are characterized by significant overlap, with numerous agencies in charge of some aspect of the same or a related problem. This includes crucial tasks ranging from border security to food safety to financial regulation. Coordination breakdowns can be blamed in part for inadequate government responses to emergencies like the BP oil spill, but also for chronic failures of government management and regulation in virtually every sphere of social and economic regulation. In particular, dispersing authority among numerous agencies burdens the President, whose constitutional duty it is to faithfully execute the laws, with a monumental management challenge. Yet this problem has not been explored sufficiently in legal scholarship. We argue that these delegations create a stubborn and serious crisis of coordination in the federal government, and propose mechanisms that can help to mitigate the problem.
The Article’s clear normative commitment is to more effective use of coordination among agencies, while being mindful of its costs. The problem of “shared regulatory space” is not well understood in administrative law, which focuses on individual agency action and not on the interplay among agencies. To the extent that legal scholars to date have analyzed overlapping or fragmented delegations, they have described them as a problem of “redundancy” and focused on eliminating duplicative functions. Drawing on political science, some scholars have used game theoretic models to seek to explain why lawmakers might benefit from redundancy. While this work seeks to account for how overlapping delegations arise, it fails to confront the essential challenge of coordination.
This Article first explores competing theories of why the legislative process creates coordination problems in the first place, and then describes a variety of mechanisms that Congress and the executive branch might deploy to address them. These tools include mandatory inter-agency consultation, memoranda of understanding, joint rulemaking, and stronger centralized coordination through White House oversight. We assess these instruments in light of concerns about their costs, and their implications for accountability. Generally, the more transparent, substantive and binding a coordination instrument, the more likely it will be to effectively manage shirking and bureaucratic drift, but the more potential it has to raise agency decision costs. Coordination can also be a terrain of struggle between Congress, the agencies and the President, as each player tries to control the administrative process. We argue that judicial review should play a key role patrolling the boundaries of this inter-branch struggle and ensuring agencies stay within legal bounds, without erecting unnecessary barriers to coordination.