It’s no great secret that there are a lot of administrative agencies. A dauntingly large alphabet soup of government agencies regulates many industries, and these agencies often receive overlapping delegations of authority from Congress. As President Obama wryly pointed out in his 2011 State of the Union address, “The Interior Department is in charge of salmon while they’re in fresh water, but the Commerce Department handles them when they’re in saltwater. I hear it gets even more complicated when they’re smoked.” Most of what we hear about administrative agencies and government regulation of industry falls onto one side or another of a debate represented reasonably well by the following articles: “Regulation Lax as Gas Wells’ Tainted Water Hits Rivers” courtesy of the New York Times, and a piece by Alan Greenspan called “Activism” in which the former Fed Chairman blames our slow climb out of recession on too much government regulation. Or if you prefer a more adventurous headline, there is “Regulatory Overkill” courtesy of the Wall Street Journal.
Professor Jody Freeman (Harvard Law School) presented a paper she co-authored with Professor Jim Rossi (Florida State University College of Law) at the Public Law and Legal Theory workshop that builds on the observation of President Obama without getting mired in the stagnant debate of too much/not enough government regulation. Professor Freeman explained that traditionally administrative law has operated under the simplistic assumption that each agency acts separately from all the others in regulating in its own corner of the world. Would it were that it was so, Professors Freeman and Rossi say. Instead, what we have is a sea of agencies often with overlapping or concurrent delegations. To deal with this complexity, agencies need to coordinate. With more coordination it will be easier for agencies to write regulations and adjudicate disputes, and agencies will be able to avoid inconsistencies and redundancies in their regulations and decisions. Moreover, coordination can help mitigate the dreaded “tunnel vision” that regulators focused on a narrow slice of a larger problem are apt to develop.
Lawmakers and regulators have a menu of options to choose from when seeking more coordination between agencies. At one end of the spectrum there is the option of structural integration and the creation of mega-agencies like the Department of Homeland Security. Integration is difficult and costly, so instead lawmakers and regulators might require inter-agency consultation. Consultation can take many forms. For instance, regulators can voluntarily consult with other regulators, or they can draft contract-like memoranda assigning responsibility for various tasks and making other mutual commitments. Or Congress might require regulators from one agency to respond to the suggestions of regulators from another agency. Congress can also require that multiple agencies agree to adopt a single regulatory rule. The President too can take action to increase coordination by issuing Executive Orders regarding coordination between agencies, wielding threats of removal over regulators who won’t coordinate, and generally exert more centralized oversight over coordination through the White House.
Comments offered by the participants at the workshop centered around a related set of themes: How can you tell when coordination will work? How do we know when coordination is what Congress intended when it delegated lawmaking power to the agency? What is the appropriate level of centralized control? In some instances Congress actually intends to create multiple agencies and grant them overlapping delegations. Professor Freeman noted that much of the concurrent jurisdiction and regulatory overlap is, however, not the result of intentional choice by lawmakers, but rather due to the slow and ad hoc build-up of agencies and their responsibilities over time. This paper is intended to be the start of a new conversation regarding coordination between federal agencies. Other participants focused on the fact that the paper is heavily concerned with the inside baseball of regulation rather than the potential political impact of more versus less coordination. Having an efficient bureaucracy is not the end-goal of our regulatory apparatus. Rather, we want our regulators to implement statutory schemes fairly and accurately while taking account of changed circumstances. Professor Freeman noted that she and Professor Rossi strongly support agency coordination, because in some cases regulatory complexity is preventing the public from getting the benefit of programs that Congress has created.
Professors Freeman and Rossi made a deliberate choice to chart the available territory in great detail without becoming bogged down in some of the most difficult issues to resolve. The paper walks through a complicated landscape of MOUs, consultation provisions, joint rulemakings, joint action requirements, and interlocking and incorporated rules. Despite this detail, the paper does not attempt to develop general principles that tell us when regulatory complexity is preventing the public from getting the benefit intended by Congress or what coordination tools should be deployed in response. A paper can do only so much. Nonetheless, Professor Freeman explained that there are many instances of regulatory complexity where everyone can agree that there is a failure of coordination. (This of course raises the question of why the regulators haven’t voluntarily adopted one or more of the coordination mechanisms that the paper highlights.)
Technical though administrative law may be, the profits and public welfare at stake generate corresponding interest groups that are constantly in search of opportunities. When agencies coordinate there will be winners and there will be losers. It remains to be seen what kind of impact a greater emphasis on coordination will have.