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2020 Jotwell: J. Things We Like 1 (2020)

handle is hein.journals/jotwell2020 and id is 1 raw text is: 
Administrative Law
The Journal of Things We Like (Lots)

When Agencies Sue Each Other

Author  : Margaret Kwoka

Date : January 6, 2020

Bijal Shah, Executive (Agency) Administration, 72 Stan. L. Rev. __ (forthcoming), available at SSRN.

Independent agencies are subject to a host of interesting academic debates, including debates that go to the heart of
what makes  an agency independent and which agencies qualify. Most of those debates focus, however, on the
relationship between independent agencies and the President. Some of them explore the relationship between
independent agencies and the public, the courts, or Congress. But the horizontal examination of the relationship
between  independent agencies and executive agencies has gone under-examined.

In a meticulous accounting, Professor BijL Shah documents one fascinating aspect of that relationship in her
forthcoming article, Executive (Agency) Administration. There, she focuses on litigation brought by the Justice
Department  (DOJ) on behalf of executive agencies against independent agencies. This litigation dynamic is unusual,
but as she shows, not unheard of; her painstaking gathering of all such cases since 1900 yielded about 175 cases.
What  is more, these cases are incredibly illuminating. The vast majority fall into one of three categories. First, when an
independent agency adjudicates a matter against an executing agency as a party-typically labor-related-these cases
serve as the means for judicial review. Second, when independent agencies assert power that interferes with executive
agencies' own authority, lawsuits serve to protect executive agencies' purview. And third, there is a smaller category
of cases where DOJ  has challenged independent agency decisions to approve certain antitrust matters.

Even just identifying this body of litigation and describing how it has evolved over time contributes meaningfully to our
understanding of the relationship between executive and independent agencies. This sort of work-using original data
to illuminate a previously unexamined aspect of administrative law-is gaining traction in the field, and with good

Beyond  these insights, however, Professor Shah goes much further and demonstrates how this litigation actually forms
a powerful tool of executive control over independent agencies. While Shah explains that sometimes these decisions
are made  at the presidential level, and thus can be categorized as an attempt to exert presidential influence over
independent agencies along the lines of now-Justice Kagan's presidential administration, more often the decisions
are made  by career DOJ staff at the behest of executive agencies as their clients. These instances mark a very
different kind of balance of power between executive and independent agencies.

And the executive agencies are very successful in this litigation, winning around two-thirds of the cases they bring. This
flips traditional administrative challenges on their head; typically defending agencies win about two-thirds of the time.
Indeed, as Professor Shah explains, this phenomenon is one example of judicial review as an ex post check on
independent agencies' decision-making, where ex ante political checks are not possible. Some of her data even
suggest that the quality of independent agency decision-making may truly be improved by these checks-independent
agencies' least defensible decisions are overturned routinely in this context.

Though  there are many other aspects of Professor Shah's work that are notable, including implications for judicial
standards of review of independent agency actions, I found the most salient her observations about implications for
aggrandizement  of presidential control over independent agencies. As she says, litigation on behalf of executive
agencies against independent agencies can easily be harnessed for the political aims of the president. Although some
past examples suggest court skepticism in cases where such goals are blatant, the changing nature of the presidency
and the Supreme  Court may, in her view, suggest more openness to that strategy in the future.


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