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Abstract: While scholarship examining the relationship between Congress, federal agencies, and the judiciary reveals variation in the statutory details that affects administrative and judicial decision-making, few studies explore the extent to which congressional delegation decisions balance both the substantive and procedural independence of agencies against the possibility of the federal judiciary’s review of administrative action.
This Article enhances scholarly understanding of delegation by providing a qualitative, theoretical, and empirical account of the circumstances under which Congress manipulates federal agency exposure to the federal judiciary. Ironically, combined with statutory provisions dictating agency independence, increasing an agency’s exposure to unelected federal judges can increase administrative responsiveness to elected legislators.
Using a motivational case study of federal energy policy from the 93rd to 110th Congresses, this Article highlights how, during the legislative process, Congress’s members’ delegation decisions account for agency independence and administrative exposure to the courts. Based on the findings of this case study, the Article develops a new theoretical account of legislative choices over Executive Branch exposure to the federal judiciary. This Article then presents an empirical examination of significant legislation from the passage of the Administrative Procedure Act through 2016 to assess the factors influencing legislative choices regarding delegation, agency independence, and Executive Branch exposure to the judiciary.
In doing so, this Article makes several important contributions. First, by broadening scholarly discussions of agency design, delegation, and administrative responsiveness to elected officials, the Article illustrates how underappreciated factors—including political volatility, technical uncertainty, and administrative structure—influence the parameters under which Congress delegates. Along with agency independence, political coalitions strategically adjust the availability of judicial review to account for the practical realities of governance. Specifically, political coalitions increase administrative exposure to the courts as political volatility and the autonomy of agency leadership increase. Political coalitions decrease agency exposure to the courts as the complexity of the administrative policy arena increases and the availability of political review decreases.
Considered in its entirety, this Article suggests that legislative decisions regarding judicial exposure can enhance or diminish the effectiveness of other statutory and constitutional tools of democratic accountability, such as administrative procedures or oversight. Simply put, the level of administrative exposure to the judiciary has profound implications for the American separation of powers system of governance.
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