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Abstract: While scholarship examining the relationship between Congress, federal agencies, and the judiciary reveals variation in the statutory details that affect administrative and judicial decision-making, few studies explore how Congress can utilize the judiciary as a check on the executive branch. Using a focal case study of federal energy policy from the 93rd to 110th Congresses, this Article highlights the interactions between political coalitions, agencies, and courts during the legislative process. 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 that influence legislative choices regarding agency exposure to the judiciary.
In doing so, this Article makes several important contributions. First, the Article enhances scholarly understanding of delegation by providing a theoretical and empirical account of the circumstances under which Congress manipulates federal agency exposure to the court system. Ironically, increasing an agency’s exposure to the unelected federal judiciary can increase the democratic accountability of the administrative state. In addition, the Article offers a more complete explanation of how variation in agency structure influences the content of statutory and administrative law. Broadening scholarly discussions of agency design, delegation, and administrative responsiveness to elected officials, the Article illustrates 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 judicial review to account for the practical realities of governance. Specifically, political coalitions increase administrative exposure to the courts as political volatility increases and the autonomy of agency leadership increases. Political coalitions decrease agency exposure to the courts as the complexity of the administrative policy arena increases and as 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, the level of administrative exposure to the judiciary has profound implications for the American separation of powers system of governance.
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