Daniel A. Farber and Anne Joseph O’Connell,
Agencies as Adversaries,
105 Calif. L. Rev. 1375
Conflict between agencies and outsiders—whether private stakeholders, state governments, or Congress—is the primary focus of administrative law. But battles also rage within the administrative state: federal agencies, or actors within them, are the adversaries. Recent examples abound. In President Obama’s administration, there was the battle between the Federal Bureau of Investigation and the Department of Defense over hacking the iPhone of one of the San Bernardino shooters, the conflict between the State Department and the Central Intelligence Agency over classifying some aspects of Secretary Hillary Clinton’s emails, and the sharp division between the Republican and Democratic members of the Federal Communications Commission on net neutrality. President Trump’s administration has begun with intense internal conflict. After President Trump issued his first immigration executive order, fights started—largely between holdover appointees (as well as career bureaucrats) and the new boss. Battles have also erupted among President Trump’s chosen lieutenants in the White House and in the cabinet. While the President has denounced his opponents, he is also fostering conflict by choosing cabinet secretaries with whom he knows he has policy disagreements, placing loyalists in key agency staff positions as monitors, and selecting adversaries for top White House slots.
This Article draws on rich institutional accounts to illuminate and classify the plethora of agency conflicts and dispute resolution mechanisms. Then, by applying social scientific work on agency and firm design, as well as constitutional theory, we aim to explain the creation of such conflict––largely by Congress and the White House but sometimes by the courts––and to evaluate its desirability. We assess the characteristics of conflict against economic, political, and philosophical criteria to suggest lessons for institutional design in the modern administrative state. In contrast to much of the existing literature, we focus on the potentially positive contribution of agency conflict to effective democratic governance.
Finally, we use our descriptive, positive, and normative work on agency conflict to contribute to longstanding legal debates and to flag important legal issues that have generated little attention. For instance, we investigate the constitutional limits of congressionally or judicially created conflict within the executive branch, the application of deference doctrines in the face of agency disagreement, and the ability of agencies to take conflicting positions directly or indirectly in the courts themselves.