Notice & Comment

Ad Law Reading Room: “Governing by Assignment,” by Isaac Cui, Daniel E. Ho, Olivia Martin, and Anne Joseph O’Connell

Today’s Ad Law Reading Room entry is “Governing by Assignment,” by Isaac Cui, Daniel E. Ho, Olivia Martin, and Anne Joseph O’Connell, which is forthcoming in the University of Pennsylvania Law Review. Here is the abstract:

A pillar of administrative law is expertise, but government is increasingly missing experts. The U.S. federal government faces a personnel crisis of staggering proportions, with sharp pain points in civil service hiring—especially in science and technology—and the political appointments process. With urgent challenges like the rapid development of artificial intelligence, national cybersecurity, and climate change, an inadequate workforce raises fundamental concerns for legitimate governance.

This Article documents a novel and important way that agencies are responding to this crisis: temporary assignments into federal agencies, what we call governing by assignment, under the Intergovernmental Personnel Act of 1970 (IPA). To date, legal scholarship, casebooks, and treatises have missed this trend. But Beltway insiders have not. Congressional inquiries question the legality of governing by assignment, raising basic questions about its scope, authority, and utility. We intervene in this pressing debate by providing the first systematic account of the administrative law of governing by assignment and by spelling out key nuances in IPA practice to inform policy discussions about governmental capacity and good governance norms.

Empirically, we show that federal agencies have increasingly used the IPA to fill important roles throughout the executive branch, ranging from twelve percent of the National Science Foundation’s staff to the interim head of the Department of Justice’s Civil Rights Division to data scientists analyzing the Internal Revenue Service’s tax auditing data. While neglected by scholarship to date, governing by assignment is pervasive.

Theoretically, we offer a framework for understanding these different uses and their drivers. Governing by assignment consists of three modalities: staffing, leadership, and projects. Each responds to different pressures on the administrative state, and each raises unique policy considerations. We show how structural shifts in government personnel have led agencies to rely on governing by assignment to achieve critical missions.

Legally, governing by assignment raises significant questions of administrative law. Assignees are sui generis, residing at conceptual boundaries—between employees, contractors, civil servants, and political appointees. We bring them into the light, analyzing governing by assignment against nondelegation, the Appointments and Appropriations Clauses, and conflicts of interest and transparency laws. And we show that the administrative law of assignment should be sensitive to the different modalities of governing by assignment.

Finally, prospectively, based on in-depth interviews with former and current government officials, we offer recommendations to capture the substantial benefits of governing by assignment while fostering good governance and constitutional norms under the IPA.
Although first-best solutions would address core personnel hurdles, governing by assignment provides a compelling mechanism for today’s administrative state, particularly in frontier fields such as science, technology, and evidence-based policy. Governing by assignment is vastly superior to not governing at all.

The article is a fascinating deep dive into a topic I knew little about. Historically used to embed federal bureaucrats within state and local institutions, the Intergovernmental Personnel Act of 1970 has become an important way for the federal government to build its own bureaucratic capacity. As the article explains, that’s an important function in a world in which the demand for federal government services has outpaced the government’s ability to hire staff. But it comes with a catch. Under the IPA, government positions are filled by employees of nongovernmental entities who largely maintain their employment relationship with those entities during their government tenure.

“Governing by Assignment” stands out for its detailed cataloguing of the roles played by federal officials drawn into government through the IPA. Unearthing those varied roles also proves key to the article’s central normative contribution. As the article argues, some objections to the use of the IPA apply with less force, or not at all, with respect to certain kinds of jobs. Similarly, reforms should be sensitive to context; potential fixes that make sense when applied to one kind of official may do more harm than good when applied to another. I’d urge anyone interested in how the government functions today to give “Governing by Assignment” a read.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.

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