Notice & Comment

“Passing the Buck” in Agency Adjudication, by Bijal Shah

Agencies often share their power with one another—the operative word being ‘share.’ For instance, they engage in “joint rulemaking” with other agencies on the basis of shared statutory authority. They also participate in “coordinated interagency adjudication,” in which they subdelegate portions of their power to adjudicate administrative claims or otherwise share the responsibility of furthering an adjudication process on the basis of statutory authority that divides decision-making tasks among multiple agencies. My article Interagency Transfers of Adjudication Authority, recently published in the Yale Journal on Regulation, highlights a form of coordinated interagency adjudication in which agencies go beyond sharing. In the dynamic I explore, agencies give away all of their jurisdiction to adjudicate administrative cases to other agencies—and in particular, to agencies that do not have statutory authority to make these decisions.

For instance, in 2009, the Department of Homeland Security (DHS) agreed to let the Department of Labor (DOL) adjudicate seasonal non-agricultural worker visas (known as “H-2B” non-immigrant visas) and to let the DOL’s denials of such visas stand as the final determination on these visa petitions. The two agencies based this transfer of decision-making power on legislation (8 U.S.C. § 1184(c)(1) (2012)) mandating that DHS “consult with the appropriate agencies of the Government” in deciding whether to grant a foreign worker an H-2B visa. In late 2015, in response to litigation brought by employers claiming that their workers’ petitions were unfairly denied by the DOL without review by DHS, the Tenth Circuit decided that the transfer of this decision-making authority from DHS to the DOL was an “impermissible subdelegation” of power, because it was not an acceptable construction of DHS’s authority to “consult.” In doing so, the Tenth Circuit remarked: “Courts are quite tolerant of the administrative practices of agencies, but passing the buck on a non-delegable duty exceeds elastic limits.”

Interagency transfers of adjudication authority such as this one destabilize some fundamental administrative law norms, including the expectation that agencies are constantly attempting to “empire build,” augment their joint capacity, or even compete for power. Instead, this type of arrangement represents an agency’s desire to reduce its delegated power and attendant responsibility by shifting them to another agency. Another presumption is that agency coordination results from the legislative delegation of authority to multiple agencies. However, the agreement between DHS and the DOL was based in regulation, and these types of arrangements are even more often created by Memoranda of Understanding. Thus, while these arrangements are substantive, they are also informal and unanchored. In addition, these agreements do not involve a division of tasks among agencies, but rather, the complete transfer of final decision-making power from one agency to another. In this way, they exceed traditionally accepted bounds of both intra- and interagency delegation by essentially permitting agencies to redefine their own jurisdictions.

For these reasons, these agreements raise important issues, including whether the agencies participating in them are acting and/or delegating on the basis of legitimate authority, as was the concern in the Tenth Circuit’s decision; when agency interactions in general may be appropriations of legislative power; and whether most interagency coordination is, as assumed, constitutional. However, these endogenous changes to administrative structure also offer significant potential advantages to agency decision making. These include the maintenance of centralized responsibility for a set of adjudication processes, which could improve its quality and consistency; more predictable burden shifting, including in instances when it might benefit both the agencies involved and the adjudication regime at issue; and the preservation of agencies’ core functional mandates in the face of coalitional drift caused by arbitrary, political, or punitive new legislative constraints.

Further, the Tenth Circuit was hasty in its determination that the transfer of the power to adjudicate H-2B worker visas from DHS and the DOL was not a legitimate interpretation of statute. As mentioned earlier, these two agencies based this transfer on legislative authority requiring that DHS consult with another agency of its choosing in order to adjudicate these petitions. What the court overlooks, in its narrowly textual reading of “consult,” is history indicating that the regulation authorizing the transfer of adjudication authority was in fact the concretization of a successful, on-going and case-by-case consultative relationship between DHS and the DOL. In other words, the transfer of the final authority to adjudicate these claims happened only after these agencies shared the adjudication of these decisions for some time and, as a result, established that the DOL could do the job more efficiently on its own. In my view, interagency transfers of adjudication authority should be deemed legitimate if based, as in this case, on statutory language empowering agencies to coordinate, consult, or otherwise interact—in particular, to the extent the agreement to transfer authority furthers the ideals of good governance that drive Congress to authorize agencies to coordinate, and within a robust system of interbranch oversight.

Bijal Shah is an Associate Professor of Law at the Arizona State University, Sandra Day O’Connor College of Law.

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