Notice & Comment

Shah on Interagency Adjudication Coordination (AdLaw Bridge Series)

A hot topic in administrative law is how to deal with congressional delegation of lawmaking authority to multiple agencies—with Jody Freeman and Jim Rossi’s terrific 2012 article coming immediately to mind. Most of this inquiry has focused on agency rulemaking and the role of the President (via the OMB/OIRA) in coordinating multi-agency regulatory efforts. So it is refreshing to see that the Harvard Law Review has published an excellent article that focuses on multiagency lawmaking in the adjudication context.

In Uncovering Coordinated Interagency Adjudication, Bijal Shah conducts a comprehensive examination of the rise of multiagency adjudication and the coordination problems that follow. The obvious example is immigration, after the creation of the Department of Homeland Security and the shared regulatory responsibility between DHS and the Justice Department. But Professor Shah explores a number of other interagency adjudication schemes and highlights the coordination problems that have arisen. Here’s more about the article, from the abstract:

Administrative adjudication often involves interagency coordination. This Article establishes that this phenomenon, which it terms “coordinated interagency adjudication,” exists in many areas of public law with large administrative adjudication caseloads. These areas include immigration and customs, general employment policy and employment discrimination, domestic security, and health and safety. Interagency adjudication requires special attention because of the rule-of-law and jurisdictional matters implicated by the extension and coordination of adjudication across institutional boundaries.

The aim of coordinated interagency adjudication is to employ the resources of multiple agencies to improve determinations of statutory violations or of administrative claims for benefits. However, coordinated administrative adjudication across agencies may have problematic consequences. For example, in the area of immigration, poorly administered coordination between the Department of Homeland Security and the Department of Justice caused gross violations of the rights of asylum seekers and mentally incompetent noncitizens. These events, in turn, led to two recent high-profile class action lawsuits against the government. Just as importantly, the phenomenon of coordinated interagency adjudication highlights broader questions concerning the reach of judicial review of administrative activity and the breadth of agencies’ authority to determine their own jurisdiction.

Despite the significance of interagency coordination to large swaths of administrative adjudication and the complications it has caused in the immigration context, scholars, the courts, and even the executive branch itself remain relatively unaware of it. This Article remedies this lack of awareness. It brings to light coordinated interagency adjudication processes by presenting instances of this phenomenon in a comprehensive typology involving a number of different executive branch agencies.

In addition, it argues that, because of the complexities of adjudication across agency boundaries, these processes escape the evaluation necessary to ensure their quality. Therefore, executive branch oversight is required both to prevent coordination fiascos such as those wrought in the immigration context and to ensure that agencies remain within reasonable jurisdictional bounds. As such, this Article proposes the establishment of context-specific, narrowly focused, ex ante executive branch oversight of coordinated adjudication processes.

Jennifer Nou has penned a short response to the article, with the following summary from the SSRN abstract:

The administrative state’s experience with presidential oversight thus far offers some lessons that should temper the case for centralized executive branch control, especially in the context of agency adjudication. This Response to Bijal Shah’s Uncovering Coordinated Interagency Adjudication identifies some of the less recognized costs and limited benefits of coordination that may help to explain why the President often refrains from exercising such oversight in practice. In light of these dynamics, the discussion considers other candidate coordinators outside of the executive branch, such as the Judicial Conference, the Administrative Office of the Courts, and the Administrative Conference of the United States. These entities, of course, have their own institutional limitations and drawbacks, which may mitigate their effectiveness. The more general effort here is to broaden the lens of agency coordinators beyond that of the Office of Information and Regulatory Affairs (OIRA) and other executive branch entities.

I agree with Professor Nou that one of the more interesting findings from Professor Shah’s examination is the very informal nature of the coordination agreement between agencies—which is often in the form of an interagency memorandum if even that formalized. And Professor Shah’s call for more ex ante interagency coordination is a sound one. But like Professor Nou, I’m not sure which coordinator would be the most effective. At this stage, figuring out the best coordinator seems like a productive project for ACUS to pursue.

In all events, this article makes an important contribution to the literature on multiple agency coordination. I look forward to reading more of Professor Shah’s scholarship along these lines.


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