The Design of Agency Interactions

Administrative law scholarship has tended to contemplate agencies in isolation from each other, subject only to the control of Congress, the President, and the courts. At the same time, it has tended to regard the structuring of the administrative state, its division into multiple agencies and departments, either as an artifact or as simply a mechanism of congressional control. This Article argues that the interactions of agencies with each other are as important a part of the administrative structure as the division of responsibilities itself. It identifies a particular form of interaction, here labeled the “rule-based interface,” that, contrary to the conventional expectation, is a deliberately designed mechanism for presidential control of the administration. This Article presents a theory of complexity in regulation, in which rule-based interfaces constitute a systematic effort to coordinate regulation of a particular category of complex regulatory problems called “orthogonal- interests problems.” For such problems, the traditional tools of presidential control are at their weakest; a division of responsibility between agencies, coupled with a rule-based interface between them, helps to strengthen the President’s hand in the face of complexity. Once the complete structure of the administrative state, including interactions, is taken into account, it appears that this structure is the negotiated product of both presidential and congressional input, not just a tool for constraining executive action