Administrative Law Article 125 Harv. L. Rev. 1131

Agency Coordination in Shared Regulatory Space



Interagency coordination is one of the great challenges of modern governance. This Article explains why lawmakers frequently assign overlapping and fragmented delegations that require agencies to “share regulatory space,” why these delegations are so pervasive and stubborn, and why consolidating or eliminating agency functions will not solve the problems these delegations create. Congress, the President, and agencies have a variety of tools at their disposal to manage coordination challenges effectively, including agency interaction requirements, formal interagency agreements, and joint policymaking.

This Article also assesses the relative strengths and weaknesses of these coordination tools using the normative criteria of efficiency, effectiveness, and accountability, and it concludes that the benefits of coordination will frequently be substantial. To varying extents, these instruments can reduce regulatory costs for both government and the private sector, improve expertise, and ameliorate the risk of bureaucratic drift without compromising transparency. Coordination can also help to preserve the functional benefits of shared or overlapping authority, such as promoting interagency competition and accountability, while minimizing dysfunctions like discordant policy.

Shared regulatory space can be challenging for the executive branch, but it also presents the President with a powerful and unique opportunity to put his stamp on agency policy. This Article recommends a comprehensive executive branch effort to promote stronger interagency coordination and improve coordination instruments. Any presidential exercise of centralized supervision will often be politically contentious and must, of course, operate within legal bounds. On balance, however, presidential leadership will be crucial to managing the serious coordination challenges presented by modern governance, and existing political and legal checks on potential overreach are sufficient to manage any conflicts with Congress.

This Article concludes by exploring the implications of enhanced interagency coordination for judicial review. Courts might adjust standards of review to promote coordination, but even if they do not, policy decisions arrived at through strong interagency coordination likely will attract greater deference. Greater coordination is relatively unlikely to impact the outcome of the Chevron inquiry when reviewing agency legal interpretations. Some minor doctrinal adjustments could lead to greater deference where agencies use certain coordination instruments to adopt shared interpretations, but no major change in how courts approach judicial review is necessary for coordination to flourish.

The larger conceptual purpose of this Article is to draw attention to the phenomenon of shared regulatory space and highlight the pressing need for interagency coordination as a response. It invites scholars and practitioners to focus on interagency dynamics, which requires a departure from the single-agency focus that has traditionally been central to administrative law.