Conventional accounts portray agency design as the outcome of congressional and presidential quests for political control. This perspective aligns with administrative law’s preoccupation with agencies’ external constraints. The main unit of analysis from this point of view is the agency, and the central question is how political principals outside of the agency restrain it. In reality, however, agency actors must also abide by controls internal to the agency: how do these mechanisms arise and what explains their design? For their part, legislative and executive specifications invariably leave organizational slack. Agency heads thus possess substantial discretion to impose internal structures and processes to further their own interests. By and large, however, agency heads have been neglected as important determinants of institutional design. Indeed, like the need for interagency coordination, the bureaucracy requires intra-agency coordination.
This Article seeks to provide a general account of how agency heads, distinct from Congress or the President, manage and operate their organizational divisions. It presents a theory of how administrative leaders use internal hierarchies and procedures to process information in light of their individual preferences and exogenous uncertainties. In doing so, this Article offers a conceptual framework to analyze agency design problems as well as to explain variations in bureaucratic form. Armed with these insights, the analysis then considers some of the resulting normative implications for political and legal oversight. It concludes by suggesting various reforms such as the judicially enforceable disclosure of agencies’ internal rule-drafting processes, as well as doctrines further designed to foster transparency and accountability.
*Neubauer Family Assistant Professor, University of Chicago Law School. Many thanks to Douglas Baird, Tony Casey, Don Elliott, David Engstrom, Yoon-Ho Alex Lee, Saul Levmore, Jerry Mashaw, Jonathan Masur, Al McGartland, Richard Morgenstern, Jonathan Nash, Anne Joseph O’Connell, Eric Posner, Richard Posner, Susan Rose-Ackerman, Charles Shanor, Peter Strauss, Michael Vandenbergh, Christopher Walker, and David Weisbach for helpful comments and conversations. Thanks also to workshop participants at Berkeley and the University of Chicago law schools; Emory’s Conference on Law and the Social Order; University of Chicago’s Conference on Federal Agency Decision-Making Under Deep Uncertainty; and Yale’s Conference on Comparative Administrative Law. Siobhan Fabio, John Holler, Christine Ricardo, and Patrick Valenti provided superb research assistance.