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Forthcoming in 68 Administrative Law Review (December 2016).

Abstract

A long-standing view among legal scholars, political scientists, sociologists, and regulators posits that it is important for a regulatory agency to have a narrowly-defined core mission and to focus on activities that are central to accomplishing it successfully. Although this view has no doctrinal foundation, rhetoric grounded on it crops up frequently in regulatory dialogues, especially in opposition to prospective agency regulations. The purpose of this Article is to formalize this “core-mission model” of the administrative state and analyze its benefits, costs, and risks. An important starting point for the analysis is that, unlike a private corporation or a non-profit organization, a regulatory agency is not a free enterprise in a competitive market. Instead, as a “creature of statutes,” it stands in a principal-agent relationship with Congress, whose job in turn is to respond to society’s various needs and problems, as they arise, by delegating responsibilities to new or existing agencies. Given this relationship, the core-mission model has to be operationalized in one of two ways: either as an ex post prioritizing strategy (on the part of the agency) or as an ex ante delegating strategy (on the part of Congress). Both strategies, however, entail significant costs on the government and society. As an ex post prioritizing strategy, the model promotes selective attention, which can, on the one hand, reduce internal organizational costs for the agency (“intra-agency coordination costs”) but, on the other hand, give rise to regulatory gaps and lead to costly outcomes, such as crises or controversies. As an ex ante delegating strategy, the model is not cost-effective where considerations based on conflicts among multiple agencies (“inter-agency coordination costs”) and/or wasteful duplication of government resources (“duplicative costs”) call for a deviation from the model, such as a conglomerate agency with a more intentional administrative design. In other words, a transaction-cost-based approach to agency jurisdiction design can sometimes counsel against subscription to the core-mission model. Consequently, this Article argues that, in order to maintain its relevance in today’s regulatory dialogues, the core-mission model should be recast under a more general framework and subsumed into discussions of these broader categories of social costs as well as considerations of alternative designs within each agency. The focus of these dialogues should likewise move from how well an assignment is aligned with the agency’s core mission to how to effectively “cover” all interests that need protection through regulation, without wasting government resources.

Disciplines

Administrative Law | Agency | Law

Date of this Version

8-4-2016

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