LEXSEE 61 law & contemp prob 205

Copyright (c) 1998 Law and Contemporary Problems

Law and Contemporary Problems

Winter, 1998

61 Law & Contemp. Prob. 205

LENGTH: 11214 words

GOVERNMENT LAWYERING: THE BATTLE THAT NEVER WAS: CONGRESS, THE WHITE HOUSE, AND
AGENCY LITIGATION AUTHORITY

Neal Devins * and Michael Herz **

* Ernest W. Goodrich Professor of Law and Lecturer in Government, College of William and Mary.
** Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. Thanks to John Yoo and John
McGinnis for comments on an earlier draft of this essay.

SUMMARY:
... Through its lawmaking and oversight powers, Congress has more powerful and direct tools for defining the scope
and content of legal policymaking. ... The content of regulatory policy, moreover, is affected by the distribution of
litigation authority. ... Moreover, when it comes to litigation, agencies have significant control over the reach and
content of DOJ decisionmaking. ... Through legislation, hearings, and investigations, these committees can affect both
the sweep and content of administrative enforcement and agency rulemaking....

TEXT:
[*205]
I Introduction

Who should speak the government's voice in court? Specifically, are the interests of the United States better
represented by generalist litigators in the Department of Justice ("DOJ") or agency lawyers with subject matter
expertise? For DOJ and agency lawyers, this question is of monumental importance. For members of Congress and their
staff, however, this question is almost always a nonstarter.
Witness, for example, our experience in conducting a study for the Administrative Conference of the United States
("ACUS") on DOJ control of government litigation, nl Before the study was approved, C. Boyden Gray, President
Bush's White House Counsel and a member of ACUS's board, insisted that the project be blessed by Clinton Justice
Department officials. Once approved, n2 the project provoked dramatically different responses from agency and DOJ
officials as well as congressional overseers. For agency lawyers, our project was a breath of fresh air - a chance to extol
their underutilized litigation skills and vent frustration at DOJ. For some DOJ officials, our project was an invitation to
disaster. Indeed, our inquiries about the distribution of litigation authority prompted one high-ranking DOJ official to
lobby ACUS to kill the project. In the halls of Congress, however, staffers on the Senate Judiciary and House Energy
and Commerce committees wondered why two law professors would invest so much energy in a project that held so
little interest.
 LEXSEE 82 cal 1 rev 255

Copyright (c) 1994 California Law Review

California Law Review

March, 1994

82 Calif. L. Rev. 255

LENGTH: 45760 words

Unitariness and Independence: Solicitor General Control over Independent Agency Litigation

Copyright 1994 California Law Review, Inc.

Neal Devins *

* Professor of Law, Lecturer in Government, College of William and Mary. B.A. 1978, Georgetown University;
J.D. 1982, Vanderbilt Law School. Thanks to Dawn Darkes, Brook Edinger, and Wendy Watson for research assistance;
to those current and former government officials who shared their time and insights with me; and to participants at an
Emory Law School faculty workshop, participants at the Executive Branch Interpretation Symposium at the Benjamin
N. Cardozo School of Law, and participants at an American Association of Law Schools Constitutional Law Workshop
at the University of Michigan School of Law both for enduring presentations of an earlier version of this paper and for
offering countless insights on Solicitor General advocacy.

SUMMARY:
... With a few exceptions, the Solicitor General controls all aspects of independent agency litigation before the
Supreme Court. ... Unlike the FTC, whose very independence was threatened by Department of Justice dominion over
all litigation, the SEC already possessed independent litigating authority in all courts except the Supreme Court. ...
Instead, assuming that independent agencies may reach policy decisions at odds with the Executive Branch, Congress
should adopt a hybrid model where an independent agency, while otherwise bound to Solicitor General representation,
has a presumptive right to pursue a case before the Court when the Solicitor General either perceives the case unworthy
of certiorari or disagrees on the merits. ... Factors that explain this variable treatment include the following: the
likelihood of agency positions conflicting with other government positions, especially those of the Department of
Justice; the willingness of Congress to intercede statutorily on an agency's behalf; the sweep of independent litigating
authority, cease and desist authority, and other powers which empower an independent agency and insulate it from the
Executive Branch; and the likelihood that independent agency action conflicts with White House agenda items. ...
Centralization of litigating authority within the Department of Justice provides a chief mechanism by which the
Executive Branch can coordinate governmental decisionmaking....

TEXT:
[*255]
With a few exceptions, the Solicitor General controls all aspects of independent agency litigation before the
Supreme Court. Solicitor General control of Supreme Court litigation creates a tension between independent agency
freedom and the Solicitor General's authority. On the one hand, Solicitor General control provides the United States
with a unitary voice before the Supreme Court, and provides the Court with a trustworthy litigator to explicate the
government's position. On the other hand, such control may undermine the autonomy of independent agency
decisionmaking. In this Article, the author argues for a hybrid model of independent agency litigation in the Supreme
Court: so long as there are independent agencies, Congress should allow independent agency self-representation
 LEXSEE 32 wm & mary 1 rev 893

Copyright (c) 1991 College of William & Mary.

William & Mary Law Review.

SUMMER, 1991

32 Wm and Mary L. Rev. 893

LENGTH: 57973 words

ARTICLE: UNITED STATES v. UNITED STATES: WHEN CAN THE

FEDERAL GOVERNMENT SUE ITSELF?

MICHAEL HERZ *

* Assistant Professor, Benjamin N. Cardozo School of Law, Yeshiva University. B.A., Swarthmore College, 1979;
J.D., University of Chicago Law School, 1982. I would like to thank David Carlson, Richard Revesz, Paul Shupack,
and, especially, David Strauss for helpful comments on earlier drafts.

SUMMARY:
... Ambivalence does not create a justiciable controversy, even if you are your own worst enemy. ... One might
plausibly distinguish those involving at least one independent agency from those involving only executive agencies;
those with only governmental parties from those in which private parties are also present; or those in which the agencies
have separate representation from those in which DOJ represents all parties. ... There are critical differences among (1)
disputes in which one agency, like a private party, is subject to the regulatory authority of the other; (2) disputes over
turn; and (3) disputes arising out of a disagreement over regulatory policy, when both agencies are acting in their
regulatory capacities. ... Simply invoking the unitary executive as the mechanism for executive branch decisionmaking
and a complete bar on interagency litigation, however, is as incomplete as saying that intragovernmental litigation is
nonjusticiable because one cannot have a justiciable controversy with oneself. ... If independent agencies must be part
of the executive branch, then the general principle that interbranch litigation is justiciable cannot be the justification for
allowing suits in which one party is an independent agency, but not suits between two executive agencies. ... The
President's constitutional prerogative to manage the executive branch raises perhaps more difficult justiciability
questions....

TEXT:
f*894] I. INTRODUCTION
The concept of the "divided self is a staple of college literature courses, psychiatry, and daily conversation. But it
is not a concept that the judiciary readily acknowledges. However divided you may be, you may not, in general, sue
yourself, nl Ambivalence does not create a justiciable controversy, even if you are your own worst enemy.
That a lawsuit, by definition, requires at least two parties has always been clear to common law courts. Federal
courts have [*895] found the same principle in the Constitution's case-or-controversy requirement. n2 The talismanic
"a person cannot sue herself collapses, however, when the "person" is the United States government. In practice,
different parts of the government often end up on opposing sides of the same lawsuit. Although a caption as frank as
United States v. United States n3 is uncommon, courts have rarely hesitated to hear intragovernmental disputes. The