NCJ Number
73038
Journal
Yale Law Journal Volume: 89 Issue: 8 Dated: (July 1980) Pages: 1595-1622
Date Published
1980
Length
28 pages
Annotation
The viewpoint that executive branch departments and agencies should have an opportunity to litigate disputes about Congressional allocations of regulatory power in Federal court is argued.
Abstract
The current practice of informal resolution of interagency legal disputes within the executive branch occasionally compromises the public interest. Although politically autonomous bodies like the Interstate Commerce Commission have long been able to oppose the Justsice Department in Federal court, cabinet level departments and nonindependent agencies have assumed no such capacity. Delays and uncertainties regarding the Federal administrative process have resulted. Many disputes within the executive branch focus on the construction of statutes granting regulatory power to the agencies. The dispute now proceeds through two stages. First, the issues are argued and resolved within the executive branch. Second, the issues are reexamined in judicial review proceedings commenced by a private party, usually the director of the agency. Within this two-step procedure the Justice Department first serves as arbiter for the disputants and then acts as counsel for the United States. Disputes turning upon confusing statutory language could be resolved more effectively if interagency litigation were available. The agency head should be permitted to commence a public law version of an action to quiet title, and the question of whether to litigate or to use other settlement mechanisms should rest in each case with the dispute's principals. This method would eliminate uncertainty and delay in resolution and would ensure procedural regularity. An interbranch legal dispute is justiciabile and such procedures would not violate current norms of justiciability associated with Article III of the Constitution. Footnotes are included.