Both the structure of the Constitution and elementary civics texts imagine an Executive Branch under the close, unitary control of an elected chief executive, the President. Doubtless from the start, and unmistakably in the administrative state, the reality has been quite different. Those to whom Congress has delegated authority to act, particularly in that domain that we have in mind when invoking a "government of laws," conduct their business within a web more aptly described as coordination than control. In regulatory matters, the coordinating impulses run through the Department of Justice ("DOJ") and, increasingly, the Office of Information and Regulatory Affairs ("OIRA") of the presidential Office of Management and Budget ("OMB"). Perhaps as strongly, coordination may result from the regulators and their lawyers understanding themselves to be part of a single government. Yet, both within the DOJ and within any given agency, distortions of perspective that are the product of an actor's task, or perhaps even personal ambition, can complicate its achievement. And institutions for forcing consideration of broader, more inclusive visions are few.
What follows is an effort to explore some of these problems, drawing on personal experience as a government attorney often faced by what seemed failures or distortions in attempted coordination. From 1975 to 1977, I was privileged to serve as General Counsel to the spanking new United States Nuclear Regulatory Commission ("NRC"). The NRC was an independent regulatory commission created out of one rib of the Atomic Energy Commission. Its very newness and the special character of its responsibilities created opportunities to consider the legal relations within executive government that remain timely sources of concern two decades later. Three vignettes, all involving relations with government attorneys in other offices, will suggest some dimensions of the problem.
Peter L. Strauss,
The Internal Relations of Government: Cautionary Tales from Inside the Black Box,
Law and Contemp. Probs.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/427