Why Agencies?

A threshold question you may have as you embark on your study of administrative law is why we have agencies at all. The simple answer to this question is that agencies help the more traditional branches of government accomplish their ends—that is, agencies are the agents (in the principal-agent sense) of our legal system. Agencies exist because legislation delegates responsibilities to agencies. In doing so, Congress often leaves agencies with substantial discretion in pursuing certain goals. For instance, Congress might task agencies via statute with serving the “public interest” in a particular subject-matter domain, but it might leave many or even most details about what is actually in the public interest for the agency to figure out. (Note that there may be constitutional limits to how much discretion Congress can leave to agencies, and we will explore how courts have dealt with that question later in the course.)

It might be possible to imagine a world in which Congress, through highly reticulated statutory language, obviates the need to rely on delegation of any tasks to agencies. Perhaps statutes could say with exacting precision everything private actors might need to know about what the law is, and all that remains is enforcement actions brought in a court. (Notice that even this barebones setup requires at least one agency—the Department of Justice—unless we require that the President personally undertake all enforcement actions.) Or perhaps Congress might pass statutes that leave many details unresolved but lodge responsibility for the implementation of the delegated authority in some other institutional actor other than agencies, such as the President or the courts.

In practice, Congress has rarely elected to follow this model. Even going back to the very earliest days of the nation, Congress has passed statutes creating all sorts of agencies and giving them substantial discretion. See, e.g., Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288 (2021); Christine Kexel Chabot, The Lost History of Delegation at the Founding, 56 Georgia L. Rev. 81 (2020); Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012).  The Constitution itself seems to contemplate the existence of at least some agencies when it refers to “Heads of Departments” within the executive branch. See U.S. Const. art. II, § 2, cl. 2. Arguably, Congress has scaled up its reliance on this sort of arrangement over the past century or so as it has attempted to use public law and regulation to solve more social problems, but there is much historical practice behind delegation to agencies.

Why might Congress prefer to delegate responsibilities to agencies? This is a very complicated question, but watch the video linked above and think about the advantages of designing a system for implementation of Congress’s statutes this way. Then think about some of the disadvantages. We’ll discuss your thoughts in class. Understanding why Congress designates agencies as the repository of so much of the government’s power goes a long way towards an understanding of administrative law.