Agency Motivations in Exercising Discretion

Abstract

The search for the optimal structure and performance of the administrative or regulatory state in the United States has been ongoing for decades and shows no signs of abating anytime soon. It has spawned a rich debate about the role of key federal government actors, including the judicial, legislative, and executive branches. Consideration of the appropriate roles for administrative agencies, sometimes referred to as the fourth branch of government, has been one of the important strands in this debate. The enormous reach and impact of the administrative state no doubt contributes to the extraordinary amount of attention to and interest in how our government operates. One issue that continues to attract significant attention concerns how much discretion agencies should enjoy in the operation of the administrative state. Another is why agencies act as they do when they have discretion to pursue different courses of action. A forthcoming paper, Agency Behavior and Discretion on Remand, co-authored by leading administrative law scholars Robert L. Glicksman and Emily Hammond, considers how agencies exercise their discretion when a court invalidates an agency action. Professors Glicksman and Hammond hypothesize that four variables in particular may affect influence agency action in the remand context (the type of remand, the timetable for agency response, the valence of the agency’s action, and the timing of the Presidential Administration). My purpose is to suggest that at least four additional variables may influence agency discretionary actions on remand. These include the nature of the statutory scheme an agency is implementing, the distribution of power among relevant actors, the legal and other mechanisms available to the agency to act, and the substantive goals the agency hopes to achieve. My hope is that this paper, in tandem with that by Professors Glicksman and Hammond, will ultimately contribute to an improved understanding of factors that shape agency behavior.