Elliott Karr · June 2009
77 GEO. WASH. L. REV. 1080 (2009)
The creation of independent agencies within the executive branch has produced a significant amount of scholarly debate about how the executive power should be distributed within the federal government. Although the existence of these independent agencies is likely to continue, the debate over how much control the President, or his political appointees, should have over these independent agencies persists. One often overlooked area of executive control over independent agencies is the ability to litigate cases, particularly before the Supreme Court. Through the Office of the Solicitor General, the ability to bring and defend cases at the Supreme Court is generally centralized in one office. This centralization acts as a check on the ability of independent agencies to engage in policymaking at odds with the current administration by controlling the arguments the agencies can make and the cases they are able to bring at the Supreme Court.
In certain situations, however, Congress has provided these independent agencies with the ability to petition the Supreme Court. The ability to petition ensures the agency’s views on particular areas of law are heard by the Court. This Essay examines the involvement of the Solicitor General when an agency attempts to petition the Court. In particular, this Essay argues that the Supreme Court encourages, through its rules and by “Calling for the Views of the Solicitor General,” increased involvement on the part of the Solicitor General, and that this involvement effectively limits the authority of independent agencies.
To illustrate the separation of power concerns at play, this Essay considers in turn the actions of the executive, legislative, and judicial branches concerning the litigating authority of one such “independent” agency, the Federal Trade Commission (“FTC”). Part I of the Essay provides background information on the history of the independent agencies, as well as how government litigation is controlled. Part II discusses methods the executive branch has taken to attempt to increase the centralization of the control agency litigation. Part III describes the situation that led Congress to grant independent litigating authority to the FTC. Part IV considers some of the responses by the Supreme Court toward independent litigating authority. Finally, Part V addresses the impact of the Court’s responses on the agencies.
