Abstract

With a few exceptions, the Solicitor General controls all aspects of independent agency litigation before the Supreme Court. Solicitor General control of Supreme Court litigation creates a tension between independent agency freedom and the Solicitor General's authority. On the one hand, Solicitor General control provides the United States with a unitary voice before the Supreme Court, and provides the Court with a trustworthy litigator to explicate the government's position. On the other hand, such control may undermine the autonomy of independent agency decision making. In this Article, the author argues for a hybrid model of independent agency litigation in the Supreme Court: so long as there are independent agencies, Congress should allow independent agency self-representation whenever the Solicitor General is unwilling to advocate the agency's interests. Thus, when disagreements between the Solicitor General and an independent agency are irreconcilable, the independent agency should be allowed to go its own way. The author concludes by connecting the issue of Solicitor General-independent agency relations to the larger debate over the unitary executive, arguing that the unitary executive is the only theory which supports Solicitor General control of independent agency litigation. In other words, to the extent that there is dissatisfaction with limiting Solicitor General control of Supreme Court litigation, that dissatisfaction speaks to the elimination of independent agency authority to reach decisions at odds with the executive.

Document Type

Article

Publication Information

82 California Law Review 255-327 (1994)

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