Adam Crews

Document Type



Administrative Law | Courts | Jurisdiction | Litigation


For over seventy years, the Supreme Court has said that a justiciable controversy can exist when one agency in the federal executive branch sues another. Although this raises intuitive concerns under both Article II (relating to presidential control) and Article III (relating to standing), scholars and judges have paid scant attention to the constitutional foundation for interagency litigation. Of those who have explored the topic, defenders and opponents alike agree on one thing: the foundation—or lack of one—depends on Article III’s case-or-controversy requirement.

That is mistaken. A better approach to understand interagency litigation is to step outside Article III and turn attention to Article I. When authorized by Congress, adjudicating interagency litigation is a function that a federal court can perform outside ordinary Article III justiciability rules because the resulting decision is not necessarily an exercise of the judicial power. The adjudication’s finality flows not from Article III, but from Congress’s providing a statutory decision rule that renders the court’s resolution conclusive of the litigated issues—a decision rule that the President must respect under Article II’s Take Care Clause. The central constitutional question is whether the Necessary and Proper Clause allows Congress to assign this function to federal courts. Significant historical practice suggests that it can.

This novel Article I theory of interagency litigation has many advantages over competing theories: it best explains existing cases; comports with text, history, and precedent on judicial independence; and gives due respect to all branches of government. It may also shed light on other current issues in administrative law, ranging from Chevron to remedies.