Uncovering Coordinated Interagency Adjudication

B. Forming Executive Oversight Coordinated administrative adjudication requires efficient, effective executive oversight that takes into account the newly diluted decisional independence doctrine. (227) The first criterion for this type of executive oversight is a focus on the coordination components of interagency adjudicative processes, not on the substance of the coordinated adjudication. This criterion is similar to Andrias's suggestion that the main, or perhaps only, goal of executive branch oversight in the enforcement context should be to improve the quality of interagency coordination. (228) A focus on the coordination component alone would engender executive oversight of coordinated adjudication that is both tenable and that remains within the bounds of shifting decisional independence doctrine. If oversight does not directly target the substance of adjudicative outcomes, it is less likely to influence those outcomes and more likely to emphasize the quality of coordination in these processes regardless of the outcomes. One important consideration in the creation of focused oversight is whether this oversight should be ex ante or ex post. (229) The distinction between ex ante and ex post mechanisms is also particularly important within the context of decisional independence. 1. Ex Post v. Ex Ante.--Ex post executive oversight of agency adjudication is rare. One potential example of ex post oversight can be found in the immigration context. Here, the Board of Immigration Appeals (BIA) has a practice of publishing certain cases to serve specifically as guidelines for lower tribunals. (230) However, whether this particular practice is an ex post or ex ante oversight measure is up for debate--while this measure evaluates the quality of substantive outcomes after the adjudication is complete, it does so not to change those specific outcomes (which may remain untouched), but rather to provide guidance for the structure of future adjudications. This intention arguably establishes this practice as ex ante oversight. Some scholars, however, could feasibly be seen as characterizing this oversight as ex post because it involves outcome review. (231) The reason ex post review is disfavored is because courts have characterized ex post actions as more problematic for administrative adjudicators' decisional independence than ex ante oversight, due to the former's specific influence on the substance of particular adjudicative outcomes. For instance: To take a very well-known example, the Social Security Administration created reform programs aimed at promoting more consistency across agency [administrative law judges, or] ALJs. The programs included a peer review program, monthly production goals, and a quality assurance system that zeroed in on certain ALJs who had what the agency viewed to be skewed reversal rates. When the programs were challenged, the first two were deemed consistent with ALJ independence, but the reviewing court thought that the last measure potentially infringed ALJs' decisional independence. The bottom line is that senior agency officials can "manage" adjudication only to the extent that that supervision does not relate to the resolution of particular cases. (231) As will be discussed later, concerns about preserving decisional independence need not be as acute when considering oversight of coordinated adjudication, as opposed to purely intra-agency adjudication processes. However, courts' remaining interest in preserving decisional independence may favor ex ante measures, such as the first two implemented by the Social Security Administration in this example. (234) As Professor Jennifer Nou notes while contemplating rulemaking, "ex ante mechanisms of control ... allow for significant agency slack and discretion over individual rules and regulatory decisions." (235) While this is precisely why "Presidents have opted for more institutionalized and systematic mechanisms of ex post oversight through regulatory review," (236) ex ante oversight of coordinated interagency adjudication may better satisfy those who value agency adjudicator flexibility. …