Executive Control of Agency Adjudication: Capacity, Selection, and Precedential Rulemaking

• Published in: Journal of law, economics, & organization economics, & organization, 2023-11, Vol.39 (3), p.682-721
• Main Authors: Hausman, David K, Ho, Daniel E, Krass, Mark S, McDonough, Anne
• Format: Article
• Language: English
• ISSN: 8756-6222; 1465-7341
• DOI: 10.1093/jleo/ewac012

Abstract While the volume of adjudication by federal agencies far outstrips the volume of cases decided by the federal judiciary, researchers have devoted relatively little attention to agency adjudication and political control thereof. We study three mechanisms of presidential control of immigration adjudication: capacity-building, selection, and precedential rulemaking. First, consistent with work on bureaucratic capacity, the Trump administration achieved its goal of increasing removals of noncitizens through an unprecedented increase in total hiring of immigration judges (IJs). Second, contrary to expectations from the literatures on judicial behavior and bureaucratic politics, we find little evidence of partisan effects in IJ selection. Third, we demonstrate the substantial power of what we call “precedential rulemaking”—the power by the Attorney General to select cases in which to issue binding precedent. These results illustrate the importance of incorporating mechanisms of supervisory and legal control into the study of administrative courts.