Should Agencies Enforce?

This Article explores an important but understudied structural choice: the decision to vest enforcement authority in administrative agencies. Each year, agencies routinely bring enforcement actions producing billions of dollars in civil penalties and industry-reshaping consent decrees. Where do they get this power? Congress grants enforcement authority to administrative agencies because it believes that agency subject matter expertise will generate appropriate enforcement choices. Similarly, the Supreme Court has strongly deferred to agency enforcement because it sees it as intimately intertwined with other agency regulatory decisions. Scholars have also generally taken for granted that specialist agencies will be enforcement experts because they are experts in their industry. We assume enforcement expertise follows regulatory expertise. Does it? This Article argues, contrary to the conventional wisdom, that enforcement itself is a specialization. While enforcement choices have aspects that are subject-matter specific, other components, particularly the effective exercise of prosecutorial discretion, are independent of the industry regulated. As a result, giving enforcement authority to a specialized agency rather than a generalist enforcer like the Department of Justice involves a decision to select one form of expertise over another. Similarly, the choice requires selecting between the structural strengths and weaknesses that come with enforcement specialization. Political pressures on specialized enforcers and the narrow scope of their authority produce undesirable effects on enforcement outcomes. However, specialist agencies have a wider range of alternatives and bring a deeper understanding of industry norms to the enforcement process than a generalist enforcer. These comparative strengths and weaknesses of generalist and specialist enforcement provide important lessons for legislators, judges, and agencies. Congress needs to consider the enforcement tradeoff when determining the scope of agency enforcement authority. Courts should recognize these costs and benefits in setting the level of deference to enforcement decisions. Finally, agencies themselves should recognize their strengths and weaknesses in coordinating enforcement choices