Publication Date
Fall 2024
First Page
157
Document Type
Article
Abstract
Although expertise is a pillar of public administration and administrative law, the government is increasingly missing experts. The U.S. federal government faces a personnel crisis of staggering proportions, with sharp pain points in civil service hiring—especially in science and technology—and the political appointments process. With urgent challenges like the rapid development of artificial intelligence, national cybersecurity, and climate change, an inadequate workforce raises fundamental concerns for legitimate governance.
This Article documents a novel and important way that agencies are responding to this crisis: temporary assignments into federal agencies, what we call “governing by assignment,” under the Intergovernmental Personnel Act of 1970 (IPA). To date, legal scholarship, casebooks, and treatises have missed this trend. But Beltway insiders have not. Congressional inquiries question the legality of governing by assignment, raising basic questions about its scope, authority, and utility. We intervene in this pressing debate by providing the first systematic account of the administrative law of governing by assignment and by spelling out key nuances in IPA practice to inform policy discussions about governmental capacity and good governance norms.
Empirically, we show that federal agencies have increasingly used the IPA to fill important roles throughout the executive branch, ranging from twelve percent of the National Science Foundation’s staff to the interim head of the Department of Justice’s Civil Rights Division to data scientists analyzing the Internal Revenue Service’s tax auditing data. While neglected by scholarship to date, governing by assignment is pervasive.
Theoretically, we offer a framework for understanding these different uses and their drivers. Governing by assignment consists of three modalities: staffing, leadership, and projects. Each responds to different pressures on the administrative state, and each raises unique policy considerations. We show how structural shifts in government personnel have led agencies to rely on governing by assignment to achieve critical missions.
Legally, governing by assignment raises significant questions of administrative law. Assignees are sui generis, residing at conceptual boundaries between employees, contractors, civil servants, and political appointees. We bring them into the light, analyzing governing by assignment against nondelegation, the Appointments and Appropriations Clauses, and conflicts of interest and transparency laws. And we show that the administrative law of assignment should be sensitive to the different modalities of governing by assignment.
Finally, prospectively, based on in-depth interviews with former and current government officials, we offer recommendations to capture the substantial benefits of governing by assignment while fostering good governance and constitutional values under the IPA.
Although first-best solutions would address core personnel hurdles, governing by assignment provides a compelling mechanism for today’s administrative state, particularly in frontier fields such as science, technology, and evidence-based policy. Governing by assignment is vastly superior to not governing at all.
Repository Citation
Isaac
Cui
,
Daniel
E.
Ho
,
Olivia
Martin
&
Anne
J.
O'Connell
Governing by Assignment,
173
U. Pa. L. Rev.
157
(2024).
Available at:
https://scholarship.law.upenn.edu/penn_law_review/vol173/iss1/3