Welcome back, dear reader, to the General Counsel's blog. If you're joining us for the first time, I'd invite you to start by reading our first post. It's a meta, long-form disclaimer about blog posts generally—a post on the Law of Blog Posts. I'd also invite you to read or watch my recent remarks to the Media Institute on Regulatory Humility: the FCC's Essential Virtue, in which I explain how the FCC under Chairman Pai is adapting old regulations to account for today's dynamic, rapidly-evolving media landscape.
Speaking of new media—if you're like me, you might be suffering from withdrawal as a number of long-time, epic franchises have recently drawn to a close. Perhaps you wish you could snap your fingers and return to the start of the Avengers series or warg your way back to the first episode of Game of Thrones. If this describes you, you've come to the right place. I plan to use this space next for a series of posts on a legendary character whose story the poets, playwrights, and producers have mostly neglected to tell—the agency general counsel. This story has all the makings of a blockbuster: It features political intrigue, warring fiefdoms, and magical powers whose sources and limits are sometimes shrouded in mystery (well, at least that's how I think of independent litigating authority).
Like all good epics, this one needs an Origin Story. And that's the focus of this first post in our series.
The Age of Meet, Learned Attorneys
Our story starts in 1789, when a young nation's First Congress created the "Great Departments" of State, War, and Treasury. Things were off to a promising start, with one small problem: Congress made no provision for these departments to have their own "in-house" lawyers. Instead, in the Judiciary Act of 1789, Congress provided that there "shall . . . be appointed a meet person, learned in the law, to act as attorney-general for the United States," who was responsible both for Supreme Court litigation and to "give his advice and opinions upon questions of law" when requested by the President or the heads of departments.
While this foundational Act suggested an ideal of unified representation of the Executive Branch, it also planted the seeds of future disunion. The Act required appointment of district attorneys (also "meet" and "learned in the law") to prosecute crimes and litigate civil actions on behalf of the United States, with no mechanism for oversight or coordination with the Attorney General. As a result, the quality and consistency of federal representation in the early years of the Republic suffered.
Responding to this problem, Andrew Jackson proposed the creation of a law department to bring the district attorneys under the Attorney General's control. But Daniel Webster opposed any proposal that would add such prosaic managerial duties to the Attorney General's plate, making him "a half accountant, a half lawyer, a half clerk, in half everything and not much of anything." Instead, Webster proposed creating a Solicitor of the Treasurer to oversee the district attorneys. In 1830, Webster prevailed, thus cementing divided representation in the Executive Branch.
Reading the Whirlwind
Once Treasury had its own counsel, other departments demanded equal treatment. Congress added law posts to the Internal Revenue and War Departments, Navy, and Post Office. There things stood until the Civil War occasioned an explosion of litigation involving the United States. The district attorneys lacked the manpower to handle all the suits, and as a result, departments frequently hired their own private outside counsel. This increased both the federal government's costs and the risk of inconsistency of executive representation. "[S]o great is the confusion and conflict," said Rep. Thomas A. Jenckes of Rhode Island, "that we might as well attempt to read the whirlwind."
One unavoidable consequence of divided representation was that the government was occasionally on both sides of a dispute. In The Gray Jacket case, decided in 1866, the Secretary of Treasury and Attorney General took differing positions on whether the United States properly claimed title to a vessel seized during the Civil War.1 The Attorney General argued that the vessel was a spoil of war, seized from an Alabaman attempting to run a Union blockade; the Secretary of Treasury had been convinced by the vessel's owner that he was loyal to the United States, and was merely attempting to flee to non-rebel territory.2 Uninterested in refereeing the government's internecine disputes, the Supreme Court held that when "the United States is a party" and is represented by the Attorney General, "no counsel can be heard in opposition on behalf of any other of the departments of the government." (As we will see in a future post, this resolution has not always stood the test of time.)
To settle these issues, Rep. Jenckes proposed the creation of a Department of Justice, which finally came into being on July 1, 1870. In theory, this move consolidated the advocacy and advice functions within a single executive branch. The various solicitors and district attorneys were moved to the new Department and the retention of outside counsel was prohibited. But Congress, seemingly ambivalent about the new Department, did not give it office space or repeal the statutes creating department-specific solicitors. As a result, the Attorney General could not appoint government lawyers or house them in the same location as his staff. Inertia set in and the planned centralization of executive branch attorneys never occurred.
The nation's legal system remained in this largely decentralized state until the strains of another war—World War I—spurred a new effort to unify the government's legal representation. World War I led to a proliferation of governmental agencies and bureaus, each with their own lawyers and litigating authority. To tame this wild growth, President Woodrow Wilson invoked his emergency war powers in an executive order that brought all law officers of the government, as well as any litigation in which the United States was a party, under the supervision and control of the Department of Justice.
This solution was short-lived. World War I ended only a few months after President Wilson signed the order. The end of the war meant the end of the President's emergency war powers. When the authority underlying the order lapsed, the pendulum again swung toward decentralization. With the executive order gone, departmental lawyers threw off the yoke of the Department of Justice and again asserted their right to control litigation affecting their agencies and bureaus. At the same time, the number of departmental lawyers continued to grow: by the late 1920s, there were more than 900 legal positions in the federal government, most of them outside the Justice Department.
Felix's Happy Hot Dogs
Then came the New Deal. Roosevelt's ambitious federal response to the Depression resulted in the creation of scores of new federal agencies (the so-called "Alphabet Agencies"). FDR's former advisor Ray Moley quipped that this motley assortment of new agencies resembled "the accumulation of stuffed snakes, baseball pictures, school flags, old tennis shoes, carpenter's tools, geometry books and chemistry sets in a boy's bedroom." Each agency in this mélange required legal representation.
The executive departments deepened their benches of legal talent as well. In the 1930s, Harold Ickes, Secretary of the Interior and prominent member of President Roosevelt's cabinet, became a vocal critic of Justice handling cases involving his department. Ickes believed that he supervised "an exceedingly able legal staff that I would not trade man for man with members of the Attorney General's staff." He blamed Justice for a loss in an oil case and bristled at the idea of the Attorney General supervising his department's issuance of regulations.
Ickes's department was not the only one that could boast an "able legal staff." Legions of young lawyers came to the Roosevelt administration from the nation's top law schools. Many were recruited by Felix Frankfurter, then a Harvard Law professor and trusted advisor to President Roosevelt. When Frankfurter was nominated to the Supreme Court in 1939, Time magazine counted 125 "happy hot dogs" who owed their jobs in Washington, D.C. to their mentor, Frankfurter. These lawyers—some of the best and brightest young legal minds of the time—flocked to Washington to staff Roosevelt's New Deal agencies.
While Roosevelt made no effort to consolidate all these attorneys into the Justice Department, he did issue an Executive Order that purported to centralize litigation authority within the Department (except when otherwise provided by statute). Congress later codified this Executive Order. While these actions consolidated litigation authority within the Department of Justice, both the Executive Order and statute were silent with respect to the counseling function of departmental lawyers. This silence—combined with the fact that administrative law was increasing in scope and complexity, and therefore increasingly required specialization—solidified the decentralized consultative and advisory functions of internal agency counsel.
The FCC, Louis, and Me
It was in this environment that the FCC—and its Office of General Counsel—was born. The FCC traces its origins to 1927, when Congress created the Federal Radio Commission with the Radio Act of 1927. The FRC shared some similarities to the modern FCC—it was headed by five commissioners, no more than three of which could be from the same political party. Its task was to allocate radio licenses at the public's convenience, interest, or necessity—a task originally expected to take only a year.
The first General Counsel of the FRC was Louis Goldsborough Caldwell. Not among Frankfurter's happy hot dogs, Caldwell was nonetheless distinguished in his own right. He was a native of Chicago and graduated from Northwestern University Law School. Caldwell taught as a professor at Northwestern for a single semester, before leaving the professorship to serve with great distinction in the first World War. Following the war, Caldwell returned to Chicago to take a position at the firm that later became Kirkland & Ellis, where he worked for radio station and media clients. In June 1928, Caldwell left Kirkland to serve as General Counsel of the FRC.
The rest is history. In 1934, the Communications Act transferred the FRC's jurisdiction over radio and the Interstate Commerce Commission's jurisdiction over telephone and telegraphy to the newly created Federal Communications Commission. Since then, a number of "meet and learned" attorneys have served as general counsel of the FCC. Among my favorites is Telford Taylor, appointed as General Counsel in 1940, who is best remembered for his later role as Counsel for the Prosecution at the Nuremberg Trials.
* * *
With that, we conclude our Origin Story. Fast forward to today, and you will find nearly 40,000 attorneys nested throughout the federal government,3 with only 11,000 of those in the Department of Justice.4 These attorneys together constitute the "laterarchy" or "jurocracy," in the words of academic Donald L. Horowitz—the complex, interconnected web of attorneys that represent the federal government today.
The primary job of these attorneys is to provide legal advice to agency heads and their staff. While these lawyers often represent agencies in administrative adjudications, most do not litigate (although they typically work closely with the Department of Justice, which generally represents executive agencies in Court.) This separation of functions—the product of a 150-year power struggle—is today so well settled that it is largely taken for granted by government lawyers.
The FCC differs from some other agencies in one key respect: it has its own litigation authority. Lawyers in the FCC's Office of General Counsel, for example, defend the FCC's orders when the legality of those orders are challenged under the Hobbs Act. My office has an excellent relationship with the talented attorneys in the Department of Justice—in particular, the Office of Solicitor General and the Antitrust Division—and we work together cooperatively and collegially on a host of different matters. But in the past, the Commission's independence has meant that the FCC and DOJ have occasionally found themselves on different sides of the same case.
In our next post, we'll explore ways in which conflicts among executive-branch lawyers have played out in practice, focusing on some historical examples involving the FCC. The hero of our story, the government lawyer, will be tested. But I promise that this narrative arc will add complexity to the character and make our hero stronger by the end.
For additional reading, and much of the source material behind this post, see Nancy V. Baker, Conflicting Loyalties: Law & Politics in the Attorney General's Office, 1789-1990; Thomas W. Hazlett, The Political Spectrum; Donald L. Horowitz, The Jurocracy; Cornell W. Clayton, Government Lawyers.
1The Gray Jacket I, 72 U.S. (5 Wall.) 342, 365-66 (1866); The Gray Jacket II, 72 U.S. (5 Wall.) 370 (1866).
2The Gray Jacket I, 72 U.S. at 351.
3 Bureau of Labor Statistics, Occupational Outlook Handbook: Lawyers, https://www.bls.gov/ooh/legal/lawyers.htm#tab-3 (last accessed May 17, 2019).
4See U.S. Dep't of Justice, FY 2018 Agency Financial Report.