The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
It is not every day that a cabinet secretary publicly attacks the decision of a federal agency, but this is 2020.
In today's WSJ, Secretary of Defense Mark Esper criticizes the Federal Communications Commission for approving Ligado's applicaiton to repurpose portions of radio spectrum for planned 5G services. According to the Secretary Esper, this plan will create interference for GPS services and compromise national security. Although the FCC imposed conditions, Secretary Esper maintains they are insufficient to prevent the compromise of GPS reliability and usability for both military and civilian uses.
I have no idea whether Secretary Esper's claims have substantive merit. What interests me about Secretary Esper's op-ed is the interagency conflict. Here we have a cabinet secretary—and presumably one of the more influential cabinet secretaries—publicly criticizing the actions of another federal agency on the op-ed page of a major newspaper.
Under normal circumstances, when two executive branch agencies disagree, the dispute is handled within the executive branch, sometimes with direct White House intervention. So, for instance, if the Environmental Protection Agency adopts rules that limit a fuel source the Department of Energy is trying to promote, the dispute will get resolved through various informal interagency processes. And, in the end, because both agencies are ultimately subject to presidential control, the White House typically has the ability to resolve the dispute in favor of one agency or the other.
In this case, however, we have an independent agency. The FCC is not subject to direct Presidential control and if the FCC votes unanimously to take a given course of action (as it did here) there is little the White House can do. So whereas the Defense Secretary could seek White House intervention to obtain relief from an EPA regulation, it is effectively powerless against the FCC. So, rather than call the Oval Office, Secretary Esper took his complaint to the WSJ, perhaps in the hope of encouraging intervention by Congress.
While public criticism of one agency by the head of another is rare, interagency litigation is even less common—but it does happen. See, for example, this litigation between the Tennessee Valley Authority and the EPA concerning TVA's alleged Clean Air Act violations.