Political Will and the Unitary Executive: What Makes an Independent Agency Independent?

The government does not speak a unitary voice in court. The exercise of independent litigating authority by governmental entities connotes the absence of White House authority and, with it, disunity in interpretation. Sometimes Congress encourages such disunity through statutory grants of independent litigating authority. Sometimes the executive accommodates the desires of governmental entities to speak their own voice in particular cases.

At other times the executive acknowledges an implicit claim of right for an independent agency or governmental corporation to control its litigation.