The Solicitor General and Federal litigation: Principal-agent relationships and the separation of powers
The Solicitor General of the United States conducts litigation in the United States Supreme Court on behalf of the Federal Government. Congress created the office in 1870 but left it in the peculiar position of representing the interests of the entire Federal Government despite the often conflicting perspectives of the government's legislative and executive branches. In this dissertation, I analyze the Solicitor General's institutional role. My analysis employs data culled both from surveys of the amicus briefs which the Solicitor General has filed in the Supreme Court as well as from congressional resolutions and legislation designed to influence the substance of Federal Supreme Court representation.
Using principal-agent theory, I explore the data to reveal how the interests of the Congress and the President often diverge and how such divergence creates problems for a unitary representative. In addressing these issues, I discuss the constitutional limitations on executive and legislative branch power and consider how the constitutional rule-system prevails upon the linkages of control between the Solicitor General and the legislative and executive branches. In particular, I examine the differences in the power of congressional sanctions and presidential sanctions over the Solicitor General and how relative differences would alter the dynamics of the principal-agent relationship. Finally, I explore the institutional alternatives which might be implemented to meet the representational needs of both Congress and the President and how the data suggest they might fare under the current rule structure.
The dissertation's principal-agent approach to the Solicitor General's office is a distinct departure from the existing literature because it analyzes the Solicitor General's office in a precise theoretical way. Some of the consequences of developing a principal-agent analysis of the office are manifest: a better understanding of the institutional roots of the Solicitor General's behavior and the behavior of the Congress and the President in relation; a more systematic understanding of the possible institutional alternatives for Federal Government legal representation; and a more productive discourse on the Solicitor General's role in the American constitutional system.
0617: Public administration