Pooling powers

Columbia Law Review

Volumn 115, Issue 2, 2015, Pages 211-292

  Renan, Daphna ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 84922312939     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (218)

1. William G. Howell & David E. Lewis, Agencies by Presidential Design, 64 J. Pol. 1095-1096 (2002) (arguing Presidents design agencies to maximize presidential control).
2. Terry M. Moe & Scott A. Wilson, Presidents and the Politics of Structure, Law & Contemp. Probs., Spring 1994, at 1, 17-19 (arguing Presidents use institutional strategies to assert control over bureaucracy).
3. Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769-774 (2013) (arguing President has legal authority to subject all agencies, including independent agencies, to regulatory review).
4. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245-2251 (2001) (defending practice of presidential directives to agencies).
5. Peter L. Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 704-05 (2007) [hereinafter Strauss, Overseer or Decider?] (arguing Presidents lawfully exercise supervision, but not decisional authority over agencies).
6. Aaron J. Saiger, Obama’s “Czars” for Domestic Policy and the Law of the White House Staff, 79 Fordham L. Rev. 2577-2583 (2011) (arguing President Barack Obama’s “proliferation of high-profile czars is his particular instantiation of a policy, common to all modern Presidents, of seeking to magnify his control over agency action”).
7. In this sense, the federal executive resembles Clarence Stone’s conception of a “regime.” Stone rejected a model of urban governance oriented around “the difficulty of maintaining a comprehensive scheme of control.” Clarence N. Stone, Regime Politics: Governing Atlanta, 1946-1988, at 222 (1989).
8. Pooling is of a piece with broader institutional shifts, for example, toward networks of government actors in the transnational context. See, e.g., Anne-Marie Slaughter, A New World Order 1-3 (2005) (arguing networks of government officials, such as police investigators, financial regulators, and legislators are “key feature of world order in the twenty-first century”).
9. Pooling has domestic cognates in fields such federalism, see, e.g., Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 Yale L.J. 534-543 (2011) (arguing Congress designates states to implement federal statutes both as means to “give some effect to the states’ traditional authority over areas that Congress is now entering” and as “nationalizing mechanism utilized by Congress to facilitate its takeover of a new field”).
10. Daniel Richman, The Past, Present, and Future of Violent Crime Federalism, 34 Crime & Just.: Rev. Res. 377, 404-05 (2006) [hereinafter Richman, Past, Present, and Future] (discussing preferences of local law enforcers to cooperate with federal enforcers, allowing them to leverage “federal shadow”).
11. Clayton P. Gillette, The Conditions of Interlocal Cooperation, 21 J.L. & Pol. 365 (2005) (proposing changes to legal and institutional structure to facilitate cross-subsidies from one locality to another).
12. Jon D. Michaels, Privatization’s Pretensions, 77 U. Chi. L. Rev. 717-719 (2010) [hereinafter Michaels, Privatization’s Pretensions] (arguing privatization enables federal agencies to achieve policy goals that, but for outsourcing, would be “impossible or much more difficult to attain” as matter of law and politics).
13. Jerry L. Mashaw, Federal Administration and Administrative Law in the Gilded Age, 119 Yale L.J. 1362-1470 (2010) (“Forgetting that administrative law both constitutes and empowers administrative action at the same time that it structures and constrains administrative behavior, administrative law is often thought of as just that set of external constraints that limit agency discretion.”).
14. Administrative law scholarship shares this preoccupation with presidential studies. See, e.g., Richard H. Pildes, Law and the President, 125 Harv. L. Rev. 1381, 1392-93 (2012) [hereinafter Pildes, Law and the President] (reviewing Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2010)) (observing that “[f]or many decades, legal scholarship on presidential power was confined to assessing how much formal legal power the President should be understood to have, as a matter of [constitutional interpretation],” and celebrating emergent focus on “actual (rather than formal) scope ofpresidential power”).
15. Daniel A. Farber & Anne Joseph O’Connell, The Lost World of Administrative Law, 92 Tex. L. Rev. 1137-1140 (2014) (“[T]he actual workings of the administrative state have increasingly diverged from the assumptions animating the [Administrative Procedure Act] and classic judicial decisions that followed.”).
16. Jacob E. Gersen, Administrative Law Goes to Wall Street: The New Administrative Process, 65 Admin. L. Rev. 689-690 (2013) (observing “we are in the midst of something of an agency design renaissance—a time period of fundamental change with respect to the federal bureaucracy”—and arguing these changes “deriv[e] mainly, although not exclusively, from the emergence of new administrative forms of financial regulation”).
17. Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L. Rev. 15, 49-55 (2010) [hereinafter Barkow, Insulating Agencies] (discussing how “shared responsibilities [between agencies] can either foster or frustrate the goals of insulation”).
18. Keith Bradley, The Design of Agency Interactions, 111 Colum. L. Rev. 745, 783-85 (2011) (identifying “rule-based interface” as design tool through which executive “preserve[s] the division of authority” between agencies so “[e]ach agency… is discouraged from considering interest-dimensions outside of its part of the problem”).
19. J.R. DeShazo & Jody Freeman, Public Agencies as Lobbyists, 105 Colum. L. Rev. 2217-2221 (2005) (arguing Congress can control delegated power by using other agencies as “lobbyists”).
20. Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131, 1155-81 (2012) (identifying and assessing available agency-coordination instruments).
21. Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 Sup. Ct. Rev. 201-203 [hereinafter Gersen, Overlapping] (examining “use by Congress and subsequent treatment by courts of overlapping and underlapping jurisdictional statutes in administrative law”).
22. Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2324-27 (2006) (arguing bureaucratic overlap can serve as important internal check on President).
23. Jason Marisam, Duplicative Delegations, 63 Admin. L. Rev. 181-185 (2011) [hereinafter Marisam, Duplicative] (discussing causes, effects, and implications of “duplicative delegations” to multiple agencies).
24. Jason Marisam, Interagency Administration, 45 Ariz. St. L.J. 183, 185-86 (2013) (analyzing how and why agencies seek to shape each other’s regulatory decisions and implications for separation of powers).
25. Jason Marisam, The Interagency Market place, 96 Minn. L. Rev. 886-887 (2012) [hereinafter Marisam, Interagency Marketplace] (describing legal framework governing interagency outsourcing and proposing statutory reforms).
26. Anne Joseph O’Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, 94 Calif. L. Rev. 1655, 1673-1716 (2006) (analyzing tradeoffs of unification and redundancy in structure of intelligence agencies).
27. Eric Biber, The More the Merrier: Multiple Agencies and the Future of Administrative Law Scholarship, 125 Harv. L. Rev. F. 78, 78-83 (2012), http://cdn.harvardlawreview.org/wp-content/uploads/pdfs/forvol125_biber.pdf (examining new focus on agency interactions in administrative law scholarship).
28. Jason Marisam, The President’s Agency Selection Powers, 65 Admin. L. Rev. 821-825 (2013) [hereinafter Marisam, President’s Agency Selection Powers] (“[W]hen Congress creates overlapping authority among several agencies, it enables presidents to select which of these agencies will act in the overlapping space.”).
29. Matthew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. Econ. & Org. 243-254 (1987) [hereinafter McCubbins, Noll & Weingast, Administrative Procedures] (hypothesizing administrative procedures enacted in legislation “help[] elected politicians retain control over policymaking”).
30. Matthew D. McCubbins, Roger G. Noll & Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va. L. Rev. 431-432 (1989) (discussing legislator design of administrative structure).
31. Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic 5-6 (2010) (adopting same definition).
32. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. 132-133 (1999) (elaborating theory of unilateral executive action).
33. If we understand each agency as its own “system”—with its own legal rules, politics, and practical resources--then pooling is a “system ofsystems.” See Adrian Vermeule, The System of the Constitution 3 (2011) (defining “systems” as “aggregates, whose properties are determined by the interaction oftheir components”).
34. Financial Services and General Government Appropriations for 2011: Hearing Before the Subcomm. on Fin. Servs. & Gen. Gov’t ofthe H. Comm. on Appropriations, 111th Cong. 202 (2010) (statement of Neil Barofsky, Special Inspector General, Troubled Asset Relief Program) (describing purpose of newly created council as “augment[ing] audit and investigative resources” across participants).
35. Meanwhile, an extensive literature shows how joint federal, state, and local investigatory practices create opportunities for circumventing legal or political constraints. See, e.g., Barbara S. Jones et al., Panel Discussion: The Prosecutor’s Role in Light of Expanding Federal Criminal Jurisdiction, 26 Fordham Urb. L.J. 657, 661-64 (1999) (transcribing remarks by Philip Heyman on how local governments can use federal prosecution of locally investigated cases to circumvent procedures, statutes, and penalties mandated by state legislatures).
36. Wayne A. Logan, Dirty Silver Platters: The Enduring Challenge of Intergovernmental Investigative Illegality, 99 Iowa L. Rev. 293, 295-98, 316-22 (2013) (examining consequences of “failure of courts to regulate the evasion of legal norms” enabled by “modern intergovernmental ‘working arrangements’“).
37. Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1-5 n.27 (1993) (observing this requirement “is today so deeply ingrained in our constitutional tradition thatit is seldom articulated”).
38. Harry T. Edwards & Linda A. Elliott, Federal Courts: Standards of Review 97 (2007) (noting organic statutes generally “set[] forth the basic mission of an agency, its principal responsibilities, and its authority to act”).
39. Richard E. Neustadt, Presidential Power and the Modern Presidents 185-87 (1990) (emphasizing credibility in elaborating sources of presidential power).
40. Daniel Carpenter, Reputation and Power: Organizational Image and Pharmaceutical Regulation at the FDA 33 (2010) [hereinafter Carpenter, Reputation and Power] (“[O]rganizational reputations animate, empower, and constrain the manifold agencies of government.”).
41. David Zaring, Regulating by Repute, 110 Mich. L. Rev. 1003-1006 (2012) (reviewing Carpenter, Reputation and Power, supra) (“[T]he merits of reputation as a governance tool... are real but limited.”).
42. Craig Timberg & Ellen Nakashima, Agreements with Private Companies Protect U.S. Access to Cables’ Data for Surveillance, Wash. Post (July 6, 2013), http://www.washingtonpost.com/business/technology/agreements-with-private-companies-protect-us-access-to-cables-data-for-surveillance/2013/07/06/aa5d017a-df77-11e2-b2d4-ea6d8f477a01_story.html (on file with the Columbia Law Review).
43. Neil King Jr. & David S. Cloud, Global Phone Deals Face Scrutiny from a New Source: The FBI, Wall St. J. (Aug. 24, 2000, 12:01 AM), http://online.wsj.com/articles/SB967070342424493183 (on file with the Columbia Law Review).
44. Kent Bressie, More Unwritten Rules: Developments in U.S. National Security Regulation of Undersea Cable Systems 8-11 (Jan. 18, 2009), http://www.hwglaw.com/siteFiles/News/7DF1C8D035660E8FBEF0AAC7BA8DA103.pdf (on file with the Columbia Law Review) (describing Team Telecom’s increased focus on securing telecommunications infrastructure).
45. Rachel E. Barkow & Peter W. Huber, A Tale of Two Agencies: A Comparative Analysis of FCC and DOJ Review of Telecommunications Mergers, 2000 U. Chi. Legal F. 29, 42-48 (describing “amorphous” public intereststandard).
46. FCC, FCC Homeland Security Liaison Activities 6-7 (2012), available at http://transition.fcc.gov/pshs/docs/liaison.pdf (on file with the Columbia Law Review).
47. This approach was formalized in a decision in the late 1990s by the FCC to defer to the executive branch on law enforcement, national security, and foreign policy issues relevant to the FCC’s licensing authorities when the application involves foreign ownership. See Rules and Policies on Foreign Participation in the U.S. Telecommunications Market, 12 FCC Rcd. 23,891, 23, 919-20 (1997) (Report and Order and Order on Reconsideration).
48. Agreement at 4, 9, 18, Applications Filed by Global Crossing Ltd. & Level 3 Commc’ns, Inc. for Consent to Transfer Control, 26 FCC Rcd. 14,056 (2011) (IB Docket No. 11-78) [hereinafter Global Crossing Agreement], available at http://apps.fcc.gov/ecfs/document/view?id=7021711201 (on file with the Columbia Law Review) (laying out terms ofagreement between Level 3 Communications and DoJ, DHS, and DoD).
49. Spencer E. Ante & Ryan Knutson, U.S. Tightens Grip on Telecom, Wall St. J. (Aug. 27, 2013, 9:38 PM), http://online.wsj.com/articles/SB10001424127887324906304579037292831912078 (on file with the Columbia Law Review). An attorney involved in negotiating such agreements is quoted as saying, “Each agreement seems to become more restrictive as the government recognizes the benefits of access to networks and databases and as threats to national security increase.”.
50. Current and Projected National Security Threats to the United States: Hearing Before the S. Select Comm. on Intelligence, 113th Cong. 9 (2013) (statement of James R. Clapper, Director of National Intelligence) (“[W]hen it comes to the distinct threat areas, our statement this year leads with cyber.”).
51. Remarks on Securing the Nation’s Information and Communications Infrastructure, 1 Pub. Papers 731-732 (May 29, 2009) (“America’s economic prosperity in the 21st century will depend on cyber security.”).
52. Homeland Threats and Agency Responses: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 112th Cong. 12 (2012) (statement of Kevin L. Perkins, Associate Deputy Director, Federal Bureau of Investigation) (“Cyber threats... pose a significant risk to our Nation’s critical infrastructure.”).
53. William J. Lynn III, The Pentagon’s Cyberstrategy, One Year Later, Foreign Aff. (Sept. 28, 2011), http://www.foreignaffairs.com/articles/68305/william-j-lynn-iii/the-pentagons-cyberstrategy-one-year-later [hereinafter Lynn, Pentagon’s Cyberstrategy] (on file with the Columbia Law Review) (“The United States is now in the midst of a strategic shift in the cyberthreat. Until now, intrusions have largely been for the purpose of exploitation.... [C]yber technologies now exist that are capable of destroying critical networks, causing physical damage, or altering the performance of key systems.”).
54. Leon E. Panetta, U.S. Sec’y of Def., Remarks on Cybersecurity to the Business Executives for National Security (Oct. 11, 2012), available at http://www.defense.gov/transcripts/transcript.aspx?transcriptid=5136 (on file with the Columbia Law Review) (describing cyberattacks on U.S. financial institutions, destructive computer virus directed at oil and energy companies in Middle East, and federal government’s “intense daily struggle[s] against thousands of cyber actors who probe the Defense Department’s networks, millions of times a day”).
55. Pam Benson, Computer Virus Stuxnet a “Game Changer,” DHS Official Tells Senate, CNN (Nov. 18, 2010, 6:21 AM), http://www.cnn.com/2010/TECH/web/11/17/stuxnet.virus/index.html (on file with the Columbia Law Review).
56. William J. Lynn III, Defending a New Domain: The Pentagon’s Cyberstrategy, Foreign Aff. (Sept.-Oct. 2010), http://www.foreignaffairs.com/articles/66552/william-j-lynn-iii/defending-a-new-domain (on file with the Columbia Law Review) (describing capabilities developed by NSA).
57. Harrison Donnelly, Q & A: General Keith B. Alexander, Mil. Info. Tech. (Dec. 17, 2010), http://www.kmimediagroup.com/military-information-technology/articles/288-military-information-technology/mit-2010-volume-14-issue-10-november/3650-qaa-general-keith-b-alexander-sp-454 (on file with the Columbia Law Review) (describing NSA’s capabilities and how they relate to cybersecurity objectives).
58. Rajesh De, The NSA and Accountability in an Era of Big Data, 7 J. Nat’l Sec. L. & Pol’y 301, 302-03 (2014) (collecting and describing these authorities).
59. Timothy B. Lee, Here’s Why ‘Trust Us’ Isn’t Working for the NSA Any More, Wash. Post: Switch (July 30, 2013), http://www.washingtonpost.com/blogs/the-switch/wp/2013/07/30/heres-why-trust-us-isnt-working-for-the-nsa-any-more/ (on file with the Columbia Law Review) (reporting “NSA’s penchant for secrecy initially sheltered its activities from public scrutiny, but it now seems to be workingagainst the agency”).
60. Homeland Sec. Studies & Analysis Inst., An Analysis ofthe Primary Authorities Supporting and Governing the Efforts of the Department of Homeland Security to Secure the Cyberspace of the United States, at v, 7-8 (2011), available at http://www.homelandsecurity.org/docs/reports/MHF-and-EG-Analysis-of-authorities-supporting-efforts-of-DHS-to-secure-cyberspace-2011.pdf (on file with the Columbia Law Review) (concluding relevant authorities lack sufficient clarity).
61. Memorandum of Agreement Between the Department of Homeland Security and the Department of Defense Regarding Cybersecurity (Sept. 27, 2010) [hereinafter DHS-DoD Agreement], available at http://www.dhs.gov/xlibrary/assets/20101013-dod-dhs-cyber-moa.pdf (on file with the Columbia Law Review).
62. Securing America’s Future: The Cybersecurity Act of 2012: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 112th Cong. 16-17 (2012) (statement of Janet Napolitano, Secretary, U.S. Department of Homeland Security) (discussing interagency agreement).
63. Protecting Cyberspace: Assessing the White House Proposal: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 112th Cong. 17 (2011) (statement of Philip R. Reitinger, Deputy Under Secretary, National Protection and Programs Directorate, U.S. Department of Homeland Security).
64. Ctr. for Strategic & Int’l Studies Comm’n on Cybersecu-rity for the 44th Presidency, Cybersecurity Two Years Later 6 (Jan. 2011), available at http://csis.org/files/publication/110128_Lewis_CybersecurityTwoYearsLater-Web.pdf (on file with the Columbia Law Review).
65. Robert M. Gates, Duty: Memoirs of a Secretary at War 451 (2014). Robert Gates goes on to express the view that this “new authority” has been underutilized by the DHS.
66. Macon Phillips, Introducing the New Cybersecurity Coordinator, White House Blog (Dec. 22, 2009, 7:30 AM), http://www.whitehouse.gov/blog/2009/12/22/introducing-new-cybersecurity-coordinator (on file with the Columbia Law Review) (announcing new White House Cybersecurity Coordinator post).
67. Howard A. Schmidt, Partnership Developments in Cybersecurity, White House Blog (May 21, 2012, 2:17 PM), http://www.whitehouse.gov/blog/2012/05/21/partnership-developments-cybersecurity (on file with the Columbia Law Review) (describing “green light[ing]” of two cybersecurity initiatives).
68. See Press Release, U.S. Dep’t of Homeland Sec., Joint Statement by Secretary of Defense Robert Gates and Secretary of Homeland Security Janet Napolitano on Enhancing Coordination to Secure America’s Cyber Networks (Oct. 13, 2010), http://www.dhs.gov/news/2010/10/13/joint-statement-enhancing-coordination-secure-americascyber-networks (on file with the Columbia Law Review) (“Reflecting President Obama’s strong commitment to... combating threats to... cyber networks and infrastructure, the Department of Defense... and the Department of Homeland Security... have signed a memorandum of agreement that will align and enhance America’s capabilities to protect against threats to... critical civilian and militarycomputer systems and networks.”).
69. Jody Freeman, The Obama Administration’s National Auto Policy: Lessons from the “Car Deal,” 35 Harv. Envtl. L. Rev. 343-344 (2011) (providing close study of “car deal” and its implications for administrative and environmental law).
70. U.S. Gov’t Accountability Office, GAO-10-336, Vehicle Fuel Economy: NHTSA and EPA’s Partnership for Setting Fuel Economy and Greenhouse Gas Emissions Standards Improved Analysis and Should Be Maintained 7 (2010) [hereinafter GAO-10-336], available at http://www.gao.gov/assets/310/301194.pdf (on file with the Columbia Law Review) (describing background surrounding commencement of joint rulemaking process).
71. Robert Chesney, Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate, 5 J. Nat’l Security L. & Pol’y 539, 539 n.2 (2012) (“[T]he argot of national security lawyers uses ‘Title 50 authority’ and ‘Title 10 authority’ as shorthands for the notion that there are distinct spheres of intelligence and military operations…”).
72. Greg Miller & Julie Tate, CIAShifts Focus to Killing Targets, Wash. Post (Sept. 1, 2011), http://www.washingtonpost.com/world/national-security/cia-shifts-focus-to-killing-targets/2011/08/30/gIQA7MZGvJ_story.html (on file with the Columbia Law Review).
73. Privacy & Civil Liberties Oversight Bd., Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 86 (2014) [hereinafter PCLOB, Section 702 Report], available at www.pclob.gov/library/702-Report.pdf (on file with the Columbia Law Review).
74. David Barstow & Lowell Bergman, With Little Fanfare, a New Effort to Prosecute Employers that Flout Safety Laws, N.Y. Times (May 2, 2005), http://www.nytimes.com/2005/05/02/politics/02osha.html (on file with the Columbia Law Review). The primary criminal provision of the Occupational Safety and Health Act of 1970 provides a misdemeanor punishable by imprisonment for not more than six months or a fine of not more than $10,000, and it requires a willful violation of OSHA rules that causes the death of an employee. 29 U.S.C. § 666(e) (2012).
75. The New York Timesreport described an EPA official’s reaction to the training: “It has been a revelation of sorts, he says, to watch [OSHA officers] grasp the chance at last to seek significant criminal penalties against defiant employers.”.
76. Worker Endangerment, U.S. Dep’t of Justice, http://www.justice.gov/enrd/3391.htm (on file with the Columbia Law Review) (last updated Oct. 2010) (describing worker endangerment initiative).
77. Kate Andrias, The President’s Enforcement Power, 88 N.Y.U. L. Rev. 1031-1087 (2013) (noting initiative experienced “unexplained problems” under President George W. Bush, but was revamped and made part of Vice President’s Middle Class Task Force initiative under Obama).
78. Others have provided nuanced accounts of the blending of legal tools from different agencies in particular policy domains. For a discussion of those dynamics in the financial regulatory context, see, e.g., Brandon L. Garrett, Collaborative Organizational Prosecution [hereinafter Garrett, Collaborative Organizational Prosecution], in Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct 154, 154 (Anthony S. Barkow & Rachel E. Barkow eds., 2011) [hereinafter Prosecutors in the Boardroom] (observing “relationship between federal regulators and prosecutors has grown surprisingly close” in corporate cases, and describing emergent collaborative approach).
79. Brandon L. Garrett, Structural Reform Prosecution, 93 Va. L. Rev. 853-896 (2007) (describing compliance agreements between corporations and DoJ reached in conjunction with other agencies, including SEC, IRS, and CFTC).
80. Ingrid V. Eagly, Prosecuting Immigration, 104 Nw. U. L. Rev. 1281-1288 (2010) (describing “evolving dynamic relationship between immigration and criminal enforcement” across “major axes” of adjudication, prosecutorial screening, and role reversal of agencies and prosecutors).
81. David Alan Sklansky, Crime, Immigration, and Ad Hoc Instrumentalism, 15 New Crim. L. Rev. 157-163 (2012) (positing “ad hoc instrumentalism” is cause of “disappearing line between criminal justice and immigration enforcement”).
82. David S. Kris & J. Douglas Wilson, National Security Investigations & Prosecutions ch. 10 (2007).
83. Nat’l Comm’n on Terrorist Attacks upon the United States, The 9/11 Commission Report 78-80 (2004) [hereinafter 9/11 Commission Report], available at http://www.9-11commission.gov/report/911Report.pdf (on file with the Columbia Law Review).
84. David S. Kris, The Rise and Fall of the FISA Wall, 17 Stan. L. & Pol’y Rev. 487-488 (2006).
85. David E. Sanger & Thom Shanker, Obama to Keep Security Agency and Cyberwarfare Under a Single Commander, N.Y. Times (Dec. 13, 2013), http://www.nytimes.com/2013/12/14/us/politics/obama-to-keep-security-agency-and-cyberwarfare-under-a-single-commander.html (on file with the Columbia Law Review).
86. President’s Review Grp. on Intelligence & Commc’ns Techs., Liberty and Security in a Changing World 190-91 (2013), available at http://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf (on file with the Columbia Law Review) (recommendingdecoupling ofU.S. Cyber Command and NSA).
87. Daryl Levinson identifies a variety of entrenchment mechanisms that might illuminate why some pooling arrangements are more likely than others to persist. See Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657, 686-91 (2011) (“[O]nce political arrangements have been put in place, a further set of [entrenchment] mechanisms contributes to their increasing stability over time.”).
88. Terry M. Moe, The Politicized Presidency, in The New Direction in American Politics 235, 238-39 (John E. Chubb & Paul E. Peterson eds., 1985) [hereinafter, Moe, Politicized Presidency] (explaining personal ambition and “popular, political, and media expectations” lead Presidents to “pursue some broader notion of the public interest”).
89. Daryl J. Levinson & Richard H. Pildes, Separation ofParties, Not Powers, 119 Harv. L. Rev. 2312, 2338-42 (2006) (explaining divided party government increases the likelihood of interbranch “confrontation, indecision and deadlock”).
90. For an exploration of the causes of polarization in the legal scholarship, see generally Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 Calif. L. Rev. 273, 281-325 (2011) (discussing persons, history, and institutions as causes of hyperpolarization).
91. David Epstein & Sharyn O’Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making Under Separate Powers 11 (1999).
92. Those unilateral designs may ultimately inform any legislative structuring that follows. For example, an interagency Financial Stability Oversight Council (FSOC), established by the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 111, 124 Stat. 1376, 1392-94 (2010) (codified at 12 U.S.C. § 5321 (2012)), codified and expanded the authority of what was initially a presidentially designed pooling structure. The FSOC’s antecedent is a presidential working group on financial markets, created by Reagan in response to the stock market crash of 1987. See Exec. Order No. 12,631, 3 C.F.R. 559 (1988) (establishing composition, purposes, and functions of working group).
93. Henry B. Hogue, Cong. Research Serv., R42852, Presidential Reorganization Authority: History, Recent Initiatives, and Options for Congress 1-34 (2012), available at http://fas.org/sgp/crs/misc/R42852.pdf (on file with the Columbia Law Review) (recounting evolution and use of reorganization authority prior to Chadha).
94. Louis Fisher, The Legislative Veto: Invalidated, It Survives, Law & Contemp. Probs., Autumn 1993, at 273, 277-79 (“Frustrated by an uncooperative Congress, [Hoover] wanted to make changes in legal structures without having to go through the regular legislative process where his proposals might be ignored or amended beyond recognition.”).
95. Phillip J. Cooper, By Order of the President: The Use and Abuse of Executive Direct Action 30 (2002) (observing reorganization process “fell into disuse because it required reorganization plans to be supported with a joint resolution of approval”).
96. David E. Lewis, Presidents and the Politics of Agency Design 80 (2003) [hereinafter Lewis, Politics of Agency Design] (noting “lapse[]” of presidential reorganization authority after Chadha).
97. James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It 268 (1989) (emphasizing executive’s difficulty in obtaining legislation authorizing reorganization after legislative veto was rendered unconstitutional because “Congress is exceptionally sensitive to the implications of any reorganization for its own internal allocation of power”).
98. Technological change may itself interact with other dynamics—what William Scheuerman has collectively labeled “social acceleration.” See generally William E. Scheuerman, Liberal Democracy and the Social Acceleration of Time, at 15 (2004). As Scheuerman defines the term, social acceleration is a long-term yet relatively recent historical process consisting of three central elements: technological acceleration (e.g., the heightening of the rate of technological innovation), the acceleration of social change (referring to accelerated patterns of basic change in the workplace or family, e.g.), and the acceleration of everyday life (e.g., via new means of high-speed communication or transportation).
99. Jody Freeman & David B. Spence, Old Statutes, New Problems, 163 U. Pa. L. Rev. 1, 2-5, 10-11 (2014) (arguing “fit problems are more severe now than at any time in the modern regulatory era,” in light of “unprecedented congressional paralysis” and fast-moving technological and scientific developments in fields of energy and environmental protection and beyond).
100. Jeffrey E. Shuren, The Modern Regulatory Administrative State: A Response to Changing Circumstances, 38 Harv. J. on Legis. 291, 327-29 (2001) (arguing agencies need broad judicial deference to adapt older statutes to changing social circumstances).
101. Joseph S. Nye Jr., The Paradox of American Power 78 (2002) (describing globalization as “growth of worldwide networks of interdependence”).
102. Mariano-Florentino Cuéllar, Governing Security: The Hidden Origins of American Security Agencies 21 (2013) [hereinafter Cuéllar, Governing Security]. Tino Cuéllar has offered an account of how political actors define security to serve strategic ends.
103. Mariano-Florentino Cuéllar, “Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency, 1939-1953, 76 U. Chi. L. Rev. 587, 598-600 (2009) (describing Roosevelt’s use of security concerns to frame and achieve broader domestic reorganization and regulatory agenda).
104. Jon D. Michaels, The (Willingly) Fettered Executive: Presidential Spinoffs in National Security Domains and Beyond, 97 Va. L. Rev. 801, 828-33 (2011) [hereinafter Michaels, Fettered Executive] (describing accountability deficit in national security context).
105. Amy Zegart has argued that “national security agencies live in a much more tightly knit, stable bureaucratic world than their domestic counterparts.” Amy B. Zegart, Flawed by Design: The Evolution of the CIA, JCS, and NSC 37 (1999). Whether or not agency interdependence is a distinctive feature of the national security space, it certainly appears that joint structuring, for the reasons discussed in the text, is firmly rooted in it.
106. Margaret Levi, A Model, a Method, and a Map: Rational Choice in Comparative and Historical Analysis, in Comparative Politics: Rationality, Culture, and Structure 23-28 (Mark Irving Lichbach & Alan S. Zuckerman eds., 1997) (“Path dependence has to mean … that once a country or region has started down a track, the costs of reversal are veryhigh. There will be other choice points, but the entrenchments ofcertain institutional arrangements obstruct an easy reversal of the initial choice.”).
107. David J. Barron, From Takeover to Merger: Reforming Administrative Law in an Age of Agency Politicization, 76 Geo. Wash. L. Rev. 1095-1122 (2008) (“[T]he Department of Defense is itself not an agency with which administrative law scholars usually concern themselves. The bread-and-butter of the field are the health, safety, and welfare agencies.”).
108. Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095, 1113-28 (2009).
109. William J. Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 Harv. L. Rev. 2548-2549 (2004).
110. David E. Lewis, The Politics of Presidential Appointments 2 (2008) (“People commonly refer to the act ofincreasing the number and penetration ofappointees as ‘politicization.’ Politicized agencies, then, are those that have the largest percentage and deepest penetration of appointees.”).
111. Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. Chi. L. Rev. 821, 824, 879-82 (2003) (offering “qualified defense” of OIRA based on empirical assessment of rulemaking review focused on period between 1993 to 2000).
112. Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 Harv. L. Rev. 1075-1082 (1986) (arguing benefits of White House review include coordinating agency activities to avoid conflicts, establishing presidential priorities, and adjusting rulemaking schedules).
113. Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 3-4 (1995) (“Some degree of presidential review of the regulatory process is probably necessary to promote political accountability and to centralize and coordinate the regulatory process.”).
114. Rena Steinzor, The Case for Abolishing Centralized White House Regulatory Review, 1 Mich. J. Envtl. & Admin. L. 209, 214-15 (2012) (“Centralized review shoves policymaking behind closed doors, wastes increasingly limited government resources, confuses agency priorities, demoralizes civil servants, and … costs the nation dearly in lost lives, avoidable illness and injury, and destruction of irreplaceable natural resources.”).
115. Scholars have also elaborated how OIRA review might be improved to better serve goals independent of presidential control. See, e.g., Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 Colum. L. Rev. 1260, 1328-29 (2006) (arguing “centralized agency with command over the regulatorystate should make distributional analysis a core feature ofits agenda”).
116. Michael A. Livermore & Richard L. Revesz, Regulatory Review, Capture, and Agency Inaction, 101 Geo. L.J. 1337, 1382-83 (2013) (proposing mechanism for OIRA review of agency inaction to better address anticapture concerns).
117. Richard P. Nathan, The Administrative Presidency 7-11 (1983).
118. Cass R. Sunstein, Commentary, The Office of Information and Regulatory Affairs: Myths and Realities, 126 Harv. L. Rev. 1838-1840 (2013) (emphasizing OIRA’s role as “information aggregator,” rather than simply vehicle for executive agency rulemaking).
119. Anne E. Kornblut, New Unit to Question Key Terror Suspects: Move Shifts Interrogation Oversight from the CIA to the White House, Wash. Post (Aug. 24, 2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/08/23/AR2009082302598.html (on file with the Columbia Law Review) (discussing Obama’s signoff on creating HIG as “elite team of interrogators to question key terrorism suspects”).
120. Tara McKelvey, Boston Bombings: How to Interrogate a Suspected Terrorist, BBC News (Apr. 23, 2013), http://www.bbc.com/news/magazine-22227704 (on file with the Columbia Law Review) (discussing HIG member’s involvement in interviewing domestic suspects).
121. Kimberley Dozier, WH Adviser: Interrogation Team Questions Shahzad, NBC News (May 31, 2011, 6:02 AM), http://www.nbcnews.com/id/37225759 (on file with the Columbia Law Review).
122. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573-588 (1984) (describing how President resolves jurisdictional disputes through Office of Management and Budget).
123. Lisa Schultz Bressman & Robert B. Thompson, The Future of Agency Independence, 63 Vand. L. Rev. 599-610 (2010) (“[Independent agencies] are generally run by multi-member commissions or boards, whose members serve fixed, staggered terms, rather than a cabinet secretary or single administrator who serves at the pleasure of the President[.]”).
124. Whether independent agencies may be brought within the President’s regulatory review process is an open legal question. See Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163-1215 (2013) [hereinafter Vermeule, Conventions] (noting “it is unclear whether [independent agencies] are legally obliged to” submit their anticipated legislation for clearance).
125. Max Weber, The Essentials of Bureaucratic Organization: An Ideal Type Construction, in Reader in Bureaucracy 19, 19-21 (Robert K. Merton et al. eds., 1952) (describing bureaucracy as divided into spheres of competence and governed by principle of hierarchy).
126. Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. Rev. 1-6 (1997) (proposing regulatory model focused on “adaptive problem solving” between agencies and regulated parties).
127. Anne Joseph O’Connell, Bureaucracy at the Boundary, 162 U. Pa. L. Rev. 841, 843-52 (2014) (offering explanatory theory of agencies that exist at boundary and exploring legal issues raised by these designs).
128. Anthony S. Barkow & Rachel E. Barkow, Introduction, in Prosecutors in the Boardroom, supra note 97, at 1, 1-5 (identifying trend of prosecutors leveraging adjudicative authority to engage in corporate regulation together with enforcement agencies).
129. Michael Asimow, When the Curtain Falls: Separation of Functions in the Federal Administrative Agencies, 81 Colum. L. Rev. 759, 759-61 (1981) (noting principle bars from participation in administrative-agency decisions “staff members who have prepared or presented evidence or argument on behalf of or against a party to an administrative proceeding”).
130. Philip Bobbitt, Terror and Consent 296-97 (2009).
131. Gregory F. Treverton, Reshaping National Intelligence for an Age of Information 180 (2001) (noting traditional intelligence community distinction “between foreign and domestic”).
132. Gregory F. Treverton, The Century Foundation Homeland Security Project, Intelligence, Law Enforcement, and Homeland Security 1 (Aug. 21, 2002), available at http://webzoom.freewebs.com/swnmia/treverton-intelligence.pdf (on file with the Columbia Law Review) (noting President Truman, in creating CIA, “worried openly about a ‘Gestapo-like organization’“).
133. William N. Eskridge Jr. & John Ferejohn, A Republic of Statutes: The New American Constitution 165-170 (2010) (describing process of “statutoryentrenchment”).
134. Murray Edelman, The Symbolic Uses of Politics 1-4 (1985) (suggesting “most cherished forms of popular participation in government are largely symbolic” and “only in a minor degree is it participation in policy formation”).
135. Mike McConnell, Op-Ed., Mike McConnell on How to Win the Cyber-War We’re Losing, Wash. Post (Feb. 28, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/02/25/AR2010022502493.html (on file with the Columbia Law Review) (“The NSA is the only agency in the United States with the legal authority, oversight and budget dedicated to breaking the codes and understanding the capabilities and intentions of potential enemies.”).
136. It has also been proposed in several cybersecurity bills that the Obama Administration declined to support. See Office of Mgmt. & Budget, Exec. Office of the President, Statement of Administration Policy: H.R. 3523—Cyber Intelligence Sharing and Protection Act 1 (Apr. 25, 2012), available at http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr3523r_20120425.pdf (on file with the Columbia Law Review) (advancing position that treatment of domestic cybersecurity is within civilian sphere rather than intelligence sphere).
137. Office of the Inspector Gen., U.S. Dep’t of Justice, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks 2 (2003) [hereinafter DOJ IG Report], available at http://www.justice.gov/oig/special/0306/full.pdf (on file with the Columbia Law Review) (finding INS detained 762 aliens as result of “PENTTBOM” (Pentagon, Twin Towers Bombing) investigation).
138. David Cole, The New McCarthyism: Repeating History in the War on Terrorism, 38 Harv. C.R.-C.L. L. Rev. 1, 24-25 (2003) (“[E]ven a conservative estimate would number the detentions at approximately two thousand as of November 2002, fourteen months after the campaign began.”). At the time, the INS and the FBI were both components of the DoJ. But the INS had previously been housed in the Department of Labor and is today ICE, a component of the DHS.
139. Walter P. Loughlin, Parallel Civil and Criminal Proceedings, Prac. Litigator, Mar. 2011, at 19, 19 (“The trend toward government coordination of civil and criminal investigations and proceedings to enhance its enforcement efforts is accelerating.”).
140. Peter Lattman & Kara Scannell, Slapping Down a Dynamic Duo: SEC and the Justice Department Fight Financial Crime Together, but Is It an Unfair Double-Team?, Wall St. J. (Jan. 25, 2006), http://online.wsj.com/news/articles/SB113815854524255591 (on file with the Columbia Law Review) (noting federal judges had “taken [the SEC and DoJ] to task for using what the judges deemed an unfair one-two-punch approach in criminal cases”).
141. Daniel Richman, Federal Sentencing in 2007: The Supreme Court Holds—The Center Doesn’t, 117 Yale L.J. 1374-1383 (2008) (describing Corporate Fraud Task Force as “branding device” with little practical effect during Bush Administration).
142. Daniel Richman, Political Control of Federal Prosecutions: Looking Back and Looking Forward, 58 Duke L.J. 2087-2119 (2009) [hereinafter Richman, Federal Prosecutions] (arguing, notwithstanding limited practical effect of initial Bush task force, task-force model “offers a helpful framework for coordinating across enforcement agencies and between Washington and the districts”).
143. David Gourevitch & Richard M. Gelb, Government Manipulation of Regulatory and Criminal Investigations: A New Judicial Willingness to Scrutinize, A.B.A. Sec. Litig. J., Summer 2006, at 1, 1 (cautioning DoJ prosecutors use regulatory investigations by SEC as “stalking horses to gather evidence for the criminal [case]”).
144. The Committee on Foreign Investment in the United States (CFIUS), U.S. Dep’t of the Treasury, http://www.treasury.gov/resource-center/international/Pages/Committee-on-Foreign-Investment-in-US.aspx (on file with the Columbia Law Review) (last updated Dec. 20, 2012, 1:37 PM) (describing CFIUS’s role).
145. Composition of CFIUS, U.S. Dep’t of the Treasury, http://www.treasury.gov/resource-center/international/foreign-investment/Pages/cfius-members.aspx (on file with the Columbia Law Review) (last updated Dec. 1, 2010, 8:08 AM) (listing agencies whose heads make up membership of CFIUS).
146. David Zaring, CFIUS as a Congressional Notification Service, 83 S. Cal. L. Rev. 81, 84-85 (2009) (discussing mitigation agreements entered into under CFIUS).
147. Barry R. Weingast, The Congressional-Bureaucratic System: A Principal Agent Perspective (with Applications to the SEC), 44 Pub. Choice 147, 153-58 (1984) (developing principal-agent framework).
148. John D. Huber & Charles R. Shipan, Deliberate Discretion? The Institutional Foundations of Bureaucratic Autonomy 26 (2002) (“The principal-agent framework… has played an extremely prominent and powerful role in [the] institutional approach to relations between politicians and bureaucrats.”).
149. Murray J. Horn & Kenneth A. Shepsle, Commentary on “Administrative Arrangements and the Political Control of Agencies”: Administrative Process and Organizational Form as Legislative Responses to Agency Costs, 75 Va. L. Rev. 499, 501-02 (1989) (bureaucratic drift occurs when “policy implemented by bureaucratic agents [differs] from that enacted by the coalition”).
150. Jonathan R. Macey, Organizational Design and Political Control of Administrative Agencies, 8 J.L. Econ. & Org. 93-94 (1992) (defining bureaucratic drift as “elected officials’ concern that administrative agencies will act in ways contrary to their interests[,] [which] prompts them to develop complex rules to control the future conduct of agencies”).
151. McNollgast, The Political Economy of Law, in 2 Handbook of Law and Economics 1651-1710 (A. Mitchell Polinsky & Stephen Shavel eds., 2007).
152. Steven J. Balla, Administrative Procedures and Political Control of the Bureaucracy, 92 Am. Pol. Sci. Rev. 663-671 (1998) (showing empirical assessment of notice-and-comment process in context of Medicare physician-payment reform did not support deck-stacking thesis).
153. Glen O. Robinson, Commentary on “Administrative Arrangements and the Political Control of Agencies”: Political Uses of Structure and Process, 75 Va. L. Rev. 483-484 (1989) (“[McNollgast’s] model is too general in its description of processes and structure to permit useful generalizations about how they can be used to ‘stack the deck’ in favor of specific political interests.”).
154. David B. Spence, Managing Delegation Ex Ante: Using Law to Steer Administrative Agencies, 28 J. Legal Stud. 413-415 (1999) (analyzing two sets of decisions made by Federal Energy Regulatory Commission and finding only “limited, qualified support” for hypothesis that political actors can influence agency decisionmaking through administrative process).
155. Michael Asimow, On Pressing McNollgast to the Limits: The Problem of Regulatory Costs, Law & Contemp. Probs., Winter 1994, at 127-131 (“[W]hen groups that oppose agency action trip legislative fire alarms, the fire will be doused (or fed or ignored) by the existing power balance in the legislature rather than by the coalition that existed at the time the legislation was enacted.”).
156. McNollgast’s thesis continues to play an influential role in administrative law theory, however. See, e.g., Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749, 1752-58 (2007) (seeking to reconcile McNollgast approach to administrative procedures with more traditional legal view of procedural formality serving due process and rule-of-law values).
157. Jacob E. Gersen & Anne Joseph O’Connell, Deadlines in Administrative Law, 156 U. Pa. L. Rev. 923, 931-32 (2008) (describing “menu” of procedural restrictions available to Congress to control agencies).
158. William J. Rinner, Comment, Optimizing Dual Agency Review of Telecommunications Mergers, 118 Yale L.J. 1571-1572 (2009) (describing “HSR Act’s goal of expediting complex merger review”).
159. Informal Timeline for Consideration of Applications for Transfers or Assignments of Licenses or Authorizations Relating to Complex Mergers, FCC, http://www.fcc.gov/encyclopedia/informal-timeline-consideration-applications-transfers-or-assignments-licenses-or-autho (on file with the Columbia Law Review) (last visited Nov. 13, 2014).
160. Laura Kaplan, Note, One Merger, Two Agencies: Dual Review in the Breakdown ofthe AT&T/T-Mobile Merger and a Proposal for Reform, 53 B.C. L. Rev. 1571, 1577-80, 1586-88 (2012) (describing different burdens of proof that apply under FCC’s and DoJ’s legal authorities).
161. Press Release, U.S. Dep’t of Justice, Justice Department Allows Comcast-NBCU Joint Venture to Proceed with Conditions (Jan. 18, 2011), http://www.justice.gov/opa/pr/justice-department-allows-comcast-nbcu-joint-venture-proceed-conditions (on file with the Columbia Law Review) (highlighting DoJ-FCC collaboration).
162. Jonathan Baker, Continuing a Conversation About the FCC’s Merger Review Process, FCC: Reboot (Mar. 17, 2011), http://reboot.fcc.gov/blog?entryId=1340463 (on file with the Columbia Law Review) (emphasizing “close coordination” between DoJ and FCC).
163. Kenneth A. Shepsle, Bureaucratic Drift, Coalitional Drift, and Time Consistency: A Comment on Macey, 8 J.L. Econ. & Org. 111, 113-14 (1992) (same). Macey argues that the initial organizational design of the agency provides a mechanism for Congress to ameliorate both bureaucratic and coali-tional drift.
164. Jerry L. Mashaw & David L. Harfst, Regulation and Legal Culture: The Case of Motor Vehicle Safety, 4 Yale J. on Reg. 257, 315-16 (1987) (arguing regulation by NHTSA has failed to live up to original goals, warning of “paralysis” absent “agency risk-taking”).
165. Ellen L. Theroff, Note, Preemption of Airbag Litigation: Just a Lot of Hot Air?, 76 Va. L. Rev. 577, 620-22 (1990) (highlighting problem of automobile-industry capture of NHTSA).
166. Daniel C. Richman, Federal Criminal Law, Congressional Delegation, and Enforcement Discretion, 46 UCLA L. Rev. 757, 789-810 (1999).
167. See 3 U.S. Gen. Accounting Office, GAO-08-987SP, Principles of Federal Appropriations Law 15-15 (3d ed. 2008) [hereinafter GAO Red Book], available at http://www.gao.gov/special.pubs/d08978sp.pdf (on file with the Columbia Law Review) (discussing origins of Russell Amendment).
168. Richard P. Nathan, Jobs and Civil Rights: The Role of the Federal Government in Promoting Equal Opportunity in Employment and Training 87-89 (1969) [hereinafter Nathan, Jobs and Civil Rights] (describing opposition to Roosevelt’s orders).
169. Establishment of the President’s Council for International Youth Exchange, 6 Op. O.L.C. 541-551 (1982) (interpreting Russell Amendment to apply to fundraising body created by executive).
170. Advisory Committees—Application of the Russell Amendment, 3 Op. O.L.C. 263, 263 (1979) (concurring in view of Office of Management and Budget that Russell Amendment does not apply to advisory committees).
171. M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. Chi. L. Rev. 1383-1405 (2004) (explaining absence of agency’s obligation to explain to courts reasons for its choice among policymaking forms is “out of step with the remainder of the law of judicial review of agency action”).
172. Press Release, EPA, Obama Administration Takes Unprecedented Steps to Reduce Environmental Impacts of Mountaintop Coal Mining, Announces Interagency Action Plan to Implement Reforms (June 11, 2009), http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/e7d3e5608bba2651852575d200590f23 (on file with the Columbia Law Review).
173. Lisa P. Jackson, Adm’r of EPA, to Terrence Salt, Acting Assistant Sec’y (Civil Works), Dep’t of the Army 1-3 (June 11, 2009), reprinted in 3 Joint Appendix at 671-73, Nat’l Mining Ass’n, 758 F.3d 243 (No. 12-5310) [hereinafter Joint Appendix] (indicating EPA is reviewing “approximately 110 pending permit applications subject to these enhanced procedures”).
174. Elizabeth Magill, Standing for the Public: A Lost History, 95 Va. L. Rev. 1131, 1185-98 (2009) (describing development of public interest litigation and judicial response, “expand[ing] what a party had to show to demonstrate an injury in fact,” thereby “stamp[ing] out the standing for the public principle”).
175. M. Elizabeth Magill, Courts and Regulatory Capture, in Preventing Regulatory Capture 397-413 (Daniel Carpenter & David A. Moss eds., 2014) (“It is exceedingly difficult to attack an agency’s general administration of a program, including its pattern of enforcement decisions.”).
176. Eric Biber, Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction, 26 Va. Envtl. L.J. 461, 469-84 (2008) (examin-ingjudicial review of agency inaction).
177. Charlie Savage, Door May Open for Challenge to Secret Wiretaps, N.Y. Times (Oct. 16, 2013), http://www.nytimes.com/2013/10/17/us/politics/us-legal-shift-may-open-door-for-challenge-to-secret-wiretaps.html [hereinafter Savage, Wiretaps Challenge] (on file with the Columbia Law Review) (discussing use of such evidence in criminal prosecutions).
178. Charlie Savage, Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence, N.Y. Times (Oct. 26, 2013), http://www.nytimes.com/2013/10/27/us/federal-prosecutors-in-a-policy-shift-cite-warrant less-wiretaps-as-evidence.html (on file with the Columbia Law Review) (reporting shift away from previous policy of nondisclosure).
179. John Shiftman & David Ingram, Exclusive: IRS Manual Detailed DEA’s Use of Hidden Intel Evidence, Reuters (Aug. 7, 2013, 6:23 PM), http://www.reuters.com/article/2013/08/07/us-dea-irs-idUSBRE9761AZ20130807 (on file with the Columbia Law Review) (discussing operation of this program and debate surrounding it).
180. Bruce Ackerman, The New Separation of Powers, 113 Harv. L. Rev. 633-640 (2000) (arguing “three legitimating ideals” motivate separation-of-powers doctrine: democracy, professionalism, and protecting fundamental rights).
181. Jacob E. Gersen, Unbundled Powers, 96 Va. L. Rev. 301, 324-52 (2010) [hereinafter Gersen, Unbundled Powers] (identifying collection of constitutional design principles).
182. Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 413-17 (2012) [hereinafter Bradley & Morrison, Historical Gloss] (synthesizing legal and political science scholarship elaborating this set of claims and discussing their implications for use of historical gloss in resolving separation-of-powers questions).
183. Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 Geo. L.J. 53, 54-56 (2011) (classifying counter-command-and-control trends through two models—minimalism and experimentalism—and assessing relative advantages of each).
184. Richard B. Stewart, Administrative Law in the Twenty-First Century, 78 N.Y.U. L. Rev. 437, 446-53 (2003) (describing emergence of “new regulatory methods and instruments,” including government-stakeholder networks and economic incentive systems, “to ease the problems created by overreliance on centralized command-and-control methods”).
185. Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267, 314-23 (1998) (developing theory of democratic experimentalism).
186. Jack Goldsmith, Power and Constraint 92-108 (2012) (detailing role of intraexecutive oversight of CIA from 1970s to current war on terror).
187. Terry M. Moe, The Politics of Bureaucratic Structure, in Can the Government Govern? 267, 323-29 (John E. Chubb & Paul E. Peterson eds., 1989) (developing designed to fail thesis).
188. Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. 23, 42-45 (1995) (arguing unitary executive better serves Madisonian goal of accountability).
189. Daniel B. Rodriguez, Administrative Law Agonistes, 108 Colum. L. Rev. Sidebar 15, 15-16 (2008), http://www.columbialawreview.org/wp-content/uploads/2008/04/15_McNollgast.pdf (“[A] serious normative dispute remains about whether and to what extent [the] enacting coalition should be preferred over the current coalition in Congress.”).
190. Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. 915, 917-23 (2005) (arguing government actors not motivated to aggrandize their institutions).
191. M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. Pa. L. Rev. 603, 603-06 (2001) (arguing efforts to separate powers and maintain balance among branches have failed).
192. Gillian E. Metzger, The Interdependent Relationship Between Internal and External Separation of Powers, 59 Emory L.J. 423, 423-26 (2009) (discussing relationship between internal and external checks on executive branch).
193. Cynthia Caporizzo, Office of Nat’l Drug Control Policy, Prisoner Reentry Programs: Ensuring a Safe and Successful Return to the Community (Nov. 30, 2011, 1:09 PM), http://www.whitehouse.gov/blog/2011/11/30/prisoner-reentry-programs-ensuring-safe-and-successful-return-community (on file with the Columbia Law Review) (describing interagency reentry council).
194. Trevor W. Morrison, Constitutional Alarmism, 124 Harv. L. Rev. 1688, 1707-20, 1731 (2011) (reviewing Bruce Ackerman, The Decline and Fall of the American Republic (2010)) (countering claims that Office of Legal Counsel is rubber stamp to executive).
195. For scholarship disputing the idea that law constrains the President, see Bruce Ackerman, The Decline and Fall of the American Republic 182-85 (2010) (asserting President can undermine “legal establishment headed by the Supreme Court”).
196. Curtis A. Bradley & Trevor W. Morrison, Presidential Power, Historical Practice, and Legal Constraint, 113 Colum. L. Rev. 1097, 1102-30 (2013) (synthesizing literature on both sides of this question, and suggesting mechanisms by which “politics and law operate in either reinforcing or countervailing ways”).
197. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush 2-3 (2008) (noting some action of every President has sparked discussion of scope of Article II authority).
198. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1-5 (1994) (noting debate over President’s Article II authority is subject of intense controversyin nation’s history).
199. John F. Manning, The Supreme Court, 2013 Term—Foreword: The Means of Constitutional Power, 128 Harv. L. Rev. 1-5 (2014) (positing Constitution favors deferring to Congress in implementing federal powers).
200. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153-1166 (1992) (arguing President has “direct power to supplant any discretionary executive action taken by a subordinate with which he disagrees, notwithstanding any statute that attempts to vest discretionary executive power only in the subordinate”).
201. Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541-599 (1994) (“The Executive Power Clause is a grant of exclusive power to the President that allows him to control the execution of all federal laws.”).
202. Peter L. Strauss, Presidential Rulemaking, 72 Chi.-Kent L. Rev. 965, 984-86 (1997) (arguing Congressional authority delegated to agencies is not given to President).
203. Kevin M. Stack, The President’s Statutory Powers to Administer the Laws, 106 Colum. L. Rev. 263-267 (2006) (arguing Presidents only have authority to direct administrative action where such authority is expressly conferred by statute).
204. Cary Coglianese, Presidential Control of Administrative Agencies: A Debate over Law or Politics?, 12 U. Pa. J. Const. L. 637, 645-46 (2010) (“Unfortunately, any theoretical difference between influence and control, or between oversight and decision will not be observed in practice.”).
205. Jack Goldsmith & John F. Manning, The President’s Completion Power, 115 Yale L.J. 2280, 2298-2302 (2006) (discussing binding deference to agency interpretation of statutes—Chevron doctrine—as grounded in Article II power). But it is controversial and highly contestable.
206. Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law, 119 Yale L.J. 458-463 (2009) (arguing immigration law has “consequence of delegating tremendous authority to the President to set immigration screening policy by making a huge fraction of noncitizens deportable at the option of the Executive” and labeling this source of presidential power “de facto delegation” from Congress).
207. Daniel Richman, Institutional Competence and Organizational Prosecutions, 93 Va. L. Rev. Brief 115, 117-18 (2007), http://www.virginialawreview.org/volumes/content/institutional-competence-and-organizational-prosecutions (on file with the Columbia Law Review) (noting ability of some state attorney general offices “to shift seamlessly between criminal and civil tracks”).
208. William N. Eskridge Jr., Vetogates, Chevron, Preemption, 83 Notre Dame L. Rev. 1441, 1442-43 (2008) (defining “vetogates” as requirement that law pass House, Senate, and presentment to President, as well as internal congressional hurdles before enactment, and describing effects on public law).
209. Jennifer Nou, Agency Self-Insulation Under Presidential Review, 126 Harv. L. Rev. 1755, 1756-61 (2013) (arguing agencies act strategically to make executive branch review of agency rulemaking more costly and insulate agency decisions from potential reversal).
210. Office of Legal Counsel, About the Office, U.S. Dep’t of Justice, http://www.justice.gov/olc (on file with the Columbia Law Review) (last visited Jan. 21, 2015).
211. David J. Barron & Todd D. Rakoff, In Defense of Big Waiver, 113 Colum. L. Rev. 265-266 (2013) (noting modern administrative law emerged in response to broad delegation of power to specify law where Congress left it open ended).
212. E. Donald Elliott, Chevron Matters: How the Chevron Doctrine Redefined the Roles of Congress, Courts and Agencies in Environmental Law, 16 Vill. Envtl. L.J. 1, 11-12 (2005) (arguing Chevron’s effect inside EPA was to open up “policy space” for agency action).
213. Matthew C. Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 Va. L. Rev. 597-602 (2009) (“Chevron supposes that interpretation is an exercise in identifying the statute s range of reasonable interpretations, [which the authors depict as a] zone of ambiguity.”).
214. Peter L. Strauss, “Deference” Is Too Confusing—Let’s Call Them “Chevron Space” and “Skidmore Weight,” 112 Colum. L. Rev. 1143, 1143 (2012) (developing concept of Chevron space).
215. Elizabeth Magill & Adrian Vermeule, Allocating Power Within Agencies, 120 Yale L.J. 1032 (2011) (describing how administrative law doctrines including Chevron allocate power inside agencies).
216. Shirin Sinnar, Protecting Rights from Within? Inspectors General and National Security Oversight, 65 Stan. L. Rev. 1027-1030 (2013).
217. Margo Schlanger, Offices of Goodness: Influence Without Authority in Federal Agencies, 36 Cardozo L. Rev. 53, 54-60 (2014) (describing and evaluating “Offices of Goodness” as subsidiary offices created within agencies by Congress to instill and safeguard desired values, such as civil rights).
218. Daphna Renan, Administering Surveillance: The Fourth Amendment as Administrative Procedure 1-25 (Oct. 21, 2014) (unpublished manuscript) (on file with the Columbia Law Review).