Unorthodox lawmaking, unorthodox rulemaking

Columbia Law Review

Volumn 115, Issue 7, 2015, Pages 1789-1866

  Gluck, Abbe R ^a   O’Connell, Anne Joseph ^b   Po, Rosa ^a  

^a YALE UNIVERSITY   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

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EID: 84949189130     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (444)

1. Ronald A. Cass & Peter L. Strauss, The Presidential Signing Statements Controversy, 16 Wm. & Mary Bill Rts. J. 11, 14-21 (2007) (identifying President’s dual roles in interpreting and implementing legislation)
2. Peter L. Strauss, Foreword: Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 712-13 (2007) [hereinafter Strauss, Overseer or Decider] (identifying dual roles for President and framing question of interpretive deference to President)
3. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 575-79 (1984) (emphasizing functional overlap among branches)
4. Peter L. Strauss, When the Judge Is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of Legislative History, 66 Chi.-Kent L. Rev. 321, 329-31 (1990) [hereinafter Strauss, When the Judge] (identifying agencies as statutory interpreters).
5. Peter L. Strauss, “Deference” Is Too Confusing—Let’s Call Them “Chevron Space” and “Skidmore Weight,” 112 Colum. L. Rev. 1143, 1144-48 (2012) (mapping each doctrine and Supreme Court’s role)
6. Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court’s Limited Resources for Judicial Review of Agency Action, 87 Colum. L. Rev. 1093, 1094-96 (1987) [hereinafter Strauss, 150 Cases per Year] (framing Chevron as realist doctrinal response from Supreme Court needing to ensure tolerable legal uniformity).
7. These processes were entrenched by, among other things, the Legislation Reorganization Act of 1970, Pub. L. No. 91-510, 84 Stat. 1140, which targeted congressional committees, and the Supreme Court’s 1973 decision in United States v. Florida East Coast Railway Co., 410 U.S. 224 (1973), which held that agencies need only use formal, trial-like proceedings in limited circumstances and so turned agencies to notice-and-comment rulemaking as their primary mode of action.
8. Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 Yale L.J. 534, 576-94 (2011) [hereinafter Gluck, Intrastatutory Federalism] (describing complex implementation structure of ACA)
9. Timothy Stoltzfus Jost, The Independent Medicare Advisory Board, 11 Yale J. Health Pol’y L. & Ethics 21, 24-27, 31 (2011) (calling Independent Payment Advisory Board (IPAB) attempt by Congress to “lash itself to the mast to keep the siren song of special interest lobbyists from distracting it from its task of controlling Medicare cost growth”).
10. Abbe R. Gluck, Imperfect Statutes, Imperfect Courts: Reading Congress’s Plan in the Era of Unorthodox Lawmaking, 129 Harv. L. Rev. (forthcoming Nov. 2015) (manuscript at 26–27) [hereinafter Gluck, Imperfect Statutes] (on file with the Columbia Law Review) (explaining Congress did not pass ACA through “textbook legislative process”).
11. See Executive Actions on Immigration, U.S. Citizenship & Immigration Servs., http://www.uscis.gov/immigrationaction [https://perma.cc/88L9-PRXW] (last visited Aug.15, 2015) (explaining immigration action)
12. Lauren Gambino, Immigration Crisis Forces Obama to “Act Alone” with Executive Orders, Guardian (Aug. 4, 2014), http://www.theguardian.com/world/2014/aug/04/us-immigration-obama-executive-orderoptions-deportation [http://perma.cc/EMM3-8NPQ] (reporting “frustrated [President] Obama[’s]” announcement he would initiate executive immigration reform due to congressional deadlock).
13. Texas v. United States, No. B-14-254, 2015 WL 648579, at *62 (S.D. Tex. Feb. 16, 2015) (granting preliminary injunction), stay denied, No. B-14-254, 2015 WL 1540022 (S.D. Tex. Apr. 7, 2015), aff’d, 787 F.3d 733 (5th Cir. 2015).
14. Josh Hicks, Why Congress Can’t Stop a Federal Hiring Blitz Tied to Obama’s Immigration Actions, Wash. Post (Dec. 8, 2014), http://www.washingtonpost.com/blogs/federal-eye/wp/2014/12/08/why-congress-cant-stop-a-federal-hiring-blitz-tied-toobamas-immigration-actions [http://perma.cc/57ER-545G] (reporting Republican “effortto force compromise”).
15. Bill Chappell, “Cromnibus” Spending Bill Passes, Just Hours Before Deadline, NPR (Dec. 11, 2014, 2:29 PM), http://www.npr.org/sections/thetwo-way/2014/12/11/370132039/house-poised-to-vote-on-controversial-cromnibus-spending-bill (on file with the Columbia Law Review)
16. Ashley Parker & Jonathan Weisman, Congressional Leaders Reach Deal on Spending, N.Y. Times (Dec. 9, 2014), http://www.nytimes.com/2014/12/10/us/politics/congressional-leaders-reach-deal-on-spending.html (on file with the Columbia Law Review).
17. Susan Milligan, The GOP’s “Cromnibus” Compromise, U.S. News (Dec. 8, 2014, 12:01 AM), http://www.usnews.com/news/articles/2014/12/08/house-gop-pushescromnibus-to-combat-obama-on-immigration [http://perma.cc/A8D2-5H37] (explaining aim of budget compromise is to counteract President Obama’s executive action on immigration).
18. Robert Pear, In Final Spending Bill, Salty Food and Belching Cows Are Winners, N.Y. Times (Dec. 14, 2014), http://www.nytimes.com/2014/12/15/us/politics/in-final-spendingbill-salty-food-and-belching-cows-are-winners.html (on file with the Columbia Law Review).
19. Robert Lenzner, A Christmas Present for the Banks from the Omnibus Bill, Forbes (Dec. 13, 2014, 12:35 PM), http://www.forbes.com/sites/robertlenzner/2014/12/13/wallstreet-reverses-ban-on-trading-derivatives-backed-by-uncle-sam [http://perma.cc/8WLV-NW23].
20. Schoolhouse Rock!, I’m Just a Bill, YouTube (Sept. 1, 2008), https://www.youtube.com/watch?v=tyeJ55o3El0 [https://perma.cc/TF4K-KR6F]
21. Saturday Night Live, Capitol Hill Cold Open, Youtube (Nov. 23, 2014), https://www.youtube.com/watch?v=JUDSeb2zHQ0 [https://perma.cc/J487-HDW8] (explaining process of Executive Orders).
22. 135 S. Ct. 2480 (2015).
23. Barbara Sinclair coined this term in her important book with the same title.
24. Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress (1st ed. 1997) [hereinafter Sinclair, Unorthodox Lawmaking (1st ed.)].
25. Gluck, Imperfect Statutes, supra note 5 (manuscript at 28) (illustrating how King implied ACA’s process was unusual).
26. See infra Part III (evaluating normative implications of unorthodox process).
27. Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in 5 U.S.C. §§ 500-706 (2012)).
28. See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (explaining principle of judicial deference to agencies where statute delegating regulatory authority is ambiguous).
29. Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 381 (1986) (calling Chevron deference to reasonable agency interpretations “greater abdication of judicial responsibility . . . than seems wise”)
30. George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557, 1560 (1996) (describing passage of APA as “pitched political battle for the life of the New Deal . . . le[aving] many . . . far from completely satisfied”)
31. Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, in Administrative Law Stories 399 (Peter L. Strauss ed., 2006) (documenting no one thought Chevron had major significance when first decided).
32. See infra section I.E (describing executive role in legislative and regulatory processes).
33. See U.S. Const. art. I, § 5, cl. 2 (“Each House may determine the Rules of its Proceedings . . . .”)
34. Josh Chafetz & Michael J. Gerhardt, Debate, Is the Filibuster Constitutional?, 158 U. Pa. L. Rev. PENNumbra 245, 258-59, 263 (2010), http://www.pennlawreview.com/online/158-U-Pa-L-Rev-PENNumbra-245.pdf [http://perma.cc/YP4X-G5Z3] (debating constitutionality of filibuster in context of congressional control of own rules).
35. David H. Rosenbloom, 1946: Framing a Lasting Congressional Response to the Administrative State, 50 Admin. L. Rev. 173, 178-82 (1998) (outlining passage of APA and internal reorganization of Congress as congressional attempt to manage expanding administrative state during New Deal era).
36. Nicholas Bagley & Helen Levy, Essential Health Benefits and the Affordable Care Act: Law and Process, 39 J. Health Pol. Pol’y & L. 441, 442 (2014) (discussing phenomenon in context of ACA)
37. Roberta Romano, Further Assessment of the Iron Law of Financial Regulation: A Postscript to Regulating in the Dark 34-36 (European Corp. Governance Inst., Working Paper No. 273, 2014), http://ssrn.com/abstract=2517853 [http://perma.cc/WH8S-U4PN] [hereinafter Romano, Iron Law] (criticizing Consumer Financial Protection Bureau (CFPB)’s use of guidance instead of notice-and-comment rulemaking).
38. See supra note 4 and accompanying text (explaining creation, purpose, and process of IPAB).
39. Sinclair, Unorthodox Lawmaking (1st ed.), supra note 15, at 12.
40. Barbara Sinclair, Unorthodox Lawmaking 261-65 & tbls.10.1, 10.2, 10.3 & 10.4 (4th ed. 2012) [hereinafter Sinclair, Unorthodox Lawmaking (4th ed.)] (presenting empirical findings showing increase in unorthodox process).
41. Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation and the Canons: Part II, 66 Stan. L. Rev. 725, 758-63 (2014) [hereinafter Bressman & Gluck, Part II]
42. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I, 65 Stan. L. Rev. 901, 979-82 (2013) [hereinafter Gluck & Bressman, Part I].
43. Daniel A. Farber & Anne Joseph O’Connell, The Lost World of Administrative Law, 92 Tex. L. Rev. 1137, 1154-73 (2014)
44. Rosa Po, Unorthodox Rulemaking: The New Regulatory Process in Administrative Agencies 33-45 (June 2015) (unpublished manuscript) (on file with the Columbia Law Review) [hereinafter Po, New Regulatory Process].
45. To the extent that the practices of the legislation and rulemaking side have been linked, it has been only through a recently emerging story of partisan gridlock.
46. Michael S. Greve & Ashley C. Parrish, Administrative Law Without Congress, 22 Geo. Mason L. Rev. 501, 535 (2015) (discussing “deep partisan division” in which Congress must legislate and resulting agency action)
47. Gillian E. Metzger, Agencies, Polarization, and the States, 115 Colum. L. Rev. 1739, 1757-58 (2015) [hereinafter Metzger, Agencies, Polarization, and the States] (examining agency action in polarized political environment)
48. David E. Pozen, Self-Help and the Separation of Powers, 124 Yale L.J. 2, 41 (2014) (discussing increased polarization of Senate and “widespread fear” of “breakdown of our system of representative government” and implications for presidential self-help)
49. Josh Blackman, Gridlock and Executive Power 23 (July 15, 2014) (unpublished manuscript), http://ssrn.com/abstract=2466707 [http://perma.cc/G38P-8Z3V] (last updated Aug. 12, 2014) (noting link between perceived legislative breakdown and increased use of unorthodox executive maneuvers)
50. Po, New Regulatory Process, supra note 29 (examining passage and implementation of ACA through gridlock lens).
51. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 97-99 (1991) (applying same meaning of “attorney’s fees” across U.S. Code).
52. Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 Sup. Ct. Rev. 201, 221 [hereinafter Gersen, Overlapping and Underlapping] (highlighting uncertainty under Chevron “about whether deference is warranted for agency views of a statute that multiple agencies . . . administer”).
53. See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 237 (1947) (establishing presumption against preemption).
54. See, e.g., Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984) (linking deference to agencies with accountability).
55. Farber & O’Connell, supra note 29, at 1170, 1185-88 (noting discrepancy and suggesting possible doctrinal changes to incorporate modern practices).
56. See generally Unpublished Judicial Opinions: Hearing Before the Subcomm. on Courts, the Internet & Intellectual Prop. of the H. Comm. on the Judiciary, 107th Cong. 94-113 (2002), http://commdocs.house.gov/committees/judiciary/hju80454.000/hju80454_0.htm [http://perma.cc/SQN9-5RKC] (discussing increasing use of unpublished opinions in federal court system).
57. Panel Discussion: Specialized Courts: Lessons from the Federal Circuit, 8 Chi.-Kent J. Intell. Prop. 317 (2009), http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1076&context=ckjip [http://perma.cc/66Z2-T75R] (presenting transcript of discussion on merits of increasing number and types of specialty courts).
58. For instance, individual “holds” on bills by members might qualify as unorthodox legislative practices when it comes to inaction. On the rulemaking side, withdrawals of rulemakings or not responding to rulemaking petitions might count as unorthodox mechanisms.
59. Strauss, When the Judge, supra note 1, at 329 (“Legislative history has a centrality and importance for agency lawyers that might not readily be conceived by persons . . . accustomed to considering its relevance only to actual or prospective judicial resolution of discrete disputes.”).
60. Strauss, Overseer or Decider, supra note 1 (analyzing multiplicity of presidential roles with regard to administrative process).
61. Strauss, When the Judge, supra note 1, at 321.
62. Strauss, 150 Cases per Year, supra note 2, at 1117-22.
63. Peter L. Strauss, The Courts and the Congress: Should Judges Disdain Political History?, 98 Colum. L. Rev. 242, 266 (1998) (defending importance of considering political history of legislation).
64. Sinclair herself does not attempt to make distinctions within the world of legislative unorthodoxy that she identifies.
65. Sinclair, Unorthodox Lawmaking (4th ed.), supra note 27, at 132 tbl.5.1 (combining all unorthodox practices and procedures in tabulation of special unorthodox practices for major legislation).
66. Susan Rose-Ackerman, Judicial Review and the Power of the Purse, 12 Int’l Rev. L. & Econ. 191, 193-94 (1992) (discussing purposes for appropriating funds through omnibus bills).
67. U.S. Gov’t Accountability Off., GAO-13-21, Federal Rulemaking: Agencies Could Take Additional Steps to Respond to Public Comments 8 (2012) [hereinafter GAO, Federal Rulemaking].
68. Jessica Tollestrup, Cong. Research Serv., RL32473, Omnibus Appropriations Acts: Overview of Recent Practices 4 (2014), https://www.hsdl.org/?view&did=750138 [https://perma.cc/RBH7-M4MP] (noting, of 345 appropriations bills enacted into law between FY 1986 and FY 2014, 154 were done through omnibus legislation).
69. Sinclair, Unorthodox Lawmaking (4th ed.), supra note 27, at 113.
70. Sean Farhang & Miranda Yaver, Divided Government and the Fragmentation of American Law, 59 Am. J. Pol. Sci. (forthcoming 2015) (manuscript at 7-8) (on file with the Columbia Law Review) (measuring overlap in administrative function over sixty years).
71. Joint rulemaking is still small in absolute terms.
72. Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131, 1166-67 & n.167 (2012) (noting joint rulemaking made up only approximately 4% of all rulemaking in 2010, climbing from 98 such rules in 2008 to 139 in 2010).
73. For further documentation, see Bressman & Gluck, Part II, supra note 28, at 762-63 & nn.139-143.
74. Our own research is consistent with these accounts; the numbers for the 113th Congress are virtually identical. Memorandum from Rosa Po, student, Yale Law Sch., to Abbe R. Gluck, Professor of Law, Yale Law Sch. & Anne Joseph O’Connell, George Johnson Professor of Law, Univ. of Cal. Berkeley Sch. of Law 1 (Sept. 12, 2015) [hereinafter Po, Memorandum] (on file with the Columbia Law Review). Unorthodox practices appear more common in the first year of a congressional session.
75. Sinclair, Unorthodox Lawmaking (4th ed.), supra note 27, at 54 (“[I]n the Congresses of the 1960s through the 1980s . . . the committee was bypassed . . . on 7 percent of major measures; for the 103rd through 110th Congresses, the average increased to 26 percent; in the 111th Congress it was 45 percent.”).
76. GAO, Federal Rulemaking, supra note 46, at 8
77. Connor Raso, Agency Avoidance of Rulemaking Procedures, 67 Admin. L. Rev. 65, 69 (2015) (examining rulemaking between 1995 and 2012 and finding “[a]gencies exempted approximately 50% of rules from the APA notice-and-comment process.”).
78. Kenneth S. Lowande, After the Orders: Presidential Memoranda and Unilateral Action, 44 Presidential Stud. Q. 724, 725-730 fig.1 (2014) (“[O]ver the last 50 years, published memoranda have surged . . . .”)
79. Nina A. Mendelson, Disclosing “Political” Oversight of Agency Decision Making, 108 Mich. L. Rev. 1127-1148 & n.109 (2010) [hereinafter Mendelson, Political Oversight] (noting extensive use of “presidential statements directing agencies to take action of one sort or another” from 1993 to 2008 based on search of Westlaw “Presidential Daily” database).
80. Curtis W. Copeland, Cong. Research Serv., RL32397, Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs 1 (2011), https://www.fas.org/sgp/crs/misc/RL32397.pdf [https://perma.cc/7J72-3KWV] (discussing OIRA review of agency rules). The number of regulations reviewed has not increased since the 1970s; indeed, previous administrations examined more than 2,000 a year.
81. See also U.S. Gov’t Accountability Off., GAO-03-929, Rulemaking: OMB’s Role in Reviews of Agencies’ Draft Rules and the Transparency of Those Reviews 5 (2003), http://www.gao.gov/new.items/d03929.pdf [http://perma.cc/FQL7-SAG9] (finding “significant[]” changes to 25 of 85 rules examined). Presidential signing statements also dramatically increased until recently, and may now be in some decline.
82. Daniel B. Rodriguez et al., Executive Opportunism, Presidential Signing Statements, and the Separation of Powers 10 (Cornell Law Sch., Paper No. 15-20, 2015), http://ssrn.com/abstract=2564824 [http://perma.cc/2LE3-R64G]. Currently, signing statements are almost at pre-Reagan levels.
83. Todd Garvey, Cong. Research Serv., RL33667, Presidential Signing Statements: Constitutional and Institutional Implications 2-13 (2012), https://www.fas.org/sgp/crs/natsec/RL33667.pdf [https://perma.cc/X9UF-54PN] (finding decline of signing statements without conditioning on pieces of legislation under President Obama).
84. Kevin R. Kosar, Cong. Research Serv., RL30533, The Quasi Government: Hybrid Organizations with Both Government and Private Sector Legal Characteristics 5-6 (2011), https://www.fas.org/sgp/crs/misc/RL30533.pdf [https://perma.cc/2P3B-XZ6D] (discussing privatization of government services and quasi-official agencies)
85. Farhang & Yaver, supra note 49 (manuscript at 7-8)
86. Gluck, Intrastatutory Federalism, supra note 4 (detailing state implementation of federal law)
87. Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y.U. L. Rev. 698, 704-07 (2011) (discussing public versus private enforcement regimes)
88. Gillian E. Metzger, Privatization as Delegation, 103 Colum. L. Rev. 1367, 1377-94 (2003) [hereinafter Metzger, Privatization as Delegation] (giving contemporary examples of privatization)
89. Jon D. Michaels, Privatization’s Progeny, 101 Geo. L.J. 1023, 1040-44 (2013) (recounting “generational expansion” of contracting with private entities to provide government services)
90. Anne Joseph O’Connell, Bureaucracy at the Boundary, 162 U. Pa. L. Rev. 841, 855-61 (2014) [hereinafter O’Connell, Bureaucracy at the Boundary] (noting variety of government and quasi-government entities with both public- and private-actor features).
91. John J. DiIulio, Bring Back the Bureaucrats 16 (2014) (adjusted for inflation).
92. Stephen Minicucci & John D. Donahue, A Simple Estimation Method for Aggregate Government Outsourcing, 23 J. Pol’y Analysis & Mgmt. 489, 504-05 (2004) (finding significant increases in spending on outsourcing of government services in 1980s and 1990s).
93. DiIulio, supra note 58, at 21.
94. Peter L. Strauss, Private Standards Organizations and Public Law, 22 Wm. & Mary Bill Rts. J. 497 (2013) [hereinafter Strauss, Private Standards].
95. Nathalie Rioux, Nat’l Inst. of Standards and Tech., U.S. Dep’t of Commerce, NISTIR 7930, Sixteenth Annual Report on Federal Agency Use of Voluntary Consensus Standards and Conformity Assessment 1 (2013), http://nvlpubs.nist.gov/nistpubs/ir/2013/NIST.IR.7930.pdf [https://perma.cc/L9GM-3BP8] (“In FY 2012, federal agencies reported 423 new uses of [voluntary consensus standards], which is nearly double the number (261) reported in FY 2011.”).
96. U.S. Gov’t Accountability Off., GAO-08-341T, Military Base Realignments and Closures: Estimated Costs Have Increased and Estimated Savings Have Decreased 4 n.8 (2007), http://www.gao.gov/new.items/d08341t.pdf [http://perma.cc/WMS6-YRY2].
97. Connor N. Raso, Note, Strategic or Sincere? Analyzing Agency Use of Guidance Documents, 119 Yale L.J. 782, 785-86 (2010) [hereinafter Raso, Strategic or Sincere]
98. Greve & Parrish, supra note 30, at 532-33 (noting agencies’ shift away from notice-and-comment procedures and giving example of Food and Drug Administration, which has “largely forsworn regulation through notice-and-comment rulemaking” in favor of “never-finalized ‘draft’ guidance documents”)
99. Supra note 24 and accompanying text (giving examples of reliance on guidance by CFPB and agencies implementing ACA).
100. Richard G. Niemi & Joshua J. Dyck, Guide to State Politics and Policy 77 fig.6.1 (2014) (documenting rise of state ballot initiatives from 1904 through 2012).
101. There is some evidence their frequency may now be waning. See John G. Matsusaka, 2014 Ballot Propositions, in The Book of States, at 292 (forthcoming 2015) (noting 2014 total is lowest of any even-numbered year in this century).
102. Robert D. Cooter & Michael D. Gilbert, A Theory of Direct Democracy and the Single Subject Rule, 110 Colum. L. Rev. 687, 695-96 (2010).
103. C-Span Congressional Glossary, Omnibus Bill, C-SPAN, http://legacy.c-span.org/guide/congress/glossary/omnibus.htm [http://perma.cc/RKE5-W3P4] (last visited Aug. 15, 2015).
104. Sinclair, Unorthodox Lawmaking (4th ed.), supra note 27, at 112-13.
105. Glen S. Krutz, Hitching a Ride: Omnibus Legislating in the U.S. Congress 12 (2001)
106. Sinclair, Unorthodox Lawmaking (4th ed.), supra note 27, at 154.
107. Emergency Economic Stabilization Act of 2008, Pub. L. No. 110-343, 122 Stat. 3765 (codified in scattered titles of the U.S.C. (2012)).
108. See Summary: S.558—110th Congress (2007-2008), Library of Cong., https://www.congress.gov/bill/110th-congress/senate-bill/558 [https://perma.cc/JVH7-9APD] (last visited Aug. 15, 2015) (listing Senate passage date of September 18, 2007)
109. Robert Pear, Bailout Provides More Mental Health Coverage, N.Y. Times (Oct. 5, 2008), http://www.nytimes.com/2008/10/06/washington/06mental.html (on file with the Columbia Law Review).
110. Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399.
111. Sinclair, Unorthodox Lawmaking (4th ed.), supra note 27, at 3 (noting involvement of conferees from seven House committees and two Senate committees)
112. Theodore L. Garrett & Sonya D. Winner, Chapter 14. Legislative History of the Clean Air Act Amendments, 22 Envtl. L. Rep. (Envtl. Law Inst.) 10,321, 10,321 (1992), http://elr.info/sites/default/files/articles/22.10321.htm [http://perma.cc/XX4X-FJAH] (describing process and noting “given the lengthy and elaborate evolution of the amendments, it is difficult todetermine the source of many provisions of the final Act”).
113. Spoonful of Pork May Help Bitter Economic Pill Go Down, CNN (Oct. 4, 2008, 12:19 PM), http://www.cnn.com/2008/POLITICS/10/02/bailout.pork/ [http://perma.cc/K6R H-Y5CY].
114. Press Release, U.S. House of Representatives Comm. on Appropriations, Rogers: Omnibus Package Responsibly Funds the Federal Government, Avoids a Shutdown, Makes Good-Government Policy Changes (Dec. 9, 2014), http://appropriations.house.gov/news/documentsingle.aspx?DocumentID=393925 [https://perma.cc/SAG5-TQ8Y].
115. A search of the Federal Register and other sources for “omnibus rulemaking/rule” or “omnibus regulation” yielded very few results. It is possible that agencies are combining multiple regulations in a single rulemaking under different terminology, but searches for “consolidated” or “combined” rulemakings also did not produce considerable results.
116. Modifications to the HIPAA Privacy, Security, Enforcement, and Breach Notification Rules, 78 Fed. Reg. 5566, 5566 (Jan. 25, 2013) (to be codified at 45 C.F.R. pts. 160, 164) (referring to regulation as “omnibus final rule”).
117. Review of the Commission’s Broadcast Ownership Rules & Other Rules, 18 FCC Rcd. 13,620, ¶ 327 (2003) (addressing cross-ownership rules for both newspaperbroadcast and radio-television in single action)
118. Kathleen A. Kirby & Matthew L. Gibson, The Newspaper-Broadcast Cross-Ownership Rule: The Case for Regulatory Relief, Comm. Law., Spring 2007, at 22-23 (describing FCC “omnibus proceeding” in which FCC “sought comment on a broad list of questions”).
119. 340B Drug Pricing Program Omnibus Guidance, 80 Fed. Reg. 52,300, 52,300 (Aug. 28, 2015); see also infra notes 136-137 and accompanying text (describing HHS issuance of omnibus guidance).
120. See Mitigation of Beyond-Design-Basis Events, U.S. NRC, http://www.nrc.gov/reactors/operating/ops-experience/japan-dashboard/emergency-procedures.html [http:// perma.cc/RHJ8-M94G] (last updated July 13, 2015) (announcing Nuclear Regulatory Commission approval of consolidation of post-Fukushima rulemaking).
121. Greve & Parrish, supra note 30, at 507.
122. Jennifer Nou, Agency Self-Insulation Under Presidential Review, 126 Harv. L. Rev. 1755, 1792 (2013) (stating agencies may split rules into parts to avoid “economic significance” designation and thus avoid OIRA review)
123. Note, OIRA Avoidance, 124 Harv. L. Rev. 994, 999-1003 (2011) (examining how and why agencies avoid OIRA review).
124. Freeman & Rossi, supra note 50, at 1145-49 (providing examples where Congress divides implementation for same program between different agencies).
125. 504 U.S. 555, 558-59 (1992) (explaining combined delegation to Secretaries of Interior and of Commerce).
126. 135 S. Ct. 2480, 2486-87 (2015).
127. John K. Iglehart, The ACO Regulations—Some Answers, More Questions, 364 New Eng. J. Med. e35(1), e35(1) (2011) (listing agencies involved in ACO rules)
128. Thomas L. Greaney, Accountable Care Organizations—The Fork in the Road, 364 New Eng. J. Med. e1(1), e1(1)-e1(2) (2011) (discussing “delicate task” of agencies responsible for rules governing ACOs).
129. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 3022, 124 Stat. 119, 395 (2010) (codified at 42 U.S.C. § 1395jjj (2012)).
130. FTC & Dep’t of Just., Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program 6-8 (2011), http://www.justice.gov/atr/public/health_care/276458.pdf [http://perma.cc/C7 T7-M68F] (defining market share “safety zone” for ACOs).
131. Jacob E. Gersen, Administrative Law Goes to Wall Street: The New Administrative Process, 65 Admin. L. Rev. 689, 709-12 (2013) [hereinafter Gersen, New Administrative Process] (explaining Dodd-Frank’s “web-of-authority” mechanisms).
132. Robert Kaiser, Act of Congress 88-89 (2013) (recounting how “[g]iv[ing] both agencies identical laws and rules to enforce” allowed Dodd-Frank to avoid “jurisdictional fight[ing]” between committees).
133. The 2001 AUMF has also served as the key statutory authority for counterterrorism detention.
134. Oona Hathaway, Samuel Adelsberg, Spencer Amdur, Philip Levitz, Freya Pitts & Sirine Shebaya, The Power to Detain: Detention of Terrorism Suspects After 9/11, 38 Yale J. Int’l L. 123, 129-40 (2013) (analyzing detention authority under AUMF). Although the statute does not explicitly state that it authorizes detention, “all three branches of government have since affirmed that the statute authorizes detention.”.
135. Jennifer K. Elsea & Michael John Garcia, Cong. Research Serv., R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings (2014) (addressing all major U.S. court decisions regarding scope of 2001 AUMF with respect to detaining enemy combatants)
136. Jay M. Zitter, Annotation, Construction and Application of Authorization for Use of Military Force, 16 A.L.R. Fed. 2d 333 (2007) (providing overview of how AUMF has been interpreted and applied).
137. Roberta Romano, Regulating in the Dark, in Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation 86, 88 (Cary Coglianese ed., 2012) (arguing regulations enacted during crises should include “procedural mechanisms that require automatic subsequent review and reconsideration”).
138. Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
139. Richard F. Grimmett, Cong. Research Serv., RS22357, Authorization for Use of Military Force in Response to the 9/11 Attacks 2-3 (2007) (“Between September 12 and 14, 2001, draft language of a joint resolution was discussed and negotiated by the White House Counsel’s Office, and the Senate and House leaders of both parties.”)
140. Trent Lott, Herding Cats: A Life in Politics 222-25 (2005) (recalling passage of AUMF “[w]ithin minutes” of it being introduced in Senate)
141. David Abramowitz, The President, the Congress, and Use of Force: Legal and Political Considerations in Authorizing Use of Force Against International Terrorism, 43 Harv. Int’l L.J. 71, 71 (2002) (“While consideration of such legislation would normally have gone through the Committee, in this case the majority and minority leaders of both chambers conducted the negotiations.”).
142. Emergency Supplemental Appropriations Act to Meet Immediate Needs Arising from the Consequences of Hurricane Katrina, 2005, Pub. L. No. 109-61, 119 Stat. 1988.
143. See 151 Cong. Rec. 19,422 (2005) (discussing absence of Senate quorum)
144. Sinclair, Unorthodox Lawmaking (4th ed.), supra note 27, at 20 (“[T]he bill was passed by unanimous consent without a recorded vote, which would have revealed the lack of a quorum.”).
145. TARP ultimately became part of the broader bailout legislation. See Emergency Economic Stabilization Act of 2008, Pub. L. No. 110-343, tit. I, 132 Stat. 3765, 3767-99 (codified at 12 U.S.C. §§ 5211-5241 (2012)).
146. Kaiser, supra note 95, at 6, 11-14 (“Dodd and Frank went to work in their committees and converted [the Secretary of the Treasury’s three-page bill] into a 450-page bill . . . .”).
147. Archit Shah, Emergency Economic Stabilization Act of 2008, 46 Harv. J. on Legis. 569, 575-76 (2009)
148. see also supra notes 72-74 and accompanying text (giving background on passage of act).
149. Kaiser, supra note 95, at 14 (noting growth of consensus in support of bailout, especially following “cataclysmic[]” Dow drop of 777 points).
150. Po, Memorandum, supra note 51, at 1.
151. GAO, Federal Rulemaking, supra note 46, at 8.
152. Ellen R. Jordan, The Administrative Procedure Act’s “Good Cause” Exemption, 36 Admin L. Rev. 113, 119-169 (1984).
153. Despite courts’ claimed adherence to this view, see, for example Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1141 (D.C. Cir. 1992), agencies continue to rely on the exception.
154. Tony Pugh, “Epidemic of Fear” Has Driven Ebola Debate, Experts Say, Emergency Mgmt. (Nov. 11, 2014), http://www.emergencymgmt.com/health/Epidemic-Fear-Driven-Ebola-Debate-Experts-Say.html [http://perma.cc/KB3d-YB5W] (contrasting congressional hearings on urgency of Ebola response with public health officials’ statements on limited danger of Ebola in United States).
155. 5 U.S.C. § 553(b)(3)(B) (2012).
156. Ronald M. Levin, Direct Final Rulemaking, 64 Geo. Wash. L. Rev. 1, 2 (1995) (advocating for increased use of direct final rulemaking due to resource constraints and “cumbersome” nature of regular rulemaking process).
157. See GAO, Federal Rulemaking, supra note 46, at 14 (finding many rules sampled were explicitly termed by issuing agencies as direct final rules, or variations thereof).
158. Valerie Heitshusen, Cong. Research Serv., 98-310, Senate Unanimous Consent Agreements: Potential Effects on the Amendment Process 1 (2014) (explaining Senate ununanimous consent agreements)
159. Christopher M. Davis, Cong. Research Serv., 95-563, The Legislative Process on the House Floor: An Introduction 8 (2010) (outlining procedure for “suspension of the rules” in House of Representatives).
160. Sinclair, Unorthodox Lawmaking (4th ed.), supra note 27, at 25-26, 67-71 (“Much of the legislation considered under suspension is narrow in impact and minor in importance.”).
161. For instance, in the 113th Congress, forty-two bills were enacted in less than a month, twenty-nine of that number using the unanimous consent procedure. Some of those involved mundane matters, such as naming a bridge, see H.R. 2383, 113th Cong. (2013); others were more substantial, see H.R. 130, 113th Cong. (2013), which was a continuing appropriations act.
162. Po, Memorandum, supra note 51, at 1.
163. Federal Vacancies Reform Act of 1998, Pub. L. No. 105-277, § 151, 112 Stat. 2681, 2681-611 (codified as amended at 5 U.S.C. §§ 3345-3349d).
164. Anne Joseph O’Connell, Shortening Agency and Judicial Vacancies Through Filibuster Reform? An Examination of Confirmation Rates and Delays from 1981 to 2014, 64 Duke L.J. 1645, 1645, 1660-61, 1692-93 (2015) (showing increase in nomination failure rates for two most recent Presidents and arguing confirmation delays may lead to higher use of acting officials).
165. Peter L. Strauss et al., Gelhorn & Byse’s Administrative Law: Cases and Comments 761 (11th ed. 2011) (noting President Obama’s reliance).
166. Jake Tapper, Obama Will Name Ron Klain as Ebola Czar, CNN (Oct. 19, 2014, 2:07 PM), http://www.cnn.com/2014/10/17/politics/ebola-czar-ron-klain/ [http://perma.cc/36L3-MYUU].
167. Unconventional staffing is not limited to unexpected events. One of us has tracked the massive vacancies in top positions in federal agencies. In recent administrations, on average between one in four and one in six jobs that require Senate confirmation have sat empty or filled with an acting official.
168. Anne Joseph O’Connell, Vacant Offices: Delays in Staffing Top Agency Positions, 82 S. Cal. L. Rev. 913, 962-65 (2009) (estimating and counting total number of days Senate-confirmed positions in executive agencies were not filled by confirmed official in recent administrations).
169. Elizabeth Garrett, who has written extensively on these processes calls them “framework legislation,” a term we avoid because of its potential confusion with major framework statutes like the APA.
170. Elizabeth Garrett, Conditions for Framework Legislation, in The Least Examined Branch: The Role of Legislatures in the Constitutional State 294 (Richard W. Bauman & Tsvi Kahana eds., 2006)
171. Elizabeth Garrett, The Purposes of Framework Legislation, 14 J. Contemp. Legal Issues 717 (2005) [hereinafter Garrett, Purposes of Framework Legislation].
172. Garrett, Purposes of Framework Legislation, supra note 124, at 725-26 (explaining BRAC structure as example of congressional means of addressing otherwise “especially difficult” issue of military base closures).
173. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, §§ 3403, 10320, 124 Stat. 119, 489-506, 949-52 (2010) (codified at 42 U.S.C. § 1395kkk (2012)); see also Jost, supra note 4, at 24 (detailing purpose and structure of IPAB).
174. Defense Base Closure and Realignment Act of 1990, Pub. L. No. 101-510, §§ 2903-2904, 104 Stat. 1485, 1810-13 (codified at 10 U.S.C. § 2687 note (2012))
175. Garrett, Purposes of Framework Legislation, supra note 124, at 725-26 (“The base closure rules require that Congress affirmatively reject the recommendations, as a package, through a joint resolution in order to stop the recommendations from being implemented.”).
176. Jost, supra note 4, at 27-28 (“Congress cannot consider any amendment to [an IPAB] proposal that does not achieve the cost-reduction requ irements that [IPAB] isrequired to meet unless both vote to waive this provision . . . .”).
177. Aaron-Andrew P. Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J.L. & Pol. 345, 346-48 (2003) (attributing popularity of expedited procedures to “increasingly sclerotic nature of the usual ‘slow track’ legislative process”)
178. Garrett, Purposes of Framework Legislation, supra note 124, at 723-24, 727-28 (tracing history of congressional usage of “statutory framework law” in budget process and “‘fast track’ procedure” for free trade agreements).
179. William Mauldin, Fast-Track’s Passage Sets Up Round Two on Obama’s Trade Agenda, Wall St. J. (June 25, 2015), http://www.wsj.com/articles/fast-tracks-passage-setsup-round-two-on-obamas-trade-agenda-1435178359 (on file with the Columbia Law Review) (describing Senate’s 60-38 passage of fast-track).
180. Eric Kroh, Growing IRS Reliance on Informal Guidance Sows Uncertainty, Law 360 (Aug. 6, 2015), http://www.law360.com/articles/688113/growing-irs-reliance-oninformal-guidance-sows-uncertainty (on file with the Columbia Law Review) (attributing IRS reliance on guidance to instruct taxpayers to decreased funding).
181. See 5 U.S.C. § 553(b)(A) (creating exemption to notice-and-comment rulemaking procedures for “interpretative rules” and “general statements of policy”).
182. Nou, supra note 87, at 1788-89 (noting variety of instruments agencies can choose “that are more likely as a class to bypass presidential review”).
183. Raso, Strategic or Sincere, supra note 65, 785-86.
184. 340B Drug Pricing Program Omnibus Guidance, 80 Fed. Reg. 52,300, 52,300 (Aug. 28, 2015).
185. Bagley & Levy, supra note 24, at 442-43 (observing HHS “sidestep[ped] conventional administrative procedures” by relying on guidance to implement ACA)
186. Christine Monahan, Safeguarding State Interests in Health Insurance Exchange Establishment, 21 Conn. Ins. L.J. 375, 386 (2014-2015) (documenting “near constant informal communications between state and federal officials” during ACA implementation (emphasis added)).
187. Greve & Parrish, supra note 30, at 532-33.
188. Curtis W. Copeland & Maeve P. Carey, Cong. Research Serv., R41586, Upcoming Rules Pursuant to the Patient Protection and Affordable Care Act 1-2 & n.4 (2011) (noting ACA’s many rulemaking deadlines)
189. Romano, Iron Law, supra note 24, at 2 (attributing missed rulemaking deadlines under Dodd-Frank to “vast number of required rules[,] . . . complexity of issues[,] . . . [and] intensive lobbying by affected parties”).
190. Greve & Parrish, supra note 30, at 505 (“The Dodd-Frank Act requires close to 400 rulemakings, often accompanied by tight deadlines. That has not been done, because it cannot be done.”).
191. Bagley & Levy, supra note 24, at 446-49 (explaining how HHS guidance on benchmark plans gave states flexibility to test benchmarking health care plans before HHS formalized benchmarking through NPRM).
192. Rom no, Iron Law, supra note 24, at 34-36 (criticizing extensive use of guidance by CFPB).
193. Gluck, Intrastatutory Federalism, supra note 4, at 537 (discussing state government)
194. O’Connell, Bureaucracy at the Boundary, supra note 57, at 857-61 (discussing quasi-agencies).
195. DiIulio, supra note 58, at 5-6 (arguing such delegations vastly increased after 1960)
196. Farhang & Yaver, supra note 49 (manuscript at 10-11) (finding spikes in delegation outside federal government in 1960s and 1990s)
197. O’Connell, Bureaucracy at the Boundary, supra note 57, at 850, 870 tbl.1 (displaying taxonomy of unorthodox delegates and giving examples).
198. Gluck, Intrastatutory Federalism, supra note 4, at 572 (arguing using state delegates allows Congress to “claim the field” for itself while “rely[ing] on state expertise and state political cover”)
199. Abbe R. Gluck, Federalism from Federal Statutes: Health Reform, Medicaid, and the Old-Fashioned Federalists’ Gamble, 81 Fordham L. Rev. 1749, 1749 (2013) [hereinafter Gluck, Federalism from Federal Statutes] (detailing how use of states in ACA is modern form of federalism).
200. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1333(a)(1), 124 Stat. 119, 206 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (codified at 42 U.S.C. § 18053) (“[T]he Secretary shall, in consultation with the National Association of Insurance Commissioners (NAIC), issue regulations for the creation of [multi-state] health care choice compacts under which 2 or more States may enter into an agreement . . . .”)
201. Nina A. Mendelson, Private Control over Access to the Law: The Perplexing Federal Regulatory Use of Private Standards, 112 Mich. L. Rev. 737, 749 (2014)[hereinafter Mendelson, Private Control]
202. see also 29 U.S.C. § 655(a) (2012) (“[T]he Secretary shall . . . by rule promulgate as an occupational safety or health standard any national consensus standard . . . .”).
203. Patient Protection and Affordable Care Act § 1302(b)(1), 124 Stat. at 163.
204. Monahan, supra note 138, at 382-86 (outlining executive and congressional attempts to include state input in rulemaking).
205. Mendelson, Private Control, supra note 148, at 750.
206. Recommendations of the Administrative Conference of the United States, 44 Fed. Reg. 1357, 1358 (Jan. 5, 1979)
207. Emily S. Bremer, Incorporation by Reference in an Open-Government Age, 36 Harv. J.L. & Pub. Pol’y 131, 149 (2013).
208. Bremer, supra note 152 at 147-48.
209. Agencies have to use these volunteer standards unless impractical.
210. Mendelson, Private Control, supra note 148, at 740
211. Strauss, Private Standards, supra note 62, at 499-500 (providing additional examples of private standards).
212. Rioux, supra note 63, at 1.
213. Eric Biber, Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction, 26 Va. Envtl. L.J. 461, 501-02 (2008) (outlining wide latitude for inaction afforded agencies in environmental context).
214. Marea B. Tumber, The ACA’s 2017 State Innovation Waiver: Is ERISA a Roadblock to Meaningful Healthcare Reform?, 10 U. Mass. L. Rev. 388, 405-07 (2015) (explaining Vermont’s adoption of single-payer system and request for ACA waiver from HHS).
215. David J. Barron & Todd D. Rakoff, In Defense of Big Waiver, 113 Colum. L. Rev. 265, 279 (2013) (discussing Obama Administration’s practice of “allow[ing] states ‘to move forward with . . . reforms . . . in a manner that was not originally contemplated by the No Child Left Behind Act of 2001’”)
216. See also U.S. Dep’t of Educ., ESEA Flexibility 1 (2012), http://www2.ed.gov/policy/eseaflex/approved-requests/flexrequest.doc (on file with the Columbia Law Review) (explaining waiver process).
217. For a recent important exception, see Sidney D. Watson, Out of the Black Box and Into the Light: Using Section 1115 Medicaid Waivers to Implement the Affordable Care Act’s Medicaid Expansion, 15 Yale J. Health Pol’y L. & Ethics, 213, 215 (2015) (noting how new disclosure requirements for section 1115 waiver requests have increased transparency and process).
218. Professor Strauss’s work is an exception: He was an early identifier of the President’s many and often conflated roles. See Peter L. Strauss & Cass R. Sunstein, The Role of the President and OMB in Informal Rulemaking, 38 Admin. L. Rev. 181, 188-92 (1986) (developing account of presidential roles)
219. Strauss, Overseer or Decider, supra note 1, at 696-705 (noting dual roles are “often unremarked” in academic commentary and explaining differences).
220. Indeed, Strauss had written about the President’s role in rulemaking even a decade earlier: [T]he President is simply in error and disserves the democracy he leads when he behaves as if rulemakings were his rulemakings. The delegations of authority that permit rulemaking are ordinarily made to others, not him—to agency heads whose limited field of action and embeddedness in a multi-voiced framework of legislature, President, and court are the very tokens of their acceptability in a culture of law.
221. Peter L. Strauss, Presidential Rulemaking, 72 Chi.-Kent L. Rev. 965, 984 (1997).
222. Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 Const. Comment. 307, 312-21 (2006) (recounting history of signing statements by American Presidents through George W. Bush).
223. For a recent example, for example., Off. of the Press Sec’y, Statement by the President, WhiteHouse.gov (Apr. 18, 2014) http://www.whitehouse.gov/the-press-office/2014/04/18/statement-president [http://perma.cc/BXV9-57HF] (interpreting amendment to section 407 of Foreign Relations Authorization Act as “advisory,” not binding, in circumstances where it would interfere with President’s powers over foreign relations).
224. Strauss & Sunstein, supra note 160, at 182-83 (“[T]he delegated authority for lawmaking remains where it was put by Congress, in the agencies, and is part of the ‘law’ which the President is to execute faithfully.”).
225. Kaiser, supra note 95, at 37, 75, 84, 94, 112, 151 (cataloging Obama Administration’s significant involvement in drafting Dodd-Frank).
226. Jesse Lee, A Bipartisan Meeting on Health Reform: The Invites Are Out, WhiteHouse.gov Blog (Feb. 12, 2010, 4:35 PM), https://www.whitehouse.gov/blog/2010/02/12/a-bipartisan-meeting-health-reform-invites-are-out [http://perma.cc/3E49-MF6Z] (announcing meeting about ACA with high-level officials).
227. Exec. Order No. 13,636, 78 Fed. Reg. 11,737 (Feb. 19, 2013).
228. Eric A. Fischer et al., Cong. Research Serv., R42984, The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress 14 (2013) (“E.O. 13636 was issued in the wake of the lack of enactment of cybersecurity legislation in the 112th Congress, apparently at least in part as a response to that.”).
229. Exec. Order No. 12,532, 3 C.F.R. 387 (1986), revoked by Exec. Order No. 12,769, 3 C.F.R. 342 (1992)
230. John R. Bond & Richard Fleisher, The President in the Legislative Arena 66-67 (1990)
231. Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power 90 (2001) (noting Presidents may use executive orders to “preempt legislation or undercut Congress”).
232. Farber & O’Connell, supra note 29, at 1155-57 (giving examples, including President Obama’s climate change order, issued despite Clear Air Act “not [having been] enacted to address climate change”).
233. Charlie Savage, Shift on Executive Power Lets Obama Bypass Rivals, N.Y. Times (Apr. 22, 2012), http://www.nytimes.com/2012/04/23/us/politics/shift-on-executive-powerslet-obama-bypass-congress.html (on file with the Columbia Law Review) (describing President’s unilateral “We Can’t Wait” initiative).
234. See generally We Can’t Wait, WhiteHouse.gov, https://www.whitehouse.gov/economy/jobs/we-cant-wait [http://perma.cc/7PZB-6XTZ] (last visited Aug. 16, 2015).
235. Memorandum on Power Sector Carbon Pollution Standards, 2013 Daily Comp. Pres. Doc. 457 (June 25, 2013), http://www.gpo.gov/fdsys/pkg/DCPD-201300457/pdf/DCPD-201300457.pdf [http://perma.cc/M5AB-CV5J] [hereinafter Carbon Pollution Memorandum].
236. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 126 (2000) (invalidating FDA’s regulations of tobacco products).
237. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2385 (2001) (“[A]n era of presidential administration has arrived.”).
238. For a notable exception, see Kevin M. Stack, The Statutory President, 90 Iowa L. Rev. 539, 599-600 (2005) [hereinafter Stack, Statutory President] (discussing presidential authority to act “pursuant o a statute” and insisting “Congress is in charge” (internal quotation marks omitted)).
239. See Reorganization Act Amendments of 1984, Pub. L. No. 98-614, 98 Stat. 3192 (codified as amended at 5 U.S.C. §§ 901-912 (2012)) (requiring joint resolution approving of presidential reorganization of government before such reorganization could take effect).
240. Danielle Kurtzleben, Obama to Merge 6 Government Agencies, Cut 2,000 Employees, U.S. News (Jan. 13, 2012, 5:25 PM), http://www.usnews.com/news/articles/2012/01/13/obama-to-merge-6-government-agencies-cut-2000-employees [http://perma.cc /W4QH-CU53] (“[T]he White House is asking Congress to grant it authority to make cuts to the executive branch—authority that Congress rescinded in 1984.”).
241. Daphna Renan, Pooling Powers, 115 Colum. L. Rev. 211, 219 (2015).
242. Robert W. Hahn & Cass R. Sunstein, A New Executive Order for Improving Federal Regulation? Deeper and Wider Cost-Benefit Analysis, 150 U. Pa. L. Rev. 1489, 1494-95 (2002) (noting Bush II Administration’s use of prompt letters and calling for expanded OIRA role).
243. Farber & O’Connell, supra note 29, at 1155-56 (observing “presidential directives compel agency action” at times).
244. See Exec. Order No. 12,866, 3 C.F.R. 638 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 802-06 (2012); Exec. Order No. 12,291 §§ 7-9, 3 C.F.R. 127, 131-34 (1982), revoked by Exec. Order No. 12,866 § 11, 3 C.F.R. at 649 (1994).
245. Lisa Heinzerling, Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House, 31 Pace Envtl. L. Rev. 337, 356-57 (2014) (recounting OIRA involvement in EPA rulemaking on ozone standards).
246. Farber & O’Connell, supra note 29, at 1160-1162.
247. Lowande, supra note 54, at 725 (“Analyzing memoranda issued between 1946 and 2013, [shows] memoranda are increasingly significant, measurable outputs of executive action.”).
248. Carbon Pollution Memorandum, supra note 171.
249. Strauss, Overseer or Decider, supra note 1, at 697.
250. Po, New Regulatory Process, supra note 29, at 22-26 (“[A]gencies and the White House are no longer distinct actors when promulgating rules . . . .”).
251. Bressman & Gluck, Part II, supra note 28, at 747 (highlighting noncongressional drafters of legislation).
252. Michael D. Gilbert, Interpreting Initiatives, 97 Minn. L. Rev. 1621, 1627 (2013) (“[C]ourts interpreting initiatives behave much like courts interpreting ordinary legislation.”)
253. Jane S. Schacter, The Pursuit of “Popular Intent”: Interpretive Dilemmas in Direct Democracy, 105 Yale L.J. 107, 130 (1995) (explaining judicial interpretation of initiatives as dominated by statutory language, despite voters’ reliance on other sources and “substantial[] incomprehensib[ility]” of text to most voters).
254. Julian N. Eule, Judicial Review of Direct Democracy, 99 Yale L.J. 1503, 1511-12 (1990) (describing direct democracy as means of bypassing possible hurdles and corruption of legislative process).
255. Schacter, supra note 188, at 120-21 (describing informative sources for initiatives).
256. William N. Eskridge, Abbe R. Gluck & Victoria F. Nourse, Statutes, Regulation, and Interpretation: Legislation and Administration in the Republic of Statutes 695 (2014) [hereinafter Eskridge et al., Statutes, Regulation, and Interpretation] (noting “bait-and-switch” argument of Michigan voters with regard to same-sex marriage amendment in National Pride at Work, Inc. v. Governor of Michigan, 748 N.W.2d 524 (Mich. 2008)).
257. Cary Coglianese, Citizen Participation in Rulemaking: Past, Present, and Future, 55 Duke L.J. 943, 952-59 (2006) (summarizing empirical studies finding some evidence e-rulemaking increased citizen participation)
258. Beth Simone Noveck, The Electronic Revolution in Rulemaking, 53 Emory L.J. 433, 516-17 (2004) (describing potential for e-rulemaking to increase number of public comments).
259. Peter L. Strauss, Implications of the Internet for Quasi-Legislative Instruments of Regulation, 28 Windsor Y.B. Access to Just. 377, 391-93 (2010) (summarizing e-rulemaking initiative and emphasizing potential for “a kind of dialogue about proposed rulemaking that simply could not have been imagined in paper format”).
260. Kat Greene, FCC Gets More than 3M Net Neutrality Comments, Law 360 (Sept. 15, 2014, 9:21 PM), http://www.law360.com/articles/577563/fcc-gets-more-than-3m-netneutrality-comments [http://perma.cc/C9VD-WBXJ].
261. Nina A. Mendelson, Foreword: Rulemaking, Democracy, and Torrents of E-Mail, 79 Geo. Wash. L. Rev. 1343, 1359 (2011) (raising specter of “dismissal or pro forma treatment of significant number of public comments” by agencies in favor of “technically and scientifically oriented comments”).
262. Required Warnings for Cigarette Packages and Advertisements, 76 Fed. Reg. 36,628, 36,638-39 (June 22, 2011) (describing survey).
263. Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Government 307-12 (2008) (collecting citations).
264. Bill Heniff, Cong. Research Serv., RL31943, Budget Enforcement Procedures: Senate Pay-As-You-Go (PAYGO) Rule 2 (2010), http://assets.opencrs.com/rpts/RL31943_20100112.pdf [http://perma.cc/QAD9-2CWR] (explaining internal Senate PAYGO rule)
265. Philip G. Joyce, The Congressional Budget Office: Honest Numbers, Power and Policymaking 224 (2011) (describing role of CBO in wake of rules requiring CBO to score budgetary impact of most legislation)
266. The Statutory Pay-As-You- Go Act of 2010: A Description, White House Off. of Mgmt. & Budget, http://www.whitehouse.gov/omb/paygo_description [http://perma.cc/FJZ2-45H8] (last visited Aug. 16, 2015) (same) [hereinafter OMB, Statutory PAYGO Act].
267. Bressman & Gluck, Part II, supra note 28, at 777-78.
268. Kaiser A, Supra note 95, at 88-89 (describing turf battles in passage of Dodd-Frank between Hou se Agricultural and Financial Services Committees over control of derivatives trading).
269. Metzger, Agencies, Polarization, and the States, Supra note 30.
270. Rodriguez et al., Supra note 56, at 6 (discussing connection between signing statements and gridlock).
271. Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 Calif. L. Rev. 273, 319 (2011) [hereinafter Pildes, Center Does Not Hold] (noting connection between power of party leaders and polarization).
272. One of us has detailed this phenomenon. Gluck, Intrastatutory Federalism, Supra note 4.
273. Thomas O. McGarity, Some Thoughts on “Deossifying” the Rulemaking Process, 41 Duke L.J. 1385, 1441 (1992) (explaining attractiveness of soft regulation in part due to “judicially imposed record-assembling” required for APA rulemaking).
274. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208-09 (1988) (requiring clear statement by Congress to make regulation retroactive).
275. United States v. Mead Corp., 533 U.S. 218, 246 (2001) (Scalia, J., dissenting) (linking deference for notice-and-comment regulation to “increase” in such rulemaking).
276. Sarah Binder, The Dysfunctional Congress, 18 Ann. Rev. Pol. Sci. 85-97 (2015) (“[L]evels of legislative deadlock have steadily risen over the past half century.”).
277. Sinclair, Unorthodox Lawmaking (4th ed.), Supra note 27, at 142-165 (explaining partisanship can contribute to gridlock but gridlock can result from other factors including Senate cloture rules, split party control of Congress or an agency, and interest-group pressures)
278. David Epstein & Sharyn O’Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making Under Separate Powers 80, 157 (1999) (“[N]on-executive actors . . . receive a greater percentage of delegations during divided government.”).
279. Bagley & Levy, Supra note 24, at 444-46, 453-54 (suggesting unorthodox ACA lawmaking processes created imperative for unorthodox rulemaking for ACA’s Essential Health Benefits).
280. King v. Burwell, 135 S. Ct. 2480, 2492 (2015). The regulation at issue in King was unorthodox in the sense that it was the output of an overlapping delegation, but it was orthodox in the sense that it went through prior notice and comment.
281. Po, New Regulatory Process, Supra note 29, at 40-45 (developing account of pressures leading to increased unorthodox agency action).
282. Farber & O’Connell, Supra note 29, at 1155 (identifying greenhouse-gas order as example of presidential attempt to “direct agency action that the current Congress does not support or has not ordered”) Supra note 158 and accompanying text (describing No Child Left Behind Act’s state waiver process).
283. David C. King, Turf Wars: How Congressional Committees Claim Jurisdiction 105-120 (1997) (discussing turf war phenomenon)
284. Anne Joseph O’Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, 94 Calif. L. Rev. 1655-1713 (2006) [hereinafter O’Connell, Smart Intelligence] (noting 1946 consolidation and later jurisdictional conflicts).
285. CSIS-BENS Task Force on Cong. Oversight of the Dep’t of Homeland Sec., Untangling the Web: Congressional Oversight and the Department of Homeland Security 2 (2004), http://csis.org/files/media/csis/events/041210_dhs_tf_whitepaper.pdf [http://perma.cc/4F5T-4P2W].
286. Jonathan B. Bendor, Parallel Systems: Redundancy in Government 256 (1985) (discussing effect of strong and weak agencies of representation on bureaus)
287. See Volcker Rule Implementation Frequently Asked Questions, Off. Comptroller Currency (July 16, 2015), http://www.occ.gov/topics/capital-markets/financial-markets/trading/volcker-rule-implementation/volcker-rule-implementation-faqs.html [http://perma .cc/5VX4-929D] (listing agencies with implementation authority over Volcker Rule).
288. Gersen, Overlapping and Underlapping, Supra note 32, at 208-209 (outlining jurisdictional “overlap” and “underlap”).
289. Krutz, Supra note 71, at 14 (finding “jurisdictional quagmire” in health policy has contributed to “attachments to omnibus measures”).
290. Bressman & Gluck, Part II, Supra note 28, at 747-53.
291. Gluck, Federalism from Federal Statutes, Supra note 146, at 1760-1763 (elaborating on how federal government often relies on states to implement federal laws where new federal statutes cover areas of traditional state control).
292. Supra note 146 and accompanying text (noting congressional delegation to states of certain traditionally state-dominated areas of law).
293. Andrew Kohut, Debt and Deficit: A Public Opinion Dilemma, Pew Research Ctr. (June 14, 2012), http://www.people-press.org/2012/06/14/debt-and-deficit-a-public-opiniondilemma/ [http://perma.cc/2Y2E-UAHA].
294. Philip G. Joyce & Robert D. Reischauer, Deficit Budgeting: The Federal Budget Process and Budget Reform, 29 Harv. J. on Legis. 429-433 (1992) (describing mid- 1980s deficits as “alarming”).
295. Sinclair, Unorthodox Lawmaking (4th ed.), Supra note 27, at 111-164 (noting how fiscal pressures drive omnibus legislation in unified government).
296. David Rogers, Should President Obama Veto Spending Bills?, Politico (June 25, 2014), http://www.politico.com/story/2014/06/president-obama-spending-bills-veto-108301.html [http://perma.cc/8GH5-NV7A] (noting congressional Democrats’ desire to avoid presidential veto of spending bill).
297. See supra text accompanying note 129 (describing fast-track budget process in Senate).
298. Shailagh Murray & Paul Kane, Congress Passes Stimulus Package, Wash. Post (Feb. 14, 2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/02/13/AR2009021301596.html [http://perma.cc/45QZ-84EZ] (summarizing “dozens of narrow spending provisions that survived in the final bill”).
299. Harold E. Varmus, The Art and Politics of Science 206-08 (2009)
300. George W. Bush, Opinion, Stem Cell Science and the Preservation of Life, N.Y. Times (Aug. 12, 2001), http://www.nytimes.com/2001/08/12/opinion/stem-cell-science-and-the-preservation-oflife.html (on file with the Columbia Law Review) (announcing policy of limiting federal funding to existing stem cell lines).
301. OMB, Statutory PAYGO Act, Supra note 198.
302. Tim Westmoreland, Standard Errors: How Budget Rules Distort Lawmaking, 95 Geo. L.J. 1555-1599 (2007) (referring to such analysis as “budgetary euthanasia”).
303. Frequently Asked Questions About CBO Cost Estimates, Cong. Budget Off., https://www.cbo.gov/about/products/ce-faq [http://perma.cc/L6KS-BA2X] (last visited Aug. 16, 2015).
304. No. 12,866 § 11, 3 C.F.R. at 649 (1994); James C. Miller III, The Early Days of Reagan Regulatory Relief and Suggestions for OIRA’s Future, 63 Admin. L. Rev. 93, 95-96 (2011) (describing precursors to OIRA and Reagan’s economic policy priorities leading to OIRA’s creation).
305. Cheryl D. Block, Congress and Accounting Scandals: Is the Pot Calling the Kettle Black?, 82 Neb. L. Rev. 365-424 (2003) (describing origins of unified budget). Only Social Security and the Postal Service have been taken off that budget, by specificstatute. Taxes and the Budget: What Does It Mean for a Government Program to Be “Off- Budget”?, Tax Pol’y Ctr., http://www.taxpolicycenter.org/briefing-book/background/taxes-budget/off-budget.cfm [http://perma.cc/N9F5-5A27] (last updated Dec. 13, 2007).
306. O’Connell, Bureaucracy at the Boundary, Supra note 57, at 879-880.
307. DiIulio, Supra note 58, at 35 (noting “for decades,” Congress “has used proxy administration to spare the public from reckoning with the federal government’s everincreasing size and scope”).
308. Rose-Ackerman, Supra note 45, at 192 (highlighting dangers of making substantive law through appropriations process).
309. Mathew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va. L. Rev. 431-444 (1989) (noting APA’s deck-stacking attributes).
310. Mendelson, Private Control, Supra note 148, at 739-743 (noting wide use of private standards and discussing consequences). Direct democracy—the people as drafters—may encourage the use of unorthodox delegates by creating new hybrid organizations to carry out initiatives. See, e.g., Cal. Const. art. XXXV, § 1 (creating California Institute of Regenerative Medicine).
311. Epstein & O’Halloran, Supra note 218, at 157-158 (showing Congress delegatesore to actors further from presidential control when President is of different party). The Administrative Conference of the United States is currently studying agency drafting ractices as well.
312. Technical Assistance by Federal Agencies in the Legislative Process, Admin. Conf. U.S., https://www.acus.gov/research-projects/technical-assistance-federalagencies-legislative-process [https://perma.cc/49YN-YL7E] (last visited Sept. 25, 2015).
313. Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 Cornell L. Rev. 397-409 (2007) [hereinafter Mendelson, Regulatory Beneficiaries].
314. Compare Sinclair, Unorthodox Lawmaking (4th ed.), Supra note 27, at 276 (contending unorthodox lawmaking “has made it possible for our most representative branch to continue to perform its essential function of lawmaking in a time of popular division and ambiguity”)
315. Sinclair, Unorthodox Lawmaking (1st ed.), Supra note 15, at 231 (contending unorthodox lawmaking presents some “tension among the values of representation, responsiveness and responsibility”).
316. Lisa Heinzerling, Divide and Confound: The Strange Allocation of U.S. Regulatory Authority over Food, in Food and Drug Regulation in an Era of Globalized Markets (forthcoming 2015), http://ssrn.com/abstract=2507346 [http://perma.cc/42LE- 3N6Y] (identifying coordination issues in food regulation due to such “fragmentation”).
317. Jeff Overley, Kennedy’s Gridlock Comments Spook ACA Backers, Law 360 (Mar. 23, 2015, 6:34 PM), http://www.law360.com/articles/634801/kennedy-s-gridlock-comments-spook-aca-backers [http://perma.cc/2X8T-52BM].
318. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2690 (2015) (citing cases); John G. Matsusaka, Direct Democracy Works, 19 J. Econ. Persp. 185, 200 (2005) (“[T]erm limits[] [are] an issue where legislators’ self-interest conflicts with the desires of their constituents.”).
319. O’Connell, Bureaucracy at the Boundary, Supra note 57, at 888-889.
320. Exec. Order No. 12,866 § 1(b)(5), 3 C.F.R. 639 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 86-91 (2012) (“When an agency determines that a regulation is the best available method of achieving the regulatory objective, it shall design its regulations in the most cost-effective manner to achieve the regulatory objective.”).
321. Bagley & Levy, Supra note 24, at 453-456 (describing HHS’s outreach to affected parties after issuing bulletin announcing benchmarking policy)
322. Tim Wu, Agency Threats, 60 Duke L.J. 1841-1857 (2011) (arguing guidance used to threaten can be particularly effective in changing industries where agencies prefer not to set inflexible policy nor wait to get involved).
323. Juliet Eilperin, Ebola Presents Health, Political Challenges for Obama, Wash. Post (Oct. 16, 2014), http://www.washingtonpost.com/politics/2014/10/16/1b2c1636-556d-11e4-892e-602188e70e9c_story.html [http://perma.cc/MM38-9FNX] (reporting criticisms of President Obama’s response to Ebola outbreak and travel ban discussions). Critics of recent financial regulation claim that many “crisis-driven” rules have not been adequately vetted.
324. Daniel Wilson, CFTC Commissioner Slams Finance Regulation “Explosion,” Law 360 (Nov. 20, 2014), http://www.law360.com/articles/598060/cftc-commissioner-slams-finance-regulationexplosion [http://perma.cc/K9P4-5WS8] (quoting CFTC Commissioner criticizing his own agency for this reason).
325. Farber & O’Connell, Supra note 29, 1138-39, 1162-67 (summarizing studies and examples of OIRA’s political motivations).
326. William N. Eskridge., Phillip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 66-68 (4th ed. 2007).
327. Pildes, Center Does Not Hold, Supra note 204, at 331 (suggesting “American democracy” may “involv[e] an unfortunate tradeoff between accountability and governability”).
328. O’Connell, Bureaucracy at the Boundary, Supra note 57, at 892 (noting efficiency and accountability can be in conflict but are not necessarily so, and considering these two metrics for quasi-agencies).
329. Sinclair, Unorthodox Lawmaking (4th ed.), Supra note 27, at 269 (pointing out orthodox practices can also be exclusionary).
330. Jacob E. Gersen & Anne Joseph O’Connell, Deadlines in Administrative Law, 156 U. Pa. L. Rev. 923-944 (2008) (“Among significant actions, deadline actions are issued with significantly fewer comment periods.”).
331. O’Connell, Smart Intelligence, Supra note 223, at 1722-1723 (“[R]edundant structures may decrease accountability because the public cannot call upon any single agency to account for the failure of the entire community.”).
332. David J. Hayes, The White House Needs to Learn When to Delegate, Wash. Monthly: Ten Miles Square Blog (July 15, 2015, 10:21 AM), http://www.washingtonmonthly.com/tenmiles-square/2015/07/the_white_house_needs_to_learn056594.php [http://perma.cc/S 4TT-VQ9X].
333. Abbe R. Gluck, Our [National] Federalism, 123 Yale L.J. 1996-2016 (2014) [hereinafter Gluck, Our [National] Federalism] (emphasizing “inadequacy of the doctrines invoked by the Court” in recent case law, which suggest states may be shielded from citizens’ challenges to states’ implementation of federal Medicaid statute).
334. Open Government Guide, Reporters Comm. for Freedom of the Press, http://www.rcfp.org/open-government-guide [http://perma.cc/YL3Y-Z96S] (last visited Aug. 15, 2015) (listing state freedom of information legislation).
335. Strauss Private Standards, Supra note 62, at 559 (advocating for “citizen’s right” to access private standards incorporated into regulatory standards).
336. See Exec. Order No. 12,866 § 6(b)(4)(C), 3 C.F.R. 638 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 802-06 (2012) (detailing what has to be disclosed about ex parte meetings with OIRA).
337. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (explaining FOIA applies to Executive Office of the President but not to Office of thePresident).
338. Ilya Somin, Democracy and Political Ignorance: Why Smaller Government Is Smarter 3-4, 97-99 (2013) (“[P]olitical ignorance is extensive and poses a very serious threat to democratic theory.”).
339. Eskridge et al., Statutes, Regulation, and Interpretation, Supra note 191, at 695 (discussing risk of direct democracy if proponents say one thing during initiative campaigns but draft actual legislative text to mean another).
340. Sinclair, Unorthodox Lawmaking (4th ed.), Supra note 27, at 275-276 (arguing unorthodox lawmaking enables “our most representative branch to continue to perform its essential function of lawmaking”). But claims to an emergency may “enabl[e] alreadypowerful actors to extend and entrench their power.” Jennifer C. Rubenstein, Emergency Claims and Democratic Action, Soc. Phil. & Pol’y (forthcoming 2015) (manuscript at 5), https://www.law.berkeley.edu/files/Emergency_claims_and_Democratic_Actions____GALA_workshop_11.20.14-1.pdf [http://perma.cc/2WCL-UUMP].
341. Romano, Iron Law, Supra note 24, at 27 (faulting legislators for rushing to “offthe- rack solutions” because of their “high visibility” without regard to appropriateness).
342. Eric A. Posner & Adrian Vermeule, Accommodating Emergencies, 56 Stan. L. Rev. 605-609 & n. 10 (2003) (noting pressure on executive to act quickly in emergencies).
343. Pozen, Supra note 30, at 8 (reframing certain executive actions in face of congressional inaction as “self-help”)
344. Matthew C. Stephenson, Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?, 122 Yale L.J. 940-972 (2013) (suggesting President may appoint key officials without Senate confirmation where legislators refuse to vote on appointment). In the oral argument on the constitutionality of recess appointments, Justices expressed skepticism of the government’s argument (which was not advanced in its briefs) that such appointments countered congressional “intransience.”
345. Blackman, Supra note 30, at 10-13. The public may also expect unilateral action. Cf. Dan Balz, In Washington, Political Dysfunction and Grim Outlooks Are the New Normal, Wash. Post (Dec. 13, 2014), http://www.washingtonpost.com/politics/political-dysfunction-the-newnormal/2014/12/13/da774e32-82ec-11e4-9f38-95a187e4c1f7_story.html [http://perma.cc /G25A-5ULR] (noting most Americans do not expect parties to cooperate in meaningful ways).
346. Gluck, Intrastatutory Federalism, Supra note 4, at 607 (noting “under- and overinclusivity problems” when existing canons are applied to multiple-agency-delegating statutes).
347. Gluck, Imperfect Statutes, Supra note 5 (manuscript at 26-28) (elaborating general judicial practice of applying same interpretive rules to all types of legislation).
348. Farber & O’Connell, Supra note 29, at 1144-1145 (“In challenges to an agency’s action, a generally unspoken assumption is that the action must be authorized by a congressional enactment.”).
349. Sinclair, Unorthodox Lawmaking (4th ed.), Supra note 27, at 128-1231 (“When the president and congressional majority share a partisan affiliation . . . informal processes are likely to be adequate for reaching agreements.”).
350. Simon F. Haeder & Susan Webb Yackee, Influence and the Administrative Process: Lobbying the U.S. President’s Office of Management and Budget, 109 Am. Pol. Sci. Rev. 507-518 (2015) (“[O]ur investigations suggest a statistically and substantively meaningful association between interest group lobbying and regulatory policy change during OMB Final Rule review.”)
351. Lydia DePillis, Inside the Battle to Overhaul Overtime - and What It Says About How Lobbying Has Changed, Wash. Post (Sept. 4, 2015), http://www.washingtonpost.com/news/wonkblog/wp/2015/09/04/inside-the-battle-to-overhaulovertime- and-what-it-tells-us-about-how-lobbying-works-now[http://perma.cc/FG3R-GLL3] (“As the Obama Administration has resorted to executive action as an end run around a gridlocked and hostile Congress, lobbyists have turned their attention to the more complexand obscure world of cabinet agencies, because rulemaking and regulation is where today’s policy-making wars are fought.”).
352. Joshua D. Clinton et al., Influencing the Bureaucracy: The Irony ofCongressional Oversight, 58 Am. J. Pol. Sci. 387-397 (2014) (documenting “strongcorrelation between the number of involved congressional committees and relative presidential influence”).
353. DiIulio, Supra note 58, at 25 (“[S]tate and local governments function ever less like sovereign civic authorities and even more like Washington’s administrative appendages.”).
354. Kaiser, Supra note 95, at 6-14.
355. Sinclair, Unorthodox Lawmaking (4th ed.), Supra note 27, at 188-193.
356. For instance, if the White House and party leaders shape major legislation, members of Congress likely have fewer incentives to develop their own expertise (and senior staff members are often lured away to higher salaries on K Street). Cf. Kaiser, Supra note 95, at 25-131 (noting congressional staff departing to financial institutions and organizations representing them).
357. Farber & O’Connell, Supra note 29, at 1180-1188 (examining feasible reforms of unorthodox rulemaking by all three branches).
358. Gluck, Imperfect Statutes, Supra note 5.
359. For a detailed exposition of the arguments in this paragraph, see Gluck, Imperfect Statutes, Supra note 5 (manuscript at 3).
360. Richard H. Pildes, Institutional Formalism and Realism in Constitutional and Public Law, 2013 Sup. Ct. Rev. 1, 2-4.
361. John F. Manning, Inside Congress’s Mind, 115 Colum. L. Rev. 1911-1926 (2015) (providing account of textualism grounded in “intent skepticism”).
362. Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 Admin. L. Rev. 501-524 (2005) (discussing institutional features affecting agency statutory interpretation)
363. Strauss, When the Judge, Supra note 1, at 329-335 (highlighting importance of legislative history to agency statutory interpretation).
364. Christopher J. Walker, Inside Agency Statutory Interpretation, 67 Stan. L. Rev. 999 (2015) (presenting results of survey of agency interpretive practices and suggesting implications for doctrine).
365. United States v. Mead Corp., 533 U.S. 218, 229 (2001) (emphasizing deference due to regulations promulgated through notice-and-comment procedure).
366. See infra note 364 and accompanying text (explaining enrolled bill doctrine).
367. Hans A. Linde, Due Process of Lawmaking, 55 Neb. L. Rev. 197 (1976).
368. Pamela S. Karlan, Foreword: Democracy and Disdain, 126 Harv. L. Rev., 65-66 (2012) (arguing modern Justices see “the political process as perhaps irredeemably flawed, [and] see the legislative process as an inferior substitute for judicial analysis”)
369. Bertrall L. Ross II, The State as Witness: Windsor, Shelby County, and Judicial Distrust of the Legislative Record, 89 N.Y.U. L. Rev. 2027-2055 (2014) (tracing Court’s questioning of legislative records).
370. Gersen, Overlapping and Underlapping, Supra note 32, at 220 (“Although accountability and expertise are no longer sufficient to support Chevron deference, they remain relevant variables in the Step Zero inquiry if expertise or accountability would be reasons that Congress would prefer courts to defer to agencies.”)
371. Gluck & Bressman, Part I, Supra note 28, at 1006-1010.
372. King v. Burwell, 135 S. Ct. 2480, 2488-89 (2015) (applying major questions rule to hold Chevron deference not appropriate).
373. Elizabeth Garrett, Attention to Context in Statutory Interpretation: Applying the Lessons of Dynamic Statutory Interpretation to Omnibus Legislation, Issues in Legal Scholarship, Dec. 2002, at 1-15, http://www.degruyter.com/view/j/ils.2002.2.issue-2/ils.2002.2.2.1020/ils.2002.2.2.1020.xml?format=INT (on file with the Columbia Law Review).
374. See, e.g., Lockhart v. United States, 546 U.S. 142, 148 (2005) (Scalia, J., concurring) (referencing “background canons of interpretation of which Congress is presumptively aware”)
375. Stephen Breyer, Making Our Democracy Work: A Judge’s View 119 (2010) (describing Chevron as a background assumption Congress likely intends because it facilitates a “workable partnership” with courts)
376. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511-517 (“Congress now knows that the ambiguities it creates, whether intentionally or unintentionally, will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known.”).
377. Manning Supra note 318, at 1926.
378. Gluck & Bressman, Part I, Supra note 28, at 927-28, 931 figs.1, 2 & 3 (presenting findings).
379. Garrett, Purposes of Framework Legislation, Supra note 124, at 742 (“Frameworks often create expert staffs within Congress that produce and analyze relevant information for the entire body.”).
380. Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine, 120 Yale L.J. 1898-1901 (2010) [hereinafter Gluck, Intersystemic](arguing courts do not treat statutory interpretation as precedential “law”)
381. Gluck & Bressman, Part I, Supra note 28, at 962 (reporting drafters’ observations that Court does not treat interpretive rules as precedential).
382. Mashaw, Supra note 320, at 535 (contrasting “highly nuanced” agency interpretation of statutes with judicial reliance on pure textual analysis).
383. Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750-1799 (2010) [hereinafter Gluck, States as Laboratories] (detailing different interpretive principles utilized by state and federal courts).
384. Gluck, Intersystemic, Supra note 351, at 1960-1965 (detailing apparent federal-court ignorance of state methods).
385. United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). Mead thus accomplishes through incentivizing interpretive doctrine what the Court said in Vermont Yankee it could not require as a matter of court-made law. See Vt. Yankee Nuclear P wer Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 525 (1978) (holding federal courts exceeded authority by adding procedural requirements for agency statutory implementation beyond APA requirements)
386. Abbe R. Gluck, What 30 Years of Chevron Teach Us About the Rest of Statutory Interpretation, 83 Fordham L. Rev. 607-625 (2015) (calling Mead “an end run around Vermont Yankee”).
387. The Court, as Strauss has argued, has arguably done something similar when it comes to the APA, reading in more stringent requirements than the text of the statuteseemed to imply-an example of how even an old “orthodoxy” might be updated by legal doctrine. Peter L. Strauss, Statutes that Are Not Static—The Case of the APA, 14 J.Contemp. Legal Issues 767-797 (2005). Strauss prefers Congress to do the updating, and one question is whether courts should have a role to play when Congress cannot or chooses not to do so.
388. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.”).
389. Mora-Meraz v. Thomas, 601 F.3d 933, 940 (9th Cir. 2010) (examining whether interpretive rule as issued was consistent with existing regulatory framework).
390. Am. Bus. Ass’n v. United States, 627 F.2d 525, 529-30 (D.C. Cir. 1980) (discussing previous cases using both ex ante and ex post analysis of guidance).
391. Specifically, whether a court should look at the language of the policy that specifies that the agency retains discretion to prevent deportation or instead look at how many applications for relief are not granted. See Texas v. United States, No. B-14-254, 2015 WL 648579, at *54-55 (S.D. Tex. Feb. 16, 2015), stay denied, 2015 WL 1540022 (S.D. Tex. Apr. 7, 2015), aff’d 787 F.3d 733 (5th Cir. 2015).
392. Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1211-12 (2015) (Scalia, J., concurring in the judgment) (“By supplementing the APA with judge-made doctrines of deference, we have revolutionized the import of interpretive rules’ exemption from notice-andcomment rulemaking. Agencies may now use these rules not just to advise the public, but also to bind them.”). Justice Scalia first raised concerns about Auer deference in Talk America, Inc. v. Michigan. Bell Telephone Company., 131 S. Ct. 2254, 2266 (2011) (Scalia, J., concurring).
393. Under Mead, agency interpretations of ambiguous statutes, which do not go through notice and comment, often receive lesser Skidmore deference.
394. Ass’n of Flight Attendants v. Huerta, 785 F.3d 710, 712-14 (D.C. Cir. 2015); Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 253 (D.C. Cir. 2014). See generally Mark Seidenfeld, Substituting Substantive for Procedural Review of Guidance Documents, 90 Tex. L. Rev. 331-343 (2011) (“[P]olicy statements are generally not reviewable when issued.”).
395. Sunstein, Supra note 233, at 1860.
396. Marshall Field & Co. v. Clark, 143 U.S. 649, 672 (1892) (“[A]n enrolled act, thus authenticated, is sufficient evidence of itself . . . that it passed Congress.”).
397. Linde, Supra note 324, at 199.
398. Gluck, Imperfect Statutes, Supra note 5 (manuscript at 32-33).
399. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (requiring “unmistakably” clear statement of intent to abrogate sovereign immunity)
400. Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991) (same for displacement of traditional state functions).368. Boumediene v. Bush, 553 U.S. 723, 738 (2008).
401. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984).
402. Kagan, Supra note 173, at 2376.
403. MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 228-32 (1994).
404. See supra notes 341-343 and accompanying text (discussing doctrinal difficulty in accounting for state or private implementers of federal statutes).
405. Gluck, Our [National] Federalism, Supra note 275, at 2016-2037.
406. Gluck, Intrastatutory Federalism, Supra note 4, at 614-615 (highlighting “exceedingly blurry” jurisdictional boundaries)
407. O’Connell, Bureaucracy at the Boundary, Supra note 57, at 913-15 (listing major jurisdictional issues for boundary organizations).
408. Douglas v. Indep. Living Ctr. of S. Cal., Inc., 132 S. Ct. 1204, 1210-11 (2012) (refusing to recognize right of action for doctors wishing to sue California for Medicaid implementation).
409. Metzger, Privatization as Delegation, Supra note 57, at 1370.
410. O’Connell, Bureaucracy at the Boundary, Supra note 57, at 917 & n. 427 (citing Am. Trucking Ass’ns, Inc. v. Del. River Joint Toll Bridge Comm’n, 458 F.3d 291, 304 (3d Cir. 2006))(noting Third, Eighth, and D.C. Circuits have adopted this view); Heard Commc’ns, Inc. v. Bi-State Dev. Agency, 18 F. App’x 438, 439-40 (8th Cir. 2001); Elcon Enters., Inc. v. Wash. Metro. Area Transit Auth., 977 F.2d 1472, 1479-80 (D.C. Cir. 1992).
411. O’Connell, Bureaucracy at the Boundary, Supra note 57, at 917 & n. 429 (citing New York v. Atl. States Marine Fisheries Comm’n, 609 F.3d 524, 534 (2d Cir. 2010))(observing Second Circuit has rejected doctrine due to skepticism of “judge-created concept”).
412. Douglas, 132 S. Ct. at 1210-11 (omitting reference to any particular doctrines or modern practice as basis for decision).
413. Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 253 (D.C. Cir. 2014) (holding statements of policy unreviewable prior to enforcement).
414. FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 246 (1980) (“Because the Commission’s issuance of a complaint averring reason to believe that Socal has violated the Act is not ‘final agency action’ under § 10(c) of the APA, it is not judicially reviewable before administrative adjudication concludes.”).
415. Abbott Labs. v. Gardner, 387 U.S. 136, 148-50 (1967) (discussing ripeness as rationale for “prevent[ing] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies”). The Court has recently expressed some doubts about the “continued vitality” of the ripeness doctrine. Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014).
416. Romano, Iron Law, Supra note 24, at 31-40
417. Catherine M. Sharkey, State Farm ‘with Teeth’: Heightened Judicial Review in the Absence of Executive Oversight, 89 N.Y.U. L. Rev. 1589-1591 (2014) (“[J]udicial review of certain types of determinations by independent agencies should be more stringent because those determinations are not subject to executive oversight and are thus less likely to be premised on reasons backed byempirical support.”).
418. Mendelson A, Private Control, Supra note 148, at 747-48
419. Strauss, Private Standards, Supra note 62, at 507.
420. Newland, Supra note 281, at 2098-2099 (“[E]stablishing taxpayer standing to challenge activities conducted pursuant to an executive order may be even more challenging than establishing taxpayer standing to challenge statutory law.”)
421. Stack, Statutory President, Supra note 174, at 542-557 (arguing “there is no accepted framework for review of the president’s claims of statutory authority” but President should be “subject to administrative law on the same terms as agencies”).
422. Kevin M. Stack, The Statutory Fiction of Judicial Review of Administrative Action in the United States, in Effective Judicial Review: A Cornerstone of Good Governance 317-325 (Christopher Forsyth et al. eds., 2010) (noting common law doctrines remain to challenge presidential action but they are restricted to “existence of authority” and do not encompass “exercise of authority”).
423. Mendelson, Political Oversight, Supra note 54, at 1163-1165.
424. Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 Yale L.J. 2-83 (2009).
425. Lisa Heinzerling, Response, Classical Administrative Law in the Era of Presidential Administration, 92 Tex. L. Rev. See Also 171-179 (2013), http://www.texaslrev.com/wpcontent/ uploads/Heinzerling-92-SeeAlso.pdf [http://perma.cc/D3NQ-D2TC].
426. Farber & O’Connell, Supra note 29, at 1185.
427. See City of Arlington v. FCC, 133 S. Ct. 1863, 1883-84 (2013) (Roberts, C.J., dissenting) (“When presented with an agency’s interpretation of such a statute, a court cannot simply ask whether the statute is one that the agency administers; the question is whether authority over the particular ambiguity at issue has been delegated to the particular agency.”)
428. Gersen, Overlapping and Underlapping, Supra note 32, at 207-208 (referring to multiple delegation questions as “emerging doctrine known as Chevron Step Zero”).
429. Farber & O’Connell, Supra note 29, at 1156-1157 (“[A]dministrative law tells to osimple a story of congressional delegation of particular regulatory authority over nonfederal entities to a single agency.”).
430. SEC v. Chenery Corp., 318 U.S. 80, 93-94 (1943).
431. Kevin M. Stack, The Constitutional Foundation of Chenery, 116 Yale L.J. 952-996 (2007).
432. Free Enter. Fund v. Pub. Co. Accounting. Oversight Bd., 130 S. Ct. 3138, 3151 (2010).
433. Dep’t of Transp. v. Ass’n of Am. R.R.s, 135 S. Ct. 1225 (2015).
434. Peter L. Strauss, Recent Developments in Administrative Law: The Tremors of March 9, 2015, at 3 (2015) (unpublished manuscript) (on file with the Columbia Law Review).
435. For discussions of those matters, see generally William N. Eskridge & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083, 1090, 1098-120 (2008) (“[T]he Court’s deference practice functions along a continuum . . . .”)
436. Gluck, States as Laboratories, Supra note 353, at 1757 (“[P]ersistent interpretive divides and a refusal to treat methodological statements as precedential have made interpretive consensus [in the Supreme Court] seem impossible.”).
437. United States v. Mead Corp., 533 U.S. 218, 236 (2001).
438. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (“[T]he President alone has the power to speak or listen as a representative of the nation.”).
439. City of Arlington v. FCC, 133 S. Ct. 1863, 1869 (2013) (refusing to carve out another special exception to Chevron deference for jurisdictional questions)
440. Mayo Found. for Med. Educ. & Research v. United States, 131 S Ct. 704, 714 (2011) (holding Chevron, not special tax deference rule, applies in tax cases as well).
441. See supra section IV.A (discussing current failure of courts to adjust Mead’s realism to unorthodox delegations).
442. Abbe R. Gluck, The Federal Common Law of Statutory Interpretation: Erie for the Age of Statutes, 54 Wm. & Mary L. Rev. 753 (2013) [hereinafter Gluck, Federal Common Law] (detailing judicial resistance to treating interpretive doctrine as real common law).
443. Jody Freeman & David B. Spence, Old Statutes, New Problems, 163 U. Pa. L. Rev. 1, 76 (2014) (“[I]t may be more ‘democratic’ to defer during fallow legislative periods to the agencies . . . .”).
444. Gluck, Federal Common Law, Supra note 408, at 801.