Agencies, polarization, and the states

Columbia Law Review

Volumn 115, Issue 7, 2015, Pages 1739-1788

  Metzger, Gillian E ^a  

^a NONE

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EID: 84949213741     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (226)

1. Cynthia R. Farina, Congressional Polarization: Terminal Constitutional Dysfunction?, 115 Colum. L. Rev. 1689 (2015).
2. For a discussion of recent administrative law scholarship that has begun to explore the role of agencies in today’s polarized politics, see Infra text accompanying notes 88-93.
3. Nolan McCarty, Keith T. Poole & Howard Rosenthal, Polarized America: The Dance of Ideology and Unequal Riches 3 (2006) (documenting increased polarization and its relationship to national trends, in particular growing income disparity)
4. Sarah Binder, The Dysfunctional Congress, 18 Ann. Rev. Pol. Sci. 85-96 (2015) [hereinafter Binder, Dysfunctional Congress] (analyzing polarization’s impact on Congress and President)
5. Gary C. Jacobson, Partisan Polarization in American Politics: A Background Paper, 43 Presidential Stud. Q. 688-700 (2013) (examining how changes in voters have affected congressional parties)
6. Nathaniel Persily, Introduction, in Solutions to Political Polarization in America 3, 10, 13 (Nathaniel Persily ed., 2015) (suggesting reforms to voting, political parties, and congressional rules to address growing polarization). For a rare exception that focuses on the policy implications of polarization
7. Nolan McCarty, The Policy Effects of Political Polarization, in Transformation of American Politics: Activist Government and the Rise of Conservatism 223-246 (Paul Pierson & Theda Skocpol eds., 2007) [hereinafter McCarty, Policy Effects] (arguing polarization moves policymaking to courts and states).
8. See infra note 50 and accompanying text.
9. See infra notes 45-48, 55 and accompanying text.
10. See infra note 52 and accompanying text.
11. Kenneth S. Lowande & Sidney M. Milkis, “We Can’t Wait”: Barack Obama, Partisan Polarization and the Administrative Presidency, 12 Forum 3, 5 (2014) (describing recent trend of Presidents using administrative power to serve partisan goals).
12. Matthew Daly, GOP Lawmaker Targets Climate Plan, Wash. Times (Mar. 23, 2015), http://www.washingtontimes.com/news/2015/mar/23/gop-lawmaker-targets-obama-climate-plan/?page=all [http://perma.cc/PG7D-KR2A] (describing EPA’s proposed rules as “President Barack Obama’s strategy”).
13. Max Ehrenfreund, Your Complete Guide to Obama’s Immigration Executive Action, Wash. Post: Wonkblog (Nov. 20, 2014), http://www.washingtonpost.com/blogs/wonkblog/wp/2014/11/19/your-complete-guide-to-obamas-immigration-order/ [http://perma.cc /QGC7-UJPH]; Fixing the System: President Obama is Taking Action on Immigration, White House, https://www.whitehouse.gov/issues/immigration/immigration-action [https://perma.cc/BZ2X-HF4S] (last visited Aug. 13, 2015)
14. Memorandum from Jeh Charles Johnson, Sec’y, Dep’t of Homeland Sec., on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants to Thomas S. Winkowski, Acting Dir., U.S. Immigration & Customs Enf’t et al.(Nov, 20, 2014), http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf [http://perma.cc/FUT5-F3NM] (outlining new immigration enforcement policies).
15. Farina, Supra note 1, at 1702-1703 (describing earlier period of significant polarization in Congress)
16. Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. 1189-1195 (1986) (describing chronological development of national regulatory state).
17. Lowande & Milkis, Supra note 8, at 3-14 (arguing Obama Administration has expanded presidential administration and embraced unilateralism for partisan ends).
18. Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98 Marq. L. Rev. 881-889 (2014) (linking government oversight and investigation with partisan disputes).
19. Peter L. Strauss, Foreword: Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696 (2007).
20. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573-596 (1984) [hereinafter Strauss, Place of Agencies] (describing complex relationships between President and agencies and factors enhancing as well as limiting presidential influence).
21. Brigham Daniels, Agency as Principal, 48 Ga. L. Rev. 335-343 (2014) (recognizing circumstances when agencies act as principals capable of “turn[ing] the tables” on political branches)
22. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2272-74, 2306-09 (2001) (describing expanding presidential oversight and limits to close presidential control of agencies under President Clinton)
23. Gillian E. Metzger, The Interdependent Relationship Between Internal and External Separation of Powers, 59 Emory L.J. 423, 429-32, 432-37 (2009) (describing internal checks on presidential power and interaction between agencies and external institutions).
24. Jody Freeman & David B. Spence, Old Statutes, New Problems, 163 U. Pa. L. Rev. 1-3 (2014) (“[F]ederal agencies coping with new regulatory challenges often encounter problems of ‘fit’ with older statutes....”).
25. Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862-1928, at 23-33 (2001) (describing role of professional networks, reputation, and agency culture in agencies)
26. Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 786-812 (2013) (describing different structural features among independent agencies as well as between independent and executive agencies).
27. Elizabeth Magill & Adrian Vermeule, Allocating Power Within Agencies, 120 Yale L.J. 1032, 1036-38 (2011) (concluding “views and actions of different types of stakeholders shape the agency’s performance of its duties”)
28. Jon D. Michaels, An Enduring, Evolving Separation of Powers, 115 Colum. L. Rev. 515, 538-47 (2015) (describing differences between agency leadership and civil service personnel).
29. Eskridge & Ferejohn, Supra note 25, at 536-538 (“[T]he agency can (perhaps over time) set policy virtually anywhere it wants, unless Congress would be stimulated to override the agency’s choice by enacting new legislation.”).
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, 440-41 (1989) [hereinafter McNollgast]
31. Lisa Schulz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749, 1767-71 (2007) (describing positive political theory argument).
32. Terry M. Moe, An Assessment of the Positive Theory of ‘Congressional Dominance,’ 12 Legis. Stud. Q. 475, 489-90 (1987) [hereinafter Moe, Assessment of Positive Theory] (criticizing congressional dominance approach for, inter alia, not accounting for presidential control of administration through appointments)
33. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. 132, 137-38, 141-48 (1999) (arguing Presidents’ ability to act unilaterally and exploit ambiguities in scope of control over executive branch gives them powerful advantages over Congress)
34. Keith E. Whittington & Daniel P. Carpenter, Executive Power in American Institutional Development, 1 Persp. on Pol. 495, 496-99 (2003) (critiquing congressional dominance view and arguing for more dynamic approach viewing congressional and executive power as interactive).
35. Louis L. Jaffe, Judicial Control of Administrative Action 320 (1965) (“The availability of judicial review is the necessary condition, psychologically if not logically, of a system of administrative power which purports to be legitimate, or legally valid.”).
36. Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667-1670 (1975) (“Increasingly, the function of administrative law is not the protection of private autonomy but the provision of a surrogate political process to ensure the fair representation of a wide range of affected interests in the process of administrative decision.”).
37. Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131-1145 (2012) (detailing phenomenon of multiple agency delegations and resultant interagency coordination and consultation requirements)
38. Thomas E. Mann & Norman J. Ornstein, The Broken Branch: How Congress Is Failing America and How to Get it Back on Track 10 (2006).
39. See Freeman and Spence, Supra note 17, at 83-84 (concluding under a gridlock model, “[a]s members of the legislature become more ideologically polarized, the status quo policy can persist even as the median voter’s preferences stray farther and farther from that status quo”)
40. Keith Krehbiel, Pivotal Politics: A Theory of U.S. Lawmaking 47 48, 238 (1998) (positing “[p]olicy change requires that the status quo must lie outside the gridlock interval, as defined by the president, filibuster, and [presidential] veto pivots”).
41. Jason A. MacDonald, Limitation Riders and Congressional Influence over Bureaucratic Policy Decisions, 104 Am. Pol. Sci. Rev. 766-767 (2010).
42. Richard J. Lazarus, Congressional Descent: The Demise of Deliberative Democracy in Environmental Law, 94 Geo. L.J. 619, 635-36 (2006) (noting great political pressure to pass annual appropriations legislation due to threat of government shutdown)
43. MacDonald, Supra note 45, at 767 (“[T]hat appropriations must pass implies that the ability of the president to remove provisions to which he objects through veto bargaining... is more limited than is the case with ‘normal’... legislation.”). Under the Constitution, “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. If Congress fails to pass a measure authorizing funding, the federal government lacks power to spend funds and must shut down. MacDonald, supra note 45, at 767. Congress does appropriations on an annual basis, with the result that “[t]here is enormous political pressure to pass annual appropriations legislation.”
44. Lauren French, Jake Sherman & John Bresnahan, John Boehner Ends Stalemate, Politico (Mar. 3, 2015), http://www.politico.com/story/2015/03/dhs-funding-bill-house-vote-115693.html [http://perma.cc/A984-S6T3] (describing Republican leadership’s decision to end effort to overturn immigration policies through appropriations limits).
45. Nolan McCarty, The Decline of Regular Order in Appropriations: Does It Matter? 1-12 (Feb. 3, 2015) (unpublished manuscript), https://bfi.uchicago.edu/sites/default/files/research/McCarty_Appropriations.pdf [https://perma.cc/S4W5-XEZY].
46. Note, Independence, Congressional Weakness, and the Importance of Appointment: The Impact of Combining Budgetary Autonomy with Removal Protection, 125 Harv. L. Rev. 1822-1827 (2012) (noting agencies may respond to signals and threats about budgets “even where congressional action appears absent”)
47. Jack M. Beermann, Congressional Administration, 43 San Diego L. Rev. 61-139 (2006) (discussing informal measures, including budgetary measures, members of Congress may take to affect agency decisionmaking).
48. Neal Devins & David E. Lewis, Not-So Independent Agencies: Party Polarization and the Limits of Institutional Design, 88 B.U. L. Rev. 459, 461, 485-88 (2008) (detailing Senate’s increasing reliance on strategy of inaction on nominees, or “holds,” as response to polarization)
49. 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, 1659-81 (2015) [hereinafter O’Connell, Shortening Vacancies] (providing evidence on increasing nomination and appointment delays from 1981 to 2014). A prominent recent example is the 166-day delay for Loretta Lynch to be confirmed as Attorney General in April 2015, the third longest delay to confirm an Attorney General in history.
50. Jennifer Steinhauer, Senate Confirms Loretta Lynch as Attorney General After Long Delay, N.Y. Times (Apr. 23, 2015), http://www.nytimes.com/2015/04/24/us/politics/loretta-lynch-attorney-general-vote.html (on file with the Columbia Law Review).
51. O’Connell, Shortening Vacancies, supra note 50, at 1676-81 (presenting data on lack of improvement in agency appointment delays after filibuster reform in November 2013).
52. Douglas Kriner & Liam Schwartz, Divided Government and Congressional Investigations, 33 Legis. Stud. Q. 295-297 (2008) (providing empirical evidence on increasing use of congressional investigations during divided government)
53. David C.W. Parker & Matthew Dull, The Weaponization of Congressional Oversight: The Politics of the Watchful Eye, 1947-2010, in Politics to the Extreme: American Political Institutions in the Twenty-First Century 47, 52-54, 56-63 (Scott A. Frisch & Sean Q. Kelly eds., 2013) (describing correlation between “divided government and the willingness... to charge and investigate the executive branch with malfeasance”).
54. Noah Bierman, California’s Darrell Issa Loses Power Along with House Oversight Committee Post, L.A. Times (Mar. 20, 2015), http://www.latimes.com/nation/politics/la-na-darrell-issa-20150321-story.html#page=1 [http://perma.cc/8C2X-M6JQ] (discussing Representative Issa’s investigations of White House and President Obama).
55. Joshua C. Huder & Marian Currinder, Polarization, Budget Failures, and What to Expect Beyond 2014, 43 Pub. Manager 11, 12-13 (2014)
56. Sophie Novack & Clara Ritger, Shutdown Threat Has Federal Agencies in Scramble Mode, Nat’ J. (Sept. 24, 2013), http://www.nationaljournal.com/daily/shutdown-threat-has-federal-agencies-in-scramble-mode-20130924 [http://perma.cc/Q9JW-NKZJ] (detailing agency contingency plans in preparation for government shutdown).
57. Anne Joseph O’Connell, Vacant Offices: Delays in Staffing Top Agency Positions, 82 S. Calif. L. Rev. 913-939 (2009) [hereinafter O’Connell, Vacant Offices] (determining frequent vacancies harm agency performance and lead to agency inaction).
58. Douglas Kriner, Can Enhanced Oversight Repair “The Broken Branch”?, 89 B.U. L. Rev. 765, 774, 784-87 (2009) (arguing oversight can lead to public pressure on agencies and anticipation of oversight can dissuade agency action).
59. Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L. Rev. 15, 42-45 (2010) (tracing connection between political pressure on agencies and agency’s funding source)
60. Nina A. Mendelson, The Uncertain Effects of Senate Confirmation Delays in the Agencies, 64 Duke L.J. 1571, 1585-97 (2015) (arguing staffing delays potentially can have beneficial effects on agency performance)
61. Moe, Assessment of Positive Theory, Supra note 30, at 480-486 (expressing skepticism about impact of congressional oversight on agencies).
62. Matthew J. Dickinson, The Executive Office of the President: The Paradox of Politicization, in The Executive Branch 135, 152-54 (Joel D. Aberbach & Mark A. Peterson eds., 2005) (tracing increasing role of White House aides in policy development and suggesting an aide under President George W. Bush was given “preeminent role in the formulation of homeland security policy”)
63. Moe & Howell, Supra note 30, at 136-138 (noting trend in legacy-conscious Presidents exploiting constitutional ambiguity of agencies to accomplish agendas)
64. Charles M. Cameron, Studying the Polarized Presidency, 32 Presidential Stud. Q. 647, 647-648 (2002) (arguing polarization has “pervasive” impact on presidency).
65. Lowande & Milkis, Supra note 8, at 3-4 (describing “We Can’t Wait” campaign)
66. Lowande & Milkis, Supra note 8, at 22-23 (explaining, regardless of disagreement with Obama’s executive actions, Congress was too politically divided to overturn them)
67. Moe & Howell, Supra note 30, at 133-138 (arguing presidential power expands because members of Congress focus on individual constituencies at expense of defending legislative power).
68. Lowande & Milkis, Supra note 8, at 5 (emphasizing growth of presidential exploitation of administrative control for partisan gain)
69. Abbe R. Gluck, Anne Joseph O’Connell & Rosa Po, Unorthodox Lawmaking, Unorthodox Rulemaking 115 Colum. L. Rev. 1789-1845 (2015) (“It is the White House, often through OIRA, that now may direct the rulemaking process, instead of the agency....”).
70. Dino P. Christenson & Douglas L. Kriner, Political Constraints on Unilateral Executive Action, 65 Case W. Res. L. Rev. 897-912 (2015) (arguing informal political constraints on presidential unilateralism more robust than generally acknowledged).
71. Exec. Order No. 12,866, 3 C.F.R. 638, 644-48 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 802, 804-06 (2012) (outlining OIRA oversight of agency regulatory decisions); see also Exec. Order No. 13,563, 3 C.F.R. 215, 215 (2012), reprinted as amended in 5 U.S.C. § 601 app. at 816, 816 (retaining Exec. Order 12,866 regulatory review framework).
72. 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. 325-341 (2014) (detailing OIRA’s control under Bush II and Obama Administrations)
73. Watts, Supra note 60 (manuscript at 15-19, 21-23) (chronicling strong presidential control of agencies during Bush II and Obama Administrations). For an argument by a former head of OIRA that OIRA review under the Obama Administration has focused on coordination rather than preventing rules from going forward
74. Cass R. Sunstein, The Office of Information and Regulatory Affairs: Myths and Realities, 126 Harv. L. Rev. 1838-1840 (2013).
75. Watts, Supra note 60 (manuscript at 23-28) (describing President Obama’s use of online videos, social media, and written memoranda posted online and in Federal Register)
76. Kagan, Supra note 16, at 2281-319 (describing President Clinton’s use of directives)
77. Jenny Hopkinson, Barack Obama’s Water War, Politico (May 27, 2015, 10:41 AM), http://www.politico.com/story/2015/05/epa-waterways-wetlands-rule-118319.html [http://perma.cc/Y8VK-JGKF] (noting President Obama’s quick endorsement of proposed rule on regu¬lating national waterways).
78. Moe, Politicized Presidency, Supra note 62, at 244-245.
79. David J. Barron, Foreword: From Takeover to Merger: Reforming Administrative Law in an Age of Agency Politicization, 76 Geo. Wash. L. Rev. 1095-1128 (2008) (detailing increased agency politicization)
80. David E. Lewis, The Politics of Presidential Appointments: Political Control and Bureaucratic Performance 137-204 (2008) (describing methods of politicization and arguing politicization follows certain predictable patterns, varying across agencies and over time, but also noting increase in politicization under both Bush Administrations compared to Clinton Administration).
81. Michael Livermore, Political Parties and Presidential Oversight, 67 Ala. L. Rev. (forthcoming 2015) (manuscript at 5, 22-23) (on file with the Columbia Law Review).
82. Lewis, Supra note 72, at 149-153 (explaining politicization and tension between appointees and careerists caused performance decline in Federal Emergency Management Agency)
83. Barron, Supra note 72, at 1124-1130 (discussing career-political clashes)
84. Exec. Order No. 12,866, 3 C.F.R. 638, 644-45 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 802, 803 (2012) (excluding independent agencies and limiting OIRA review to significant rulemaking actions).
85. Watts, Supra note 60 (manuscript at 43-47) (describing President Obama’s efforts to support net neutrality and acknowledgment that “[t]he FCC is an independent agency, and ultimately [the] decision is theirs alone” (internal quotation marks omitted))
86. Gautham Nagesh & Brody Mullins, Net Neutrality: How White House Thwarted FCC Chief, Wall St. J. (Feb. 4, 2015), http://www.wsj.com/articles/how-white-house-thwarted-fcc-chief-on-internet-rules-1423097522 (on file with the Columbia Law Review) (describing internal White House meetings and effort to push net neutrality).
87. Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 Mich. L. Rev. 47-70 (2006) (“Nor do advocates of presidential control claim that it reaches every agency action or even every important agency action.”)
88. Jennifer Nou, Agency Self-Insulation Under Presidential Review, 126 Harv. L. Rev. 1755-1790 (2013) (“[H]igher-cost or -benefit rules are more likely to be politically salient... [and] are thus among those rules most likely to gain the President’s attention.”)
89. Frank J. Thompson & Michael K. Gusmano, The Administrative Presidency and Fractious Federalism: The Case of Obamacare, 44 Publius 426-429 (2014) (describing White House involvement in ACA implementation as reflecting ACA’s high political salience).
90. David Johnson & Scott Shane, Notes Detail Pressure on Ashcroft over Spying, N.Y. Times (Aug. 17, 2007), http://www.nytimes.com/2007/08/17/washington/17inquire.html (on file with the Columbia Law Review) (describing role of top Department of Justice officials in resisting White House effort to obtain authorization for warrantless surveillance).
91. Andrew Rudalevige, The Contemporary Presidency: Executive Orders and Presidential Unilateralism, 42 Presidential Stud. Q. 138-144, 153-54 (2012) (reporting departments are major source of executive orders and describing role of EPA in formulation of Clinton executive order on children’s environmental health)
92. Daniels, Supra note 16, at 384-411 (providing historical examples of strategic action by agencies to push policy with President and Congress).
93. Freeman & Spence, Supra note 17, at 66-67 (“Where the President’s objectives and the agency’s mission are in conflict... the result can be turmoil and struggle.”).
94. Bressman & Vandenbergh, Supra note 78, at 70 (finding “presidential control, as structured, is selective in its focus” and “[t]he president simply has too many responsibilities, and OIRA and the other White House offices have too few resources, to reach even every major agency decision”)
95. Lewis, Supra note 72, at 57-61 (“In other cases, presidents have no foothold or means of easy entrée and, as a consequence, agencies have very little interaction with or direction from the White House.”).
96. Freeman & Spence, Supra note 17, at 75-76 (urging judicial deference to agency efforts to fit existing statutes to new problems when Congress is unable to act)
97. Lisa Heinzerling, The FDA’s Plan B Fiasco: Lessons for Administrative Law, 102 Geo. L.J. 927-958 (2014) [hereinafter Heinzerling, Plan B Fiasco] (describing courts’ willingness to deviate from ordinary administrative law review in response to evidence of political involvement in Food and Drug Administration’s (FDA) decision on whether to allow Plan B to be available over the counter (OTC)).
98. Michigan v. EPA, 135 S. Ct. 2699, 2712 (2015) (rejecting as unreasonable agency’s reading of statute to preclude consideration of costs in initial decision whether to regulate).
99. Freeman & Spence, Supra note 17, at 79-81 (“[W]hile Congress absents itself from policymaking, the need to make policy choices continues.”).
100. Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2445-47 (2014) (“The power of executing the laws... does not include a power to revise clear statutory terms that turn out not to work in practice.”).
101. Jeffrey Toobin, The Obama Brief, New Yorker, Oct. 27, 2014, at 24-28 (describing judicial appointment battles leading to filibuster reform and effect on D.C. Circuit).
102. Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. Chi L. Rev. 823-826 (2006) (reporting ideological leaning significantly affects likelihood judge will vote to affirm or overturn agency’s action)
103. Thomas J. Miles & Cass R. Sunstein, The Real World of Arbitrariness Review, 75 U. Chi. L. Rev. 761-769 (2008) (reporting Democratic appointees validate liberal agency actions seventy-two percent of the time compared to fifty-five percent for Republican appointees, with validation rates flipping when agency action is conservative).
104. United States v. Windsor, 133 S. Ct. 2675, 2684, 2687-88 (2013) (discussing role of House Bipartisan Legal Advisory Group in litigation over consti-nationality of Defense of Marriage Act); Complaint at ff 42-50, U.S. House of Representatives v. Burwell, No. 14-cv-01967 (D.D.C. Nov. 21, 2014), 2014 WL 6492097 (challenging delay of ACA employer mandate)
105. Neal Devins, Measuring Party Polarization in Congress: Lessons from Congressional Participation as Amicus Curiae, 65 Case W. Res. L. Rev. 933-934 (2015) (documenting increase in partisan briefs and decline in bipartisan filings correlated to growing polarization).
106. Freeman & Spence, Supra note 17, at 68 (“It is not hard to imagine then that agencies sometimes pare back or abandon initial proposals deemed too risky.”)
107. Rebecca Ingber, Interpretation Catalysts and Executive Branch Legal Decisionmaking, 38 Yale J. Int’l L. 359-414 (2013) (arguing executive constrained by “nature of the events themselves that drive that decisionmaking, and the interplay between those events and the organic reality of internal executive process”). One example of the influence of reputational concerns comes from the efforts to limit the morning-after pill’s availability OTC. The refusal of the FDA to grant the OTC application under the Bush II Administration prompted resignations and complaints from senior scientists connected to the agency. When the Obama Administration then chose to continue OTC limits, FDA Commissioner Margaret Hamburg issued a statement making clear that she and the FDA scientists determined Plan B should be freely available but had been overruled by HHS Secretary Kathleen Sebelius.
108. Heinzerling, Plan B Fiasco, Supra note 98, at 942-946 (recounting agency controversy surrounding Plan B’s OTC availability).
109. Freeman & Spence, Supra note 17, at 68 (describing how “agencies take pains to develop their legal strategies to ensure they are… likely to withstand attack”).
110. Eric Biber, Too Many Things to Do: How to Deal with the Dysfunctions of Multiple-Goal Agencies, 33 Harv. Envtl. L. Rev. 41-59 (2009) (analyzing different types of interagency relationships and their impact on agency’s actions)
111. Anne Joseph O’Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, 94 Calif. L. Rev. 1655-1684 (2006) (describing how redundancy can check agency excesses).
112. Renan, Supra note 90, at 212-217 (describing ways in which agency coordination and pooling of powers enhances executive branch authority). Compare Freeman & Rossi, supra note 34, at 1201 (“By seizing control of the interagency process, the President and his staff can play the role of negotiator in chief, helping to broker outcomes that more closely align with his preferences than would the results of an unmediated process.”), and Marisam, supra note 34, at 231-36 (“[D]uplicative delegations alter the balance of powers by affording the Executive significantly more discretion than it usually has to determine which agency performs a task.”), with 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).
113. Daniel A. Farber & Anne J. O’Connell, The Lost World of Administrative Law, 92 Tex. L. Rev. 1137-1157 (2014) (describing increase in multi-agency delegations)
114. Farhang & Miranda Yaver, Divided Government and the Fragmentation of American Law, Am. J. Pol. Sci. (forthcoming 2015) (on file with the Columbia Law Review) (providing evidence of increased congressional dispersion of administrative authority during divided government)
115. David Epstein & Sharyn O’Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making Under Separate Powers 232-39 (1999) (documenting Congress’s use of more limited delegations under divided government).
116. Ronald J. Krotoszynski,. et al., Partisan Balance Requirements in the Age of New Formalism, 90 Notre Dame L. Rev. 941-982 (2015) (tracing history of statutory partisan balance requirements at independent agencies).
117. Devins & Lewis, Supra note 50, at 461-493 (detailing increase in partisanship at independent agencies)
118. Andrew Ackerman & Aruna Viswanatha, SEC Bickering Stalls Mary Jo White’s Agenda, Wall St. J. (June 3, 2015), http://www.wsj.com/articles/sec-bickering-derails-whites-agenda-1433374702 (on file with the Columbia Law Review) (chronicling partisanship dividing SEC)
119. Eric Lichtblau, FEC Can’t Curb 2016 Election Abuse, Commission Chief Says, N.Y. Times (May 2, 2015), http://www.nytimes.com/2015/05/03/us/politics/fec-cant-curb-2016-election-abuse-commission-chief-says.html (on file with the Columbia Law Review) (describing partisan gridlock at FEC)
120. Floyd Norris, Independent Agencies, Sometimes in Name Only, N.Y. Times (Aug. 8, 2013), http://www.nytimes.com/2013/08/09/business/independent-agencies-sometimes-in-name-only.html (on file with the Columbia Law Review) (tracking increasing influence of partisanship in Congress in selecting SEC commissioners).
121. Ann M. Ravel & Ellen L. Weintraub, Petition for Rulemaking 1 (June 8, 2015), http://www.fec.gov/members/statements/Petition_for_Rulemaking.pdf [http://perma .cc/7BUKJH2M] (requesting FEC issue new rules and amend old rules to comply with Citizens United ruling).
122. Crane v. Johnson, 783 F.3d 244, 253-55 (5th Cir. 2015) (dismissing lawsuit brought by Immigration and Customs Enforcement agents challenging new immigration initiatives).
123. Livermore, Supra note 73 (manuscript at 29-33)
124. Barron, Supra note 72, at 1128-1133 (“[L]ayering of political appointments … does help to check the resistance that might come from within the bureaucracy.”).
125. Moe & Howell, Supra note 30, at 145
126. Whittington & Carpenter, Supra note 30, at 501 (“[T]he executive … can play an important role in structuring legislative preferences and their articulation.”).
127. Although in theory Presidents might be more willing to accept and not veto legislation seeking to overturn agency action that was not presidentially initiated, in practice presidential vetoes seem a likely result. Not only do most significant agency regulatory actions emerge with presidential sanction given centralized review, but in a world of polarized politics and divided government, a Congress’s success in overturning agency action taken during the current administration will likely be viewed as a presidential political loss. See Moe, Politicized Presidency, Supra note 62, at 236-246 (describing popular assignment of responsibility to Presidents for administrative action).
128. Nick Timiraos, House Republicans Vow to Continue Battle Against Immigration Measures, Wall St. J. (Mar. 1, 2015, 2:23 PM), http://www.wsj.com/articles/house-republicans-vow-to-continue-battle-against-immigration-measures-1425237786 (on file with the Columbia Law Review) (noting continued House Republican opposition to Obama Administration’s executive actions on immigration despite legislative failure to bar actions through funding constraints).
129. Brett Logiurato, Mitt Romney: ‘I Will Repeal Obamacare’, Bus. Insider (June 28, 2012, 12:01 PM), http://www.businessinsider.com/mitt-romney-reaction-to-supreme-court-decision-i-will-repeal-obamacare-2012-6 [http://perma.cc/FG56-V9U2] (discussing Romney’s campaign promise to repeal ACA).
130. William N. Eskridge Jr. & John Ferejohn, A Republic of Statutes: The New American Constitution 26-27 (2010) (discussing agencies’ role in policy entrenchment).
131. Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1206 (2015) (“[Section] 1 of the APA [mandates] that agencies use the same procedures when they amend … a rule as they used to issue the rule in the first instance.”); see also Nina A. Mendelson, Agency Burrowing: Entrenching Policies and Personnel Before a New President Arrives, 78 N.Y.U. L. Rev. 557, 560-65 (2003) (discussing ways agencies entrench policies in anticipation of post-election transitions).
132. Sunstein, Partyism, Supra note 97 (manuscript at 16). Obviously, the effectiveness of this mechanism for overcoming partisanship turns on the debatable premise that partisan disagreements center on facts rather than ideology. But even so, the knowledgegenerating aspect of agency action represents another means by which agency policy development alters the status quo.
133. Daniels, Supra note 16, at 370-77 (describing how agency action can create new political pressures on Congress).
134. Whittington & Carpenter, Supra note 30, at 501.
135. Steven Mufson & Tom Hamburger, A Battle is Looming over Renewable Energy, and Fossil Fuel Interests Are Losing, Wash. Post (Apr. 25, 2014), http://www.washingtonpost.com/business/economy/a-battle-is-looming-over-renewable-energy-and-fossil-fuel-interests-are-losing/2014/04/25/24ed78e2-cb23-11e3-a75e-463587891b57_story.html [http://perma .cc/5P66-DSN3] (explaining renewable energy companies that invested capital to meet new EPA standards are fighting against repeal)
136. About the Alliance, Auto Alliance, http://www.autoalliance.org/about-the-alliance/principles [http://perma.cc/5LGV-DZDU] (last visited Aug. 14, 2015) (arguing stability is best for automobile industry and “ever-changing standards from multiple government bodies” should be avoided). A similar dynamic exists with respect to healthcare reform.
137. Paul Waldman, Sorry, Republicans: Obamacare Is Getting More and More Entrenched, Wash. Post (May 21, 2015), http://www.washingtonpost.com/blogs/plum-line/wp/2015/05/21/sorry-republicans-obamacare-is-getting-more-and-more-entrenched/ [http://perma.cc/E6JQ-RCJA] (arguing Republicans will face political pressure and backlash if they take away many popular features and benefits of ACA).
138. Eric Patashnik & Julian Zelizer, Five Myths About the Future of Obamacare, Wash. Post: Monkey Cage (Dec. 16, 2013), http://www.washingtonpost.com/blogs/monkey-cage/wp/2013/12/16/five-myths-about-the-future-of-obamacare/ [http://perma.cc/NJ4K-Q5V7] (cautioning against making any predictions about future of Obamacare).
139. Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law Redux, 125 Yale L.J. (forthcoming 2015) (manuscript at 9-10 & n.22) (on file with the Columbia Law Review) (hypothesizing Obama immigration measures may encounter entrenchment similar to supposedly temporary measures from Immigration and Nationality Act of 1952)
140. Bianca M. Figueroa-Santana, Note, Divided We Stand: Constitutionalizing Executive Immigration Reform Through Subfederal Regulation, 115 Colum. L. Rev. (forthcoming Dec. 2015) (manuscript at 5, 25-27, 35-37) (on file with the Columbia Law Review) (positing Obama’s immigration reform could become entrenched at subfederal level through state support and mobilization).
141. John D. Skrentny & Micah Gell-Redman, Comprehensive Immigration Reform and the Dynamics of Statutory Entrenchment, 120 Yale L.J. Forum 325 (2011), http://www.yalelawjournal.org/forum/comprehensive-immigration-reform-and-the-dynamics-of-statutory-entrenchment [http://perma.cc/E8BP-74SF] (arguing past instances of legalization of unauthorized immigrants have not led to entrenchment of practice).
142. McNollgast, Supra note 29, at 463-466 (arguing Congress responds to lobbying by regulated interests in deciding whether to intervene in agency action).
143. Whittington & Carpenter, Supra note 30, at 502.
144. Jessica Bulman-Pozen & Gillian E. Metzger, Obama and the States: Presidential Unilateralism or Presidential Federalism?, 45-53 Publius (forthcoming 2016) (manuscript at 6-17) (on file with the Columbia Law Review) (discussing central contemporary importance of presidential-state engagement and administrative tools used to facilitate state participation in federal initiatives or allow the executive branch to take advantage of state initiatives).
145. Heather K. Gerken, Federalism and Nationalism: Time for a Détente?, 59 St. Louis U. L.J. (forthcoming 2015) (manuscript at 13) (on file with the Columbia Law Review) Philip J. Weiser, Towards a Constitutional Architecture for Cooperative Federalism, 79 N.C. L. Rev. 663, 665, 668-73 (2001) (emphasizing political reality of cooperative federalism or joint federal-state implementation).
146. Gillian E. Metzger, The Constitutional Duty to Supervise, 124 Yale L.J. 1836-1855 (2015) (describing this delegation dynamic).
147. Printz v. United States, 521 U.S. 898, 927-32 (1997) (holding federal government may not compel state executive officials to implement federal regulatory programs); New York v. United States, 505 U.S. 144, 177-83 (1992) (holding federal government cannot force state to legislate pursuant to congressional direction).
148. New York v. United States, 505 U.S. at 165-68 (identifying conditional spending and conditional preemption as “methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program”)
149. Erin Ryan, Federalism and the Tug of War Within 326-33 (2012) (describing incentives federal government uses to convince states to participate in federal regulatory programs).
150. Jessica Bulman-Pozen, Federalism as a Safeguard of Separation of Powers, 112 Colum. L. Rev. 459-488 (2012) [hereinafter Bulman-Pozen, Federalism as Safeguard].
151. Roderick M. Hills,., Federalism in Constitutional Context, 22 Harv. J.L. & Pub. Pol’y 181-190 (1998) (“Congress can exploit competition between federal agencies and non-federal governments to insure that neither betrays the purposes of federal law.”)
152. David S. Rubenstein, Administrative Federalism as Separation of Powers, 72 Wash. & Lee L. Rev. 171-178 (2015) (urging greater attention to relationship between administrative actions affecting federal-state balance and separation of powers).
153. Jessica Bulman-Pozen, From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism, 123 Yale L.J. 1920-1939 (2014) [hereinafter Bulman-Pozen, Administration and Politics] (arguing states serve as checks on executive branch).
154. Barron & Rakoff, Supra note 88, at 267-290 (describing increased use of waivers and coining “big waiver” term to describe instances in which agencies have broad, discretionary power to dispense with rules Congress has established in statutes).
155. Obama to Push Minimum Wage Increase Wednesday at Governors’ Conference, N.Y. Daily News (Mar. 2, 2014), http://www.nydailynews.com/news/politics/obama-push-minimum-wage-wednesday-governors-conference-article-1.1708078 [http://perma.cc/QYE7-GPWX] (describing Democratic governors’ actions). Another recent example involves greenhouse gas regulation: At the Obama Administration’s urging, California ceded its effort to limit new automobile emissions as part of a negotiated agreement under which the auto industry agreed to fuel emission standards set by the EPA.
156. Jody Freeman, The Obama Administration’s National Auto Policy: Lessons from the “Car Deal,” 35 Harv. Envtl. L. Rev. 343, 345-46, 358-66 (2011)
157. Thompson & Gusmano, Supra note 79, at 431 (describing Obama Administration’s strategy of using hospital lobby to pressure governors to expand Medicaid)
158. Margaret Newkirk, Obama’s Emission Plan Splits Coal Lobby from Utilities in States, Bloomberg (Apr. 16, 2015, 5:00 AM), http://www.bloomberg.com/politics/articles/2015-04-16/obama-s-emission-plan-splits-coal-lobby-from-utilities-in-states [http://perma.cc/39VJ-6SJA] (discussing how some utilities are convincing states not to pass model legislation that would hinder or delay federal regulations on carbon emissions).
159. Boris Shor & Nolan McCarty, The Ideological Mapping of American Legislatures, 105 Am. Pol. Sci. Rev. 530-550 (2011) (“At the aggregate level, the states appear to follow the national pattern of high and growing polarization.”)
160. Conlan & Posner, Supra note 147, at 423 (noting ideological polarization characterizing state participation in federal grant programs).
161. Conlan & Posner, Supra note 147, at 444 (“Greater ideological polarization at all levels … may very well succeed in shifting the basis for intergovernmental policy formation … to an ideological party driven model.”)
162. Thompson A & Gusmano A, Supra note 79, at 429 (describing congressional polarization as creating federalism context in which “partisan identities of actors drive their behavior” and “state policy makers face pressure to act as committed, loyal party members”).
163. David K. Jones et al., Pascal’s Wager: Health Insurance Exchanges, Obamacare, and the Republican Dilemma, 39 J. Health Pol. Pol’y & L. 97-129 (2014) (describing role of partisanship in state resistance to creating health exchanges)
164. Coral Davenport, Republican Governors Signal Their Intent to Thwart Obama’s Climate Rules, N.Y. Times (July 2, 2015), http://www.nytimes.com/2015/07/03/us/republican-governors-signal-their-intent-to-thwart-obamas-climate-rules.html (on file with the Columbia Law Review) (reporting several governors’ threats not to enforce proposed greenhouse gas regulations)
165. Alyson Klein, Sec. Duncan in Weaker Spot on NCLB Waiver Renewals, Educ. Wk. (Feb. 12, 2015), http://www.edweek.org/ew/articles/2015/02/12/sec-duncan-in-weaker-spot-on-nclb. html (on file with the Columbia Law Review) (noting states pushing DOE more in waiver negotiations).
166. Louis Jacobson, The Year of Single Party Control and Supermajorities, Governing (Jan. 7, 2013), http://www.governing.com/blogs/politics/gov-year-single-party-control-supermajorities.html [http://perma.cc/7LZJ-TU3D] (noting high number of unified governments and increasing polarization at state level but arguing impact on policy is less clear)
167. Boris Shor, How U.S. State Legislatures Are Polarized and Getting More Polarized (in 2 Graphs), Wash. Post: Monkey Cage (Jan. 14, 2014), http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/01/14/how-u-s-state-legislatures-are-polarized-and-getting-more-polarized-in-2-graphs/ [http://perma.cc/2EU2-XWZT] (describing rates and variation in state polarization).
168. Kristina P. Doan, No Child Left Behind Waivers: A Lesson in Federal Flexibility or Regulatory Failure, 60 Admin. L. Rev. 211-224 (2008) (“If DOE continues to issue waivers to states for NCLB’s larger problems, states and LEAs will have less incentive to challenge NCLB’s provisions. In turn, Congress will have less motivation to reform NCLB’s widespread problems through legislation … .”)
169. Maggie Severns, The Plot to Overhaul No Child Left Behind, Politico (Jan. 2, 2015, 5:33 AM), http://www.politico.com/story/2015/01/the-plot-to-overhaul-no-child-left-behind-113857.html#ixzz3hsdVABqK [http://perma.cc/8WNG-LNH6] (“The waivers opened a pressure valve that allowed members of Congress to delay rewriting the law … .” (internal quotation marks omitted)).
170. Colleen M. Grogan & Elizabeth Rigby, Federalism, Partisan Politics, and Shifting Support for State Flexibility: The Case of the U.S. State Children’s Health Insurance Program, 39 Publius 47-65 (2009) (describing this dynamic in SCHIP and arguing it is potential feature of block grant programs due to flexibility such programs provide states).
171. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of 26, 42 U.S.C.).
172. Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress 210-22 (4th ed. 2011) (describing reconciliation procedure used to enact ACA)
173. Lawrence R. Jacobs & Theda Skocpol, Hard-Fought Legacy: Obama, Congressional Democrats, and the Struggle for Comprehensive Health Care Reform, in Reaching for a New Deal: Ambitious Governance, Economic Meltdown, and Polarized Politics in Obama’s First Two Years 53-76 (Theda Skocpol & Lawrence R. Jacobs eds., 2011) (describing partisan divisions at ACA’s enactment).
174. Eric J. Segall & Jonathan H. Adler, King v. Burwell and the Validity of Federal Tax Subsidies Under the Affordable Care Act, 163 U. Pa. L. Rev. Online 215, 217 (2015), http://www.pennlawreview.com/online/163-U-Pa-L-Rev-Online-215.pdf [http://perma.cc/497Q-R7LU].
175. Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 Yale L.J. 534-582 (2011) [hereinafter Gluck, Intrastatutory Federalism] (providing brief overview of ACA).
176. Copeland, New Entities, Supra note 177, app. at 20-38 (listing new entities created pursuant to ACA)
177. Robert Pear, U.S. Cites Rise in Health Plan Signups as Sebelius Testifies, N.Y. Times (Dec. 11, 2013), http://www.nytimes.com/2013/12/12/us/politics /health-care-law.html (on file with the Columbia Law Review) (detailing problems with roll¬out of federal health exchange).
178. Seth Motel, Opinions on Obamacare Remain Divided Along Party Lines as Supreme Court Hears New Challenge, Pew Res. Ctr. (Mar. 4, 2015), http://www.pewresearch.org/fact-tank/2015/03/04/opinions-on-obamacare-remain-divided-along-party-lines-as-supreme-court-hears-new-challenge/ [http://perma.cc/Q8LG-TLRE] (“[N]early nine-in-ten Republicans (87%) [are] against the [ACA] and roughly eight-in-ten Democrats (78%)[are] in support of it.”).
179. Russell Berman, Why Republicans Are Voting to Repeal Obamacare-Again, Atlantic (Feb. 3, 2015), http://www.theatlantic.com/politics/archive/2015/02/why-republicans-are-voting-to-repeal-obamacare-again/385105/ [http://perma.cc/ZFA8-UMHF] (arguing repeal efforts “doomed to fail” because “Republicans have nowhere near the veto-proof majority they’d need to kill Obamacare” and also noting Republican disagreement on appropriate measure to replace it).
180. Complaint at ff 25-50, U.S. House of Representatives v. Burwell, No. 14-cv-01967 (D.D.C. Nov. 21, 2014), 2014 WL 6492097 (arguing Obama Administration violated Article I of the Constitution by making certain ACA payments to insurers absent specific appropriation authorization and by postponing activation of ACA’s employer mandate)
181. C. Stephen Redhead & Janet Kinzer, Cong. Research Serv., R43289, Legislative Actions to Repeal, Defund, or Delay the Affordable Care Act 6-9 (2015), https://www.fas.org/sgp/crs/misc/R43289.pdf [https://perma.cc/5L7Q-948N] (discussing appropriations measures takenagainst ACA)
182. Robert Pear, Legal Challenges Remain for Health Law, N.Y. Times (June 26, 2015), http://www.nytimes.com/2015/06/27/us/legal-challenges-remain-for-health-law.html (on file with the Columbia Law Review) [hereinafter Pear, Legal Challenges] (describing variety of lawsuits brought against ACA).
183. See supra text accompanying notes 54-57.
184. Bagley, Supra note 186, at 1967-1969 (“In the administration’s view, the delays are a routine exercise of the executive branch’s traditional discretion to choose when and how to enforce the law.”).
185. Dinan, Supra note 146, at 411-417 (describing bargaining between administration and state officials)
186. Thompson & Gusmano, Supra note 79, at 432-435 (“[W]aivers became an attractive tool for enticing state participation.”).
187. Alex J. Luchenitser, A New Era of Inequality? Hobby Lobby and Religious Exemptions from Anti-Discrimination Laws, 9 Harv. L. & Pol’y Rev. 63-65 (2015) (noting Hobby Lobby’s lack of deference to government’s determination that no less restrictive alternatives existed)
188. John F. Manning, Foreword: The Means of Constitutional Power, 128 Harv. L. Rev. 42 (2014) (emphasizing NFIB’s lack of deference to Congress).
189. King, 135 S. Ct. at 2488-89 (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842-43 (1984)).
190. David W. Case, The Lost Generation: Environmental Regulatory Reform in the Era of Congressional Abdication, 25 Duke Envtl. L. & Pol’y Forum 49-61 (2014) (describing increased polarization around environmental issues since 1980s and current stalemate in Congress)
191. Davenport, Supra note 151 (describing Republican congressional leadership’s efforts to undermine proposed clean power rules).
192. Gluck, Intrastatutory Federalism, Supra note 174, at 589-592
193. Dinan, Supra note 146, at 400-401 (describing ACA provisions that depend on state participation).
194. See 42 U.S.C. §§ 18031(b)(1), 18041(c)(1) (2012) (mandating each state establish exchange and instructing HHS to establish exchange for state if state chooses not to do so).
195. Jacobs & Skocpol, Supra note 166, at 77-78 (noting even after ACA’s enactment, controversies over reform framework remained at “fever pitch”)
196. Thompson & Gusmano, Supra note 79, at 429 (claiming “ACA was the poster child for the well documented trend toward partisan polarization in the United States over the last several decades”).
197. Timothy M. Callaghan & Lawrence R. Jacobs, Dynamic Federalism and the Implementation of the Affordable Care Act 7 (2013) (unpublished manuscript), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2301530 (on file with the Columbia Law Review) (“The impact of partisanship is amply evident in state decision making on implementation of the ACA’s Medicaid expansion.”)
198. Noh & Krane, Supra note 221, at 5-6, 8, 19-20 (noting few exceptions to partisan split in supporting state-based exchanges).
199. Jones et al., Supra note 151, at 110-116 (detailing shift from exchange planning to resistance to implementing ACA in states with Republican legislatures)
200. Sarah Ferris, Red-State Governors Discuss Expansion of Medicaid with Obama, Hill (Jan. 6, 2015, 5:39 PM), http://thehill.com/policy/healthcare/228688-gop-governors-obama-closer-to-compromise-on-medicaid-expansion [http://perma.cc/7494-TA79] (indicating expansive federal funding convinced conservative states to begin expanding Medicare)
201. John Tozzi, Why Red States Will Expand Medicaid, Like It or Not, Bloomberg (July 30, 2014), http://www.bloomberg.com/bw/articles/2014-07-30/why-red-states-will-take-obamacares-medicaid-expansion [http://perma.cc/WBD9-MNPN] (comparing trends of coverage in Democrat- and Republican-controlled states).
202. Jeffrey M. Jones, Massachusetts, Maryland Most Democratic States, Gallup (Feb. 4, 2015), http://www.gallup.com/poll/181475/massachusetts-maryland-democratic-states.aspx [http://perma.cc/E232-KECS] (identifying solid Republican states).
203. Rose, Supra note 235, at 76-77 (exploring defeat of ACA waivers in Tennessee and Wyoming).
204. Dinan, Supra note 146, at 414 (noting in Arkansas, for example, “federal officials had acquiesced in virtually all the demands state officials had made”)
205. Thompson & Gusmano, Supra note 79, at 433 (emphasizing importance of HHS’s flexibility)
206. Sarah Kliff, Could Obamacare Make Medicaid More Republican?, Wash. Post (Feb. 25, 2013), http://www.washingtonpost.com/news/wonkblog/wp/2013/02/25/could-obamacare-make-medicaid-more-republican/ [http://perma.cc/WA2N-XWSK] (noting potential of waivers to address Republican policy preferences).
207. Thompson & Gusmano, Supra note 79, at 431-432 (describing strong support from hospitals for Medicaid expansion)
208. Rose, Supra note 235, at 65-68, 72, 78 (documenting support for Medicaid expansion from hospitals, business groups, advocacy groups, and other organizations).
209. Lawrence R. Jacobs & Timothy Callaghan, Why States Expand Medicaid: Party, Resources, and History, 38 J. Health Pol. Pol’y & L. 1023-1033 (2014) [hereinafter Jacobs & Callaghan, Why States Expand] (“Federal funding during unsteady economic and budgetary times may be especially attractive to states with particularly strained circumstances … .”).
210. Rose, Supra note 235, at 68-72 (describing cost shifting possibilities) (noting potential for states to shift costs but concluding economic considerations generally do not drive expansion decisions). Some Republican states have not expanded Medicaid despite the sizable federal funds in play. See, e.g., Wade Goodwyn, Texas Loses Billions to Treat the Poor by Not Expanding Medicaid, Advocates Say, NPR (May 29, 2015, 5:08 AM), http://www.npr.org/2015/05/29/410470081/texas-didn-t-expand-medicaid-advocates-say-money-is-being-left-on-the-table (on file with the Columbia Law Review) (discussing Texas’s decision to not expand Medicaid and thus forego billions in federal funds).
211. Jacobs & Callaghan, Why States Expand, Supra note 239, at 1036-1037. Two other potential moderating factors are state administrative capacity and prior experience with intergovernmental bargaining, although these factors likely overlap.
212. Timothy Callaghan & Lawrence R. Jacobs, Process Learning and the Implementation of Medicaid Reform, 44 Publius 541-542 (2014) (describing bargaining procedures)
213. Jacobs & Callaghan, Why States Expand, Supra Note 239, at 1039.
214. Rose, Supra note 235, at 69-78
215. Barrilleaux & Rainey, Supra note 158, at 440, 447-48, 453 (noting Governor John Kasich’s emphasis on needs of uninsured but concluding “economics and need have little effect” on governors’ expansion decisions).
216. Rose, Supra note 235, at 79 (“[A]dvocates can point to the growing list of participating red states as evidence that expansion is a politically neutral issue.”).
217. A number of Democratic governors have pushed expansion models containing policy approaches typically favored by Republicans, such as use of private insurance or co-pays, while several Republican governors have sought to expand Medicaid on fairly traditional terms. See Rose, Supra note 235, at 71-72, 75-76 (noting traditional Medicaid expansion in Nevada and Arizona, with Republican governors, and premium assistance approach in Arkansas, with Democratic governor).
218. Sunstein, Partyism, Supra note 97 (manuscript at 15) (“[W]ith imaginable empirical projections, there may be sufficient consensus to ensure agreement on particular outcomes, even amidst significant differences in value and across party lines.”).
219. Gluck, Intrastatutory Federalism, Supra note 174, at 568-572.
220. Laura Katz Olson, The Politics of Medicaid 4-5, 12-13 (2010) (arguing vast array of stakeholders have assured Medicaid’s expansion and durability over program’s history)
221. Frank J. Thompson, Medicaid Politics 203-32 (2012) (arguing Medicaid expanded between 1993 and 2010 despite polarization and attacks on welfare state and tracing relationship between program’s resilience and federalism).
222. Kurzweil, Supra note 142, at 601-608 (tracing history of NCLB waivers).
223. Wong, Supra note 142, at 408-418 (documenting difficulties of complying with teacher-evaluation standards, even in states that satisfied most other requirements of NCLB)
224. Klein, Supra note 151 (noting “[t]eacher evaluation … has been the trickiest area of waiver implementation”).
225. Motoko Rich & Tamar Lewin, No Child Left Behind Law Faces Its Own Reckoning, N.Y. Times (Mar. 20, 2015), http://www.nytimes.com/2015/03/22/us/politics/schools-wait-to-see-what-becomes-of-no-child-left-behind-law.html (on file with the Columbia Law Review) (detailing ongoing congressional efforts to replace NCLB waivers).
226. Emma Brown, Senate’s Effort to Rewrite NCLB Sparks Cautious Optimism, Wash. Post (Apr. 8, 2015), http://www.washingtonpost.com/local/education/senates-effort-to-rewrite-nclb-sparks-cautious-optimism/2015/04/08/c7eaac42-ddf4-11e4-be40-566e2653afe5_story.html [http://perma.cc/J6KE-UD3B] (describing reactions of President Obama and DOE Secretary Duncan to proposed bipartisan Senate bill).