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Political polarization is all the rage. Yet administrative agencies are strikingly absent from leading accounts of contemporary polarization. To the extent they appear, it is largely as acted-upon entities that bear the fallout from the congressional-presidential confrontations that polarization fuels, or as the tools of presidential unilateralism. This failure to incorporate administrative agencies into polarization accounts is a major omission. Agencies possess broad grants of preexisting authority that they can use to reshape governing policy and law, often at presidential instigation, thereby putting pressure on Congress to respond. In the process, they can construct new alliances and arrangements that have the potential to break through partisan divides and alter the political landscape. If nothing else, agencies' preexisting powers mean that the policy gridlock produced by polarization at the political level does not forestall policy development altogether

This Essay, written in honor of Peter Strauss, aims to deepen current understanding of the relationship between administrative agencies and political polarization. Using Professor Strauss's insight that agencies exist in a web of control relationships as a launching point, the Essay probes how polarization affects these control relationships and the extent to which agencies can develop policy and potentially reshape partisan divides. Polarization, or at least polarization combined with divided government, hobbles proactive legislative direction, with the result that congressional oversight is exercised most frequently by inaction, delay, and budget constraints. These moves frustrate agencies' ability to function and meet emerging regulatory challenges, but also create new opportunities for unilateral executive branch action. Polarization and congressional dysfunction also result in greater presidential control of administration and heightens the salience of executive and judicial constraints on how agencies function. Yet focusing simply on the forces empowering or constraining agencies at the federal level misses the critical element of state participation in federal programs and federal regulation. Such state involvement injects a political edge into program implementation and provides a potential mechanism for checking executive branch unilateralism at the same time that it opens up opportunities for bipartisanship.

After setting out a conceptual account of the relationship between agencies, polarization, and the states, the Essay examines implementation of the Affordable Care Act (ACA) to assess how these complicated dynamics operate in practice. The ACA is a fascinating case study because it both epitomizes today's deeply polarized politics and at the same time is the site of increasing bipartisanship at the implementation level, due to interactions between federal agencies and the states.


Administrative Law | Health Law and Policy | Law | Law and Politics