Agencies, polarization, and the states

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 fall out 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 puttingpressure on Congress to respond. In theprocess, they can construct new alliances and arrangements that have the potential to break through partisan divides and alter the political landscape. 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. Yet focusing simply on the forces empoweringor 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.