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Pooling Powers COLUMBIA LAW REVIEW VOL. 115 MARCH 2015 NO. 2 ARTICLE POOLING POWERS Daphna Renan* By “pooling” legal and other resources allocated to different agen- cies, the executive creates joint structures capable of ends that no single agency could otherwise achieve. Pooling destabilizes core conceptions of administrative law. According to one influential account, for example, Congress exercises control over the bureaucracy through agency design. Pooling, however, calls into question the stickiness of those initial struc- tural bargains. Through pooling, the executive reconfigures administra- tion from within. If pooling renegotiates boundaries inside the adminis- trative state, we might expect courts to actively police it. Yet judicial supervision, under current doctrines of administrative law, is quite spotty. Pooling can be a salutary response to administrative silos in our fast-changing and interconnected times. But pooling has a dark side. It can make administrative action less accountable and render legal safe- guards less resilient. The Article documents pooling across a range of policy domains, identifies its mechanisms, explores its structural and analytic implications, exposes legal questions that it raises, and pro- vides a preliminary normative assessment. INTRODUCTION ......................................................................................... 212 I. POOLING INSIDE THE EXECUTIVE........................................................... 218 A. Definitional Criteria.................................................................... 218 B. Mechanisms................................................................................. 220 *. Alexander Fellow, New York University School of Law; formerly Attorney Advisor, Office of Legal Counsel, and Counsel, Office of the Deputy Attorney General. The views expressed are my own, and the discussion is based only on publicly available documents. For helpful comments, I am grateful to Kate Andrias, Nicholas Bagley, Rachel Barkow, David Barron, Joseph Blocher, Jessica Bulman-Pozen, Adam Cox, Ashley Deeks, Judge Harry T. Edwards, Michael Farbiarz, Barry Friedman, Heather Gerken, Scott Hershovitz, Sam Issacharoff, David Kamin, Daryl Levinson, Mike Livermore, Jerry Mashaw, Gillian Metzger, JoN Michaels, Trevor Morrison, Anne Joseph O’CoNNell, Rick Pildes, H. Jefferson Powell, David Pozen, Judith Resnik, Ricky Revesz, Dan Richman, Cristina Rodriguez, Adam Samaha, Margo Schlanger, David Schleicher, Larry Schwartztol, Miriam Seifter, Cathy Sharkey, Kate Shaw, Mila Sohoni, Rebecca Stone, Kenji Yoshino, the editors of the Columbia Law Review, and participants at the New Voices in Administrative Law workshop at the Association of American Law Schools annual meeting and the Columbia Law School National Security Law workshop. 211 212 COLUMBIA LAW REVIEW [Vol. 115:211 1. Using Levers ............................................................................ 221 2. Combining Legal Authority with Expertise ........................... 223 3. Blending Legal Tools .............................................................. 228 C. Unpooling as Foil........................................................................ 231 II. EXPLAINING POOLING’S UTILITY FOR THE EXECUTIVE ......................... 234 A. Expectations and Gridlock ......................................................... 235 B. Curtailment of Reorganization Authority Post-Chadha ............. 236 C. Technological Change ................................................................ 239 D. The New Security ........................................................................ 240 III. STRUCTURAL IMPLICATIONS FOR THE ADMINISTRATIVE STATE ............ 243 A. Inside the Executive.................................................................... 243 1. The Third Leg of the Tripod.................................................. 245 2. Power Over .............................................................................. 246 3. Power To .................................................................................. 249 B. Congress ...................................................................................... 255 1. Pooling Generates Capacity Without Congress ..................... 255 2. Pooling Is a Mechanism of Bureaucratic Drift....................... 257 3. Pooling CaN Diminish the Effectiveness of Congress’s Committee Oversight Structures................... 263 4. Pooling Circumvents Some of Congress’s Funding-Related Constraints ............................................... 264 C. Courts .......................................................................................... 268 1. Direct Oversight Through Administrative Law...................... 268 2. Indirect Oversight Through Rulemaking Review.................. 269 3. Limits to Indirect Oversight Through Administrative Law... 272 IV. CHEMISTRY OR ALCHEMY? .................................................................... 275 A. Evaluating Pooling ...................................................................... 275 1. Efficacy..................................................................................... 275 2. Democratic Accountability ..................................................... 277 3. Protecting Fundamental Rights.............................................. 279 B. Constituting Pooling ................................................................... 280 C. Regulating Pooling...................................................................... 285 1. Internal Constraints ................................................................ 286 2. External Checks ...................................................................... 287 CONCLUSION ............................................................................................. 291 INTRODUCTION Much scholarship on the design of the administrative state shares a common premise: Presidents use structural tools to amplify power over 2015] POOLING POWERS 213 the agencies.1 Yet for the institutional players inside the executive, politi- cal control is only part of the game. Executive structuring is also about augmenting administrative capacity. The overriding focus on presidential power over the agencies has obscured a significant tool of the executive—what this Article labels pooling. Through pooling, the execu- tive augments capacity by mixing and matching resources dispersed across the bureaucracy. Pooling blends the legal authorities that different agencies derive from distinct statutory schemes. And it enables the execu- tive to combine one agency’s expertise with legal authority allocated to another. While pooling has implications for the enduring debates on presidential “power over” the agencies, it brings into view a different puzzle. For a legal order built on structural separations, what are the con- sequences of administrative integration—or “power to”?2 Pooling touches some of the most pressing and politically contested policy spaces of the present day. Consider two recent snapshots. The executive perceives the cyberthreat to critical infrastructure inside the United States to be a top security concern. The National Security Agency (NSA) possesses the relevant expertise, but legal and political constraints prevent it from taking the lead in domestic cybersecurity. The Department of Homeland Security (DHS) does not confront the same hurdles, but it also does not possess the relevant expertise. The executive addressed this challenge through pooling. The DHS and the NSA entered into a memorandum of agreement that brings the NSA’s tech- 1. See, e.g., William G. Howell & David E. Lewis, Agencies by Presidential Design, 64 J. Pol. 1095, 1096 (2002) (arguing Presidents design agencies to maximize presidential control); Terry M. Moe & Scott A. Wilson, Presidents and the Politics of Structure, Law & Contemp. Probs., Spring 1994, at 1, 17–19 (arguing Presidents use institutional strategies to assert control over bureaucracy). The legal literature is vast and rich. It includes, for example, debates over the legality and desirability of regulatory review by the Office of Information and Regulatory Affairs, see, e.g., Kirti Datla & Richard L. Revesz, Deconstruct- ing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 774 (2013) (arguing President has legal authority to subject all agencies, including independent agen- cies, to regulatory review); the use of presidential directives, compare, e.g., Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2251 (2001) (defending practice of presidential directives to agencies), with Peter L. Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 704–05 (2007) [hereinafter Strauss, Overseer or Decider?] (arguing Presidents lawfully exercise supervision, but not decisional authority over agencies); and the growth of White House “czars,” see, e.g., AaroN J. Saiger, Obama’s “Czars” for Domestic Policy and the Law of the White House Staff, 79 Fordham L. Rev. 2577, 2583 (2011) (arguing President Barack Obama’s “pro- liferation of high-profile czars is his particular instantiation of a policy, common to all modern Presidents, of seeking to magnify his control over agency action”). 2. In this sense, the federal executive resembles Clarence Stone’s conception of a “regime.” Stone rejected a model of urban governance oriented around “the difficulty of maintaining a comprehensive scheme of control.” Clarence N. Stone, Regime Politics: Governing Atlanta,
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