Reviving Federal Regions.

• Author: Blank, Yishai
• Position: Themed Issue on Federalism

Introduction I. The Nature and Roles of Federal Regions A. Why Federal Regions? B. The Three Conceptions of Federal Regions 1. Regions as enforcers 2. Regions as mediators 3. Regions as coordinators 4. Tensions among the three conceptions II. A History of Federal Regionalism A. The Mediation Era: 1920s-1940s B. The Coordination Era: 1950s-1970s 1. Nixon's New Federalism 2. Federal regions as semi-general-purpose governments C. The Enforcement Era: 1980s-2000s D. The Revival of Regions in the Twenty-First Century? III. The Merits and Drawbacks of Federal Regions A. The Merits of Federal Regions 1. Enhancing democracy 2. Buffering political pressures from above and below 3. Bolstering the separation of powers 4. Responding to regional challenges and forming regional knowledge and expertise 5. Promoting diversity and minority inclusion 6. Fostering innovation and experimentalism 7. Improving cooperation and coordination B. The Drawbacks of Federal Regions 1. Unequal and inconsistent application of federal laws and policies. 2. Undermining national policies, negative externalities, and problems with nationwide coordination 3. Capture by state and regional interest groups 4. Creating a more complicated and inefficient governmental structure 5. Hindering democratic accountability IV. The Law of Federal Regions A. The Legal Status of Federal Regions 1. Congressionally imposed constraints 2. Presidentially imposed constraints 3. Indirect constraints imposed by adjudication B. Authorization and Delegation 1. Subdelegation of powers to regions 2. Redelegation 3. Consultation 4. Interagency agreements C. Judicial Review 1. Deference to regional offices' interpretations 2. Headquarters' diverging from regional interpretations 3. Headquarters' silence regarding regional interpretations D. Institutional Design: Appointment of Regional Heads and Regional Councils 1. Appointments 2. Strengthening the federal executive boards Conclusion Introduction

More than one hundred federal departments, agencies, offices, and bureaus, some old and some new, some executive and some independent, operate through a system of regional offices strategically located across the country. Among the departments and agencies that have administrative regions are the U.S. Environmental Protection Agency (EPA), the U.S. Social Security Administration (SSA), the Consumer Financial Protection Bureau (CFPB), the Federal Emergency Management Agency (FEMA), the Federal Reserve System, the U.S. Department of Housing and Urban Development (HUD), the Bureau of Land Management (BLM), and the National Labor Relations Board (NLRB), to name a few. (1) The regional offices of these and other federal entities serve as a governmental layer sitting in between the Washington-based headquarters and the field offices of the agency. Each regional office typically reigns over a broad geographic region encompassing several states and is in charge of its department's or agency's operations within its jurisdiction. (2) Regional offices normally implement central policies, oversee the department's or agency's field operations, make determinations regarding states' applications for grants and permits, and form regional policies--all within their region.

Currently these federal regions are regarded chiefly as mere enforcers and implementers of central policies--the long arms of a wholly centralized bureaucracy. Such an intuitive, yet impoverished, understanding of federal regions has led in turn to their weakening through deficient legal authorization by Congress and misguided interpretations of their powers by administrators and courts. The history of federal regions suggests that there are better alternatives to this understanding; regions could serve as mediators between state and federal interests and as coordinators among scattered federal and state agencies. Designing administrative regions according to these alternative visions, and reframing and amending various administrative law doctrines in accordance, could make the federal administration more responsive, effective, democratically accountable, and capable of responding to the vexing challenges it currently faces: a severe democratic deficit, (3) acute problems of intergovernmental coordination, (4) and increased political control by the President over the administration. (5)

The first potent alternative vision of federal regions we distill from the historical record is the conception of regions as mediators. This conception views them as mediating between central headquarters on the one hand and state and local governments on the other. Each governmental level represents a different set of interests and values; these sets of interests are often in conflict. Thus, regional offices, which are tasked with implementing agency policies in the region, are required to mediate between these competing sets of interests. Regional offices can navigate between the pull from below and push from above, applying agency policies in ways that are more attuned to both central demands and the people who reside in the region. Regional offices also mediate between politics and expertise, serving as buffers between political pressures and professional commitments. Relatively insulated from both Washington and state partisan politics, (6) regional officials can infuse their expert points of view with principled politics without simply capitulating to the will of the President or presidential appointees. They can thereby serve as much more than passive agents of Washington; they can be policymakers in their own right. Accordingly, authorizing the regions to serve as normative mediators could, counterintuitively (given the tendency to view the administration as democratically inferior to the political branches), ameliorate the democratic deficit that currently afflicts the administration.

The second conception--regions as coordinators--sees them as the primary coordinating agents of the federal government within a particular region. Many contemporary accounts view centralization as the best remedy for interagency coordination problems. (7) In contrast, we propose decentralization within the federal government as the better solution. Our approach rests on the fact that regional offices oversee a large number of federal programs and policies that are administered by different departments and agencies in the region. This makes regional offices ideally situated to coordinate between the departments and agencies, whose jurisdictions often overlap and even conflict, and to forge an intergovernmental regional perspective and agenda. Moreover, regional offices can coordinate not only among the large number of federal agencies but also between the agencies and the state and local governments within the region.

These two alternative conceptions of federal regions have significant potential to alter our understanding of the U.S. system of federal government. Many accounts of federalism imagine that only states (and sometimes localities) can achieve federalist goals (8): being responsive to democratic preferences and interests; preventing the concentration of excessive power in one governmental entity; promoting experimental democracy; constructing qualified and well-regulated jurisdictional competition; enhancing diversity; and protecting disadvantaged minorities. The federal government, in this common view, serves as a corrective for the various problems associated with decentralization, such as problems of coordination, inequality, negative externalities, myopia, and fragmentation. Even when central bodies such as Congress and the President promote federalism, they do so by transferring powers from the federal government to the states. But hardly anyone seems to suggest that the federal government itself can advance federalist ideals. (9) Our novel claim is that this is precisely what the federal government does by administering authority through its territorial subdivisions--the regional offices of its departments and agencies. Thus, the regions of the various departments and agencies should be seen as sometimes complementary and sometimes supplementary to states in achieving the main goals of federalism.

By focusing on regional offices and their interactions with other federal, regional, state, and local entities, this Article contributes to the growing body of literature dedicated to "crack[ing] open the black box of agencies," (10) which emphasizes the internally complex and decentralized nature of administrative agencies. While previous scholarship considered federal regions only cursorily, treating them merely as an example of the hierarchical structure of federal agencies that includes both bureaucrats in Washington and a host of line, branch, and field offices, (11) this Article highlights the distinctive character of regional offices within the administration by revealing their unique history and potential. Furthermore, the identification of federal regions as meaningful policymakers enables us to shift attention from agencies' central headquarters, and from the centralized rulemaking through which they operate, to the many "internal administrative law" measures such as "measures governing agency functioning that are created within the agency or the executive branch and that speak primarily to government personnel." (12) This shift calls for a more complicated analysis of inter- and intra-agency dynamics and a more nuanced application of existing administrative law doctrines.

Our model of regions as mediators and coordinators is deeply rooted in the history of U.S. public administration. During the New Deal, political theorists, politicians, and bureaucrats designed and implemented a regionalized structure for the federal government. This structure was intended to counter both an excessively powerful central government and the fragmentation produced by handing powers over to the states while taking into serious consideration...