Reorganizing Government

A Functional and Dimensional Framework

Alejandro Camacho, Robert Glicksman, Alejandro E. Camacho

• Publisher: NYU Press
• Year: 2019
• Print ISBN: 9781479829675
• eBook ISBN: 9781479833290
• Topic: Law
• Subtopic: Public Law
• Index: Law

A pioneering model for constructing and assessing government authority and achieving policy goals more effectively Regulation is frequently less successful than it could be, largely because the allocation of authority to regulatory institutions, and the relationships between them, are misunderstood. As a result, attempts to create new regulatory programs or mend under-performing ones are often poorly designed. Reorganizing Government explains how past approaches have failed to appreciate the full diversity of alternative approaches to organizing governmental authority. The authors illustrate the often neglected dimensional and functional aspects of inter-jurisdictional relations through in-depth explorations of several diverse case studies involving securities and banking regulation, food safety, pollution control, resource conservation, and terrorism prevention. This volume advances an analytical framework of governmental authority structured along three dimensions—centralization, overlap, and coordination. Camacho and Glicksman demonstrate how differentiating among these dimensions better illuminates the policy tradeoffs of organizational alternatives, and reduces the risk of regulatory failure. The book also explains how differentiating allocations of authority based on governmental function can lead to more effective regulation and governance. The authors illustrate the practical value of this framework for future reorganization efforts through the lens of climate change, an emerging and vital global policy challenge, and propose an "adaptive governance" infrastructure that could allow policy makers to embed the creation, evaluation, and adjustment of the organization of regulatory institutions into the democratic process itself.

PART I

An Analytical Framework

Chapter 1

Substantive and Functional Jurisdiction

Scholars and policymakers have devoted considerable attention to the ways governmental authority can or should be allocated within and among governmental bodies. Rarely, however, do such discussions involve a detailed and complete examination of the scope of authority for each regulatory actor. In this chapter, we identify the different types of regulatory or management authority vested in agencies by legislatures or executive branch officials, such as the President or heads of government departments. In so doing, the chapter highlights a key but underappreciated distinction between the subject matter authority of regulators and the locus of control over different governmental tasks.

In each allocation of regulatory authority, there is not only a substantive allocation but also a functional one. First, an agency’s jurisdiction can be determined on the basis of the subject matter it is authorized to regulate or manage (such as activities that result in air pollution or mineral extraction on public lands). As we describe in detail in section A, we call this substantive jurisdiction. Second, and perhaps less obviously, jurisdiction can be defined in terms of the functions an agency performs (such as planning or enforcement). We label this functional jurisdiction and explore it more fully in section B.

Figure 1.1 provides a straightforward, if simplistic, illustration of the difference between functional and substantive authority by looking at a single administrative agency. It shows how that agency might be primarily organized internally along substantive or functional lines. Assume an agency has regulatory authority to monitor, set standards for, license, and enforce compliance over the trading of financial securities by issuers, exchanges, and investment advisors. That regulator might be organized into separate substantive divisions—each respectively regulating issuers, exchanges, investment companies, and investment advisors through monitoring, standard setting, licensing, and enforcement functions. Alternatively, departments might be divided according to the governmental functions they undertake, such as monitoring, standard setting, licensing, and enforcement, without regard to the identity of the regulated entity. In both circumstances, the agency has been allocated the same substantive and functional jurisdiction, but in the former case its subdivisions are divided based on substantive jurisdiction while in the latter case they are divided according to functional jurisdiction.

Figure 1.1. Intra-agency substantive and functional organization.

To take another example, national pollution control authority might be (and, in the United States, often is) apportioned into substantive silos according to the particular type of resource (e.g., air, water, or solid waste) targeted for protection. Such authority, however, might also be divided into functional categories according to the governmental activity at issue (e.g., standard setting, permitting, and enforcement).

Of course, most configurations of governmental authority are more complex than these simple examples, and the functional–substantive framework helps reveal these intricacies and their implications. Most government organizations have authority over a segment of many, though often not all, of the possible functions for a particular substantive area. And government organizations are quite commonly composed of both substantive and functional divisions. More significantly, a government organization’s particular mix of substantive jurisdiction and suite of functions will inevitably coincide with, and/or relate to, those of other government organizations. Different agencies may be responsible for performing discrete tasks within the same substantive area. Multiple agencies with the same substantive jurisdiction may also be assigned some of the same tasks as others within that area.

Precisely because of these complexities, affording attention to functional jurisdiction in addition to substantive jurisdiction provides insights about the policy and value tradeoffs among available options for allocating government authority that may otherwise be obscured. In characterizing governmental jurisdiction, primary attention tends to be given to evaluating the scope of an agency’s responsibilities based on the scope of the substantive authority of the governmental entity. However, regulatory authority is also consistently (though often only implicitly) apportioned based on the function or functions that a particular governmental institution may exercise. As illustrated in chapters 3, 4, and 5, policymakers’ neglect, either of the functional component of delegated authority or of the ways in which an agency’s substantive and functional jurisdictions interact with one another and with the jurisdictions of other relevant actors, can easily thwart those policymakers’ regulatory or management goals. The following two sections describe the parameters of substantive and functional jurisdiction in greater detail.

A. Substantive Jurisdiction

Substantive jurisdiction is perhaps the most elementary component for understanding allocations of agency authority to manage social problems addressed by regulatory programs. Congress grants to administrative agencies limited substantive authority to regulate or manage specific social issues or problems. The protection of federal workplace health and safety, for example, falls within the purview of the Occupational Safety and Health Administration. The US Department of Agriculture oversees the agriculture industry. Transportation infrastructure is covered by the Federal Highway Administration and the Department of Transportation. Immigration is supervised by US Citizenship and Immigration Services. The Centers for Disease Control and Prevention conduct research and coordinate prevention measures for disease. The Federal Emergency Management Agency is charged with disaster planning and management.

In environmental regulation, administrative authority is typically restricted to regulation or management of a particular environmental resource (such as clean air or clean water). Indeed, substantive authority may be further divided based on particular features or components of a protected resource or “medium.” Surface water quality, for example, is regulated by the US Environmental Protection Agency (EPA) and designated state water quality agencies (such as California’s State Water Resources Control Board), while the allocation of water supply falls within the domains of various federal, state, and local water resources agencies (such as the federal Bureau of Reclamation, the California Department of Water Resources, and the Metropolitan Water District of Southern California). Similarly, the Interior Department’s US Fish and Wildlife Service (FWS) has jurisdiction over management of terrestrial or fresh water (including endangered or threatened) species, while the Commerce Department’s National Marine Fisheries Service manages marine species. Public land management is divided based on particular land management goals: the National Park Service and the FWS being charged primarily with the duty to preserve natural resources and provide recreational opportunities, while the US Forest Service and the Bureau of Land Management are required to promote a broader range of multiple uses of the lands under their jurisdiction.1

Division of authority on the basis of subject matter is not unique to pollution control or natural resources law. The Food and Drug Administration generally regulates some food products, while the United States Department of Agriculture’s Food Safety and Inspection Service has jurisdiction over other foods (meat, poultry, and processed egg products).2 The Dodd-Frank Act3 vested in one agency the authority to regulate providers of consumer financial products and services, including insured banks, savings and loans, and large credit unions. But it delegated to a different agency regulatory control over smaller depository institutions, and it retained authority in still other agencies to regulate transactions in securities and commodities futures.4 Meanwhile, informational privacy, as Bamberger and Mulligan have described it, “is governed by a variety of different laws, administered by different agencies […] setting forth divergent requirements governing the treatment of information by type and business sector.”5

Substantive authority may be delegated to a particular agency in recognition of the technical expertise that it may bring to bear on the regulatory problem. Expertise in atmospheric chemistry, for example, is useful for understanding and regulating air quality; an ecology background is useful for managing biological resources; a public health or medical background for disease prevention; and forestry expertise for forest management.6 California has vested multiple agencies with the authority to regulate different aspects of the electric utility industry in order to reflect the expertise of each agency.7 Similarly, scholars have urged an expansion of the Copyright Office’s authority over the complex and dynamic issues in which it has expertise.8

B. Functional Jurisdiction

The academic literature often focuses on agencies’ substantive jurisdiction, but the manner in which Congress and other policymakers allocate authority along functional lines may also influence the extent to which a regulatory program achieves statutory goals. Governmental authority may be allocated or anal...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Abbreviations Used in the Text
• List of Figures
• Introduction
• Part I: An Analytical Framework
• Part II: The Importance of Functional Jurisdiction
• Part III: Distinguishing Dimensions
• Part IV: An Integrated and Comparative Capstone
• Conclusion
• Acknowledgments
• Notes
• Index
• About the Authors