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A New Kind of Public/Private Partnership

Rory Van Loo, The New Gatekeepers: Private Firms As Public Enforcers, 106 Va. L. Rev. 467 (2020).

The cooperation of public and private actors to achieve public goals is not new. More than 80 years ago, Louis Jaffe lauded the longstanding and substantial involvement of private groups in the regulatory sphere. The scope, range, and legal significance of coordination between the public and private spheres have expanded since then. Modern governance is a complicated web of relationships between public and private actors, command and cooperative structures, and hard law versus soft guidance. A robust academic literature assigns different labels to this phenomenon: privatization, public/private partnerships, and new governance, to name just a few.

By necessity, these arrangements entail the exercise of policymaking discretion by private actors, to varying degrees depending upon the scenario. The result is a diffusion of governmental power that neither Congress nor the courts are likely to roll back substantially. With The New Gatekeepers: Private Firms As Public Enforcers, Rory Van Loo identifies and explores yet another way in which government relies on private actors—by looking to large corporations to serve as “enforcer firms” or “gatekeepers” ensuring compliance with federal law.

Van Loo begins his analysis with a survey of “prior narratives of third-party private regulation.” Private firms independently monitor other firms for compliance with the law in order to protect their own interests: e.g., banks monitoring their borrowers for illegal activity that might impair the value of collateral, or insurance companies monitoring their insureds for legal noncompliance that might trigger insurance payouts. Self-regulatory organizations like the New York Stock Exchange police the actions of their members to protect the reputation of their industries. Legislatures pass laws imposing vicarious liability and information disclosure requirements, authorizing citizen suits, and protecting or even rewarding whistleblowers to encourage private enforcement of the law. Legislators and agencies also mandate private enforcement when they require certification from accredited, third-party inspectors before a business can operate.

Van Loo argues that the scholarly literature lacks “an examination of mandates that explicitly direct regulated entities to serve as enforcers.” To fill that void, he offers case studies based on “[t]he ten largest companies operat[ing] in four main industries: information technology, banking, pharmaceuticals, and oil,” asserting that these case studies “demonstrate how administrative agencies, after receiving authority from Congress, have delegated” enforcement authority to these private actors.

For the technology sector, Van Loo points to FTC third-party oversight orders against Amazon, Facebook, Google, and Lenovo, for example requiring Facebook to audit the security and privacy practices of app developers for the purpose of protecting consumer data privacy. For the banking sector, Van Loo documents CFPB lawsuits, and subsequent settlement agreements, holding banks like JP Morgan Chase and Wells Fargo responsible for the deceptive acts or practices of third-party call centers, debt collectors, software developers, and real estate lawyers with which the banks do business, thereby forcing the banks to police the behavior of those third parties. For the pharmaceutical industry, Van Loo identifies an expansive regime of FDA regulations, guidance statements, and warning letters explicitly requiring drug companies to maintain quality control units “responsible for approving or rejecting drug products manufactured, processed, packed, or held under contract by another company,” thus requiring the drug companies’ to monitor not only the “output” but also the “inputs”—i.e., materials and ingredients—of those third-party contractors.

In summary, according to Van Loo, “[f]ederal regulators have established an expectation that today’s largest companies regulate independent contractual parties for legal violations” and, thus, “serve as a new breed of gatekeepers because the regulated entities must now decide whether to give the third parties market access based on regulatory considerations.”

Van Loo next turns his attention to the ways in which large corporations perform this new regulatory role. In particular, he describes a system of private regulation through contract drafting. At the suggestion (or instruction) of federal agencies, enforcer firms incorporate into written agreements with third-party contractors their own expectations regarding compliance with regulatory requirements, as well as penalties for noncompliance. Federal regulators in turn monitor the efforts of the enforcer firms to monitor third-party compliance those contractual requirements and the law more generally. In this way, the federal government deputizes and delegates enforcement authority to a small number of large, private corporations.

Turning to concerns about this new regulatory tool, Van Loo argues that conscripting private corporations to serve as enforcer firms represents “greater federal intervention into corporate governance and operations [that allows] a large number of federal agencies to shape the firm’s relationships, contracts, board activities, and liability.” He notes further that, in some instances, government efforts to force private corporations into the enforcer firm role have extended to imposing potential legal liability upon individual corporate officers and directors for the actions of third-party contractors as well.

Irrespective of whether one favors or disfavors more government involvement in corporate activity, Van Loo posits unintended consequences and economic tradeoffs. Mandated third-party governance by large corporations will alter corporate structures by incentivizing those firms to stop outsourcing functions to third parties and instead to bring more activities back in-house or to purchase third-party service providers outright. The compliance departments of large corporate firms have grown dramatically in recent decades, expanding the regulatory state bureaucracy and resources dedicated to regulatory compliance substantially; Goldman Sachs employs twice as many compliance personnel as the CFPB, and Facebook’s compliance reviewers far outnumber the total employees of the FTC, Facebook’s main regulator. Yet, we have little evidence to evaluate whether or under what circumstances enforcement firms are an effective and efficient regulatory compliance tool.

Van Loo raises practical concerns about overlapping jurisdiction, strategic shirking, cosmetic box checking, and other efficacy issues. Moreover, accountability is a problem. Government agencies may monitor the regulatory enforcement activities of large corporations, but courts have few mechanisms and seemingly little role to play in holding enforcer firms accountable for their actions in this regard.

Van Loo’s article comes at a potentially pivotal time in administrative law jurisprudence and scholarship. We are in the midst of the latest round of debate over whether the regulatory state has become too powerful and needs to be curtailed by the courts. In Lucia v. SEC and Seila Law LLC v. CFPB, the Supreme Court has taken up issues concerning the constitutionality of how agencies are structured. The last year has seen opinions in Gundy v. United States and United States v. Paul representing a majority of the Justices signaling concerns about congressional delegations of legislative power to agencies and the desire to adopt a more robust nondelegation doctrine to curtail such actions. Yet, at this moment of national discussion and debate, and notwithstanding a robust and longstanding academic literature on the topic, the extensive delegation of regulatory power from agencies to nongovernmental actors has received much less attention. Perhaps Van Loo’s article will spark further discussion.

Cite as: Kristin Hickman, A New Kind of Public/Private Partnership, JOTWELL (May 28, 2020) (reviewing Rory Van Loo, The New Gatekeepers: Private Firms As Public Enforcers, 106 Va. L. Rev. 467 (2020)), https://adlaw.jotwell.com/a-new-kind-of-public-private-partnership/.

When Agencies Do Not Not Have Statutory Power to Regulate

William W. Buzbee, Agency Statutory Abnegation in the Deregulatory Playbook, 68 Duke L.J. 1509 (2019).

When a President who campaigned on a deregulatory platform assumes office, the question immediately arises whether, in light of the unlikelihood of significant statutory assistance by Congress, the new administration will be able to achieve substantial deregulation on its own. In most contexts, agencies looking to ease regulatory burdens have essentially two options: they can engage in a reappraisal of the regulatory record (like the Reagan administration’s failed attempt to rescind the passive restraint requirement for new automobiles), or they can reinterpret the statute or statutes underlying a regulatory program (such as the same administration’s successful reform of the regulation of “stationary sources” of air pollutants), or both.

In the most exotic permutation of the latter method, employed more by the Trump administration than any previous administration, agencies have occasionally argued that their predecessors lacked statutory power to regulate as they did, leaving them no legal choice but to abandon a prior administration’s regulatory program. In Agency Statutory Abnegation in the Deregulatory Playbook, William Buzbee describes, analyzes, and dissects this “statutory abnegation” strategy, and persuasively illustrates that it has been and is likely to remain unsuccessful without major changes to basic principles of administrative law.

Buzbee provides a clear and succinct definition of statutory abnegation: “Acting against a backdrop of unchanged statutory law, an agency reexamines its powers under that law. In a break from past agency power claims and, usually, related actions, the agency newly declares that it no longer has authority it previously asserted. This is an act of agency ‘abnegation’—self-denial of authority—because, without any statutory or judicially mandated change, the agency is denying itself statutory power previously claimed.” (P. 1518.) Examples of statutory abnegation that Buzbee describes include the EPA’s conclusion, under the George W. Bush administration, that it lacked previously asserted statutory authority to regulate greenhouse gases and among many from the Trump administration, its repudiation of the EPA’s Clean Power Plan based exclusively on its view that the CPP “exceed[ed] the EPA’s statutory authority.”

The major impediment to the statutory abnegation strategy is judicial review. Buzbee begins by showing that familiar doctrines of judicial deference to both agency policy decisions and agency interpretations of the statutes they administer might lead an administration to expect that when agencies proclaim that they lack statutory authority to regulate, courts would defer and the agencies would win. This turns out, however, to be a pipe dream. As Buzbee persuasively concludes, “[B]are statutory-abnegation claims often weaken agency power over targets of regulation, reduce agency discretion, are doctrinally disadvantageous, and appear destined in most instances for eventual judicial rejection.” (P. 1514.)

Why judicial rejection? Buzbee illustrates quite effectively that an administration’s deregulatory fervor is likely to be met by reviewing courts doing what they have always done: namely, require agencies to offer well-considered, rational judgments that take into account “the science, data, empirical assessments, and old and new legal reasoning relevant to evaluating the policy shift.” (P. 1515.) These considerations are the bread and butter of judicial review, and administrations ignore them at their peril. Instead, abnegation arguments have often been founded upon “slender legal reasoning, paid little attention to statutory criteria, avoided past rationales, and shown little or no engagement with on-the-ground impacts of the old and new policy choices.” (P. 1515.) As Buzbee so eloquently concludes, “well-established doctrine appropriately rewards actions reflecting respect for multiple sources of political accountability. As courts have found, presidential edicts are inadequate justifications for inexpert agency rollbacks that dodge full engagement with congressional requirements, do not analyze underlying science and data, and fail to grapple with past reasoning and regulatory contestation.” (P. 1563.) For courts to approve the Trump administration’s abnegation arguments, courts would have to abandon these bedrock aspects of administrative law.

Why then, Buzbee wonders out loud, have agencies in the Trump administration been employing “bare statutory abnegation” in so many instances? Although the question invites speculation, Buzbee offers what I find to be a plausible and persuasive account: Presidents and their appointees may be more interested in scoring political points than in actually achieving substantial deregulation. That the Trump administration has been challenging agency action at a record pace may be less salient to the administration’s supporters than dramatic announcements of new deregulatory initiatives such as the repudiation of the Obama administration’s Clean Power Plan, the toughening of criteria for student loan forgiveness, and the rescission of programs extending deferred action on deportation to “dreamers” (undocumented immigrants who arrived in the United States as children). Further, making new rules based on statutory interpretation is likely to be quicker and easier than rulemaking based on a detailed factual and technical record, allowing the administration to score its political points much more quickly.

One virtue of Buzbee’s article is that it anticipates virtually every consideration relevant to understanding and evaluating the statutory abnegation strategy. I want to focus on three of the issues Buzbee discusses. First, Buzbee shows that the Trump administration may have fallen into the same trap that befell the Reagan administration when it rescinded the passive restraint requirement—the temptation to conceive of deregulation as like an agency decision not to act in the first place, which would be reviewed under an exceedingly deferential standard of judicial review. It is black letter administrative law that deregulation by rulemaking is subject to the same standard of judicial review as is applied to agency adoption of a new rule increasing regulatory burdens. Second, one of the most confusing aspects of the Chevron doctrine may also be at work here—the notion that courts do not defer to agency decisions on “pure questions of statutory interpretation.” When an agency’s entire justification for a deregulatory action is that a statute unambiguously requires it, courts are tempted to assume their traditional role as the final arbiters of statutory meaning, i.e. the ever-expanding Chevron step one. Finally, Buzbee establishes that the Fox Television decision that governs judicial review of agency policy changes is excruciatingly ambiguous on the justification required to validate a significant policy change, leading agencies to believe, perhaps erroneously, that they will receive great deference whenever they change course.

In sum, this article is a great read, highly interesting, relevant and enlightening—just what I look for in a Jot-worthy law review article.

Cite as: Jack Beermann, When Agencies Do Not Not Have Statutory Power to Regulate, JOTWELL (April 30, 2020) (reviewing William W. Buzbee, Agency Statutory Abnegation in the Deregulatory Playbook, 68 Duke L.J. 1509 (2019)), https://adlaw.jotwell.com/when-agencies-do-not-not-have-statutory-power-to-regulate/.

Refining Administrative Law’s Lessons for Police

Maria Ponomarenko, Rethinking Police Rulemaking, 114 N.W. U. L. Rev. 1 (2019).

The field of Administrative Law typically focuses on federal agencies, but there are tens of thousands of state and local agencies that administer the law on matters of tremendous consequence. As Nestor Davidson recently put it, the field’s “myopic federal focus obscures a massive, submerged, and surprisingly vibrant domain of administration that exists at the local-government level.” Thinking about these other levels of administration can both illuminate the actual workings of important policy areas and prompt fruitful reflection on recurring administrative-law questions.

Maria Ponomarenko’s thought-provoking new article, Rethinking Police Rulemaking, accomplishes both of these worthy goals. One significant species of local administration, she reminds us, is policing. There are close to 18,000 law enforcement agencies across the country, and they make a range of policy choices of great consequence, including regarding the use of force, stop and frisk, enforcement priorities, and “the persistent creep of the surveillance state.” In Rethinking, Ponomarenko brings fresh perspective to debates over how to oversee police agencies. In particular, she challenges a longstanding idea that an administrative-law mainstay, notice-and-comment rulemaking, is the most promising solution for holding police more accountable.

In one sense, the vintage of this debate reveals that policing has not been overlooked as a species of state and local administration at all; scholars have been discussing the use of notice-and-comment rulemaking for agencies since the 1960s. Yet as Ponomarenko observes, rulemaking is just one tool in the administrative law toolbox. And “despite more than five decades of scholarship devoted to making the case for police rulemaking, there has been very little attention paid to how rulemaking would actually work in practice.” In Rethinking, Ponomarenko gives us reason to believe that rulemaking is a poor fit for policing’s ills and provides a sketch of more promising solutions.

The article begins by synthesizing the substantial existing literature on police rulemaking—both its origins and a more recent “rulemaking renaissance.” Ponomarenko then identifies four types of problems that beset the rulemaking idea. First, and “perhaps the biggest challenge,” police departments are not required to make rules and have little incentive to adopt them. Unlike other rulemaking agencies, which adopt rules to make it easy to govern the public, police enforce rules made by others; they lack authority to alter or even formally clarify the law themselves. The rules we care about for police are the rules they make to govern themselves. And for many reasons, police agencies lack incentives to adopt internal rules on challenging topics (like enforcement discretion, which would likely draw undesired attention).

All of that suggests that if we want police rulemaking, legislatures will have to mandate it. But that leads to a second set of challenges: how could legislatures isolate the policy choices that should be made through a rulemaking process? It’s coherent to talk about rules for decisions that involve concrete steps, like the adoption of new surveillance technologies. But most of the problems associated with policing, like the use of enforcement discretion or force, are part of gradually evolving practices for which it will be hard to specify either the trigger for rulemaking or the desired content of ensuing rules. Third, and related, it may be difficult for legislatures to determine the types of decisions that would benefit from public input, given that most of the prime topics for police rulemaking are internal rules (which, at the federal level, would typically be exempt from the Administrative Procedure Act’s notice-and-comment process).

Finally, and to my mind most fundamentally, Ponomarenko argues it is just not clear that rulemaking will provide the accountability benefits its proponents seek. The problem areas in policing contain few digestible “referendum moments” conducive to public input. Even on discrete questions, the public is at a significant information disadvantage when trying to assess what sorts of police rules will generate desired policy outcomes in communities. A Department of Justice , for example, ultimately concluded that the New Orleans Police Department’s lax secondary employment policy led to poor police service—but that connection is far from self-evident to a lay person. This discussion may resonate for administrative law scholars beyond the policing context, as we consider how much of the critique is not unique to policing. Rethinking’s take on the realistic limitations of public input, for one, resonates with existing concerns about rulemaking itself.

Part III of Rethinking considers alternatives to rulemaking to address governance problems in police departments. At least for large jurisdictions, Ponomarenko proposes “regulatory intermediaries” like police commissions or inspectors general. Building on the agency design literature, Ponomarenko posits that such intermediaries might help to solve the problems of incentives, information, and representative legitimacy that impede police accountability at present. Indeed, a few large cities have Inspectors General for police agencies in recent years.

One particularly praiseworthy aspect of Ponomarenko’s account is her clarity regarding what we know and what we don’t about administrative interventions. Like her analysis of rulemaking, her examination of regulatory intermediaries embraces the complexity and tradeoffs that such interventions might entail. While generally supporting the intermediary approach, she notes that cities that have established regulatory intermediaries have done so without a clear theory of what they should achieve, and that “the reality is that we know far too little about what it would in fact take for such an entity to be effective.” To build such knowledge, Ponomarenko suggests a research agenda for the study of police intermediaries that would assess their ability to (1) generate useful information about shortfalls in police practices; (2) supply the missing incentives to address those shortfalls; and (3) engage with affected stakeholders in reaching decisions.

One final insight in the piece is worth noting. Inspectors general and the like may not be realistic in small jurisdictions. There, Ponomarenko suggests that solutions might come from the state level. States already play a role in regulating policing—commissions on Police Office Standards and Training already set minimum standards for police training—and statewide entities could be given more active roles. A statewide audit bureau, for example, could mirror the work of inspectors general in jurisdictions where it wouldn’t make sense to have one. She grants that “states have not been particularly hospitable grounds for police reform,” but reminds us that prescriptions must be comparative, and “ordinary local politics has not been particularly conducive to effective regulation of policing either.”

Rethinking Police Rulemaking is an important read not just for policing scholars, but also for administrative law and state and local government scholars. For administrative law scholars, the piece’s fresh analysis of the potential and limitations of both rulemaking and regulatory intermediaries deserves attention. For state and local government scholars, the piece provides a deep dive into the available remedies for governance dilemmas that extend beyond policing. Spanning all of these fields, Ponomarenko’s article is an insightful, generative contribution, and I liked it a lot.

Cite as: Miriam Seifter, Refining Administrative Law’s Lessons for Police, JOTWELL (April 2, 2020) (reviewing Maria Ponomarenko, Rethinking Police Rulemaking, 114 N.W. U. L. Rev. 1 (2019)), https://adlaw.jotwell.com/refining-administrative-laws-lessons-for-police/.

The Surface State

Ryan M. Scoville, Unqualified Ambassadors, 69 Duke L.J. 71 (2019).

Administrative law commentary often fixates on the White House—specifically, on presidential directives to agencies. Presidents, however, often wield more control by picking agency leaders, as David Barron smartly pointed out over a decade ago. In the years since, while legal scholars have paid considerable attention to judicial picks, they have largely neglected agency appointees. Ryan Scoville’s Unqualified Ambassadors provides a deeply needed look at the people selected to lead our embassies abroad. Recently, we have seen how confirmed ambassadors can take on critical roles beyond their embassies: President Trump named the confirmed ambassador to Germany, Richard Grenell, acting Director of National Intelligence last month.

Scoville compiled (and has made freely available online) an astounding amount of information on close to 2000 ambassadorial nominees to sovereign countries from 1980 to 2018. These ambassadors serve both as diplomats and as CEOs of U.S. efforts in a particular country. Despite considerable presidential control in this area, Scoville argues that these leaders “remain as vital contributors to a successful foreign policy.” He obtained some information from the Obama Administration, which, starting in 2014, publicly provided “certificates of demonstrated competency” for each ambassadorial nominee. (Congress then codified the practice.) For the remaining 34 years of data, Scoville turned to FOIA requests. He is the rare scholar who has sued to get needed information for his article.

From this trove of certificates and the Congressional Record, Scoville tracked campaign contributions and developed a range of qualification measures (language ability, experience in the country and region, foreign policy expertise from federal government jobs or the military, and leadership skills) for these bilateral ambassadorships. Among many interesting findings, he determined:

  • In his first two years, more than 40 percent of President Trump’s appointees came from outside the Foreign Service. Despite congressional pressure in recent decades for more skilled diplomats, President Trump has appointed more political nominees than each of the other modern presidents (for example, President Obama allotted 30 percent of his appointments to non-career diplomats).
  • Political ambassadors were more than fourteen times more likely than career picks to have contributed campaign funds to their nominating president.
  • While more than a quarter of all political nominees provided no such campaign contributions, about 11 percent of nominees between 2001 and 2016 bundled funds for their nominating president.
  • Donors filled plum assignments in “politically stable and economically developed countries,” mainly in Western Europe.
  • Language ability is in short supply, particularly outside Western Europe, South America, and Africa. Considering non-English speaking countries, only 46 percent of career picks (and just 28 percent of political picks) had some relevant language ability.
  • Within-country experience is also largely lacking, with just 17 percent of all nominees having experience in or involving the assigned country. While in-country experience is low among career nominees (19 percent), it is worse among political picks (12 percent).
  • Regional expertise was much better, however—with 61 percent of all picks having prior regional experience in or involving the relevant region. Here, careerists far outperformed their political counterparts, 86 to 24 percent.
  • From the qualification metrics developed in the article, All but 10 percent had some organizational leadership skills (96 percent of career nominees versus 76 percent of political nominees, where law firm partnerships did not count).

Drawing on the State Department Inspector General’s (IG) reports and other sources, Scoville worries about the “plausible consequences” of more campaign contributors and less skilled ambassadors—including “the United States … encounter[ing] greater difficulty executing foreign relations” and “the marginalization of diplomacy itself.”

To stave off these effects, Scoville proposes several reforms. First, he wants Congress to impose some statutory qualifications for these critical posts. Scoville proposes mandates on language skills and other relevant experience, and a restriction on campaign donors. Unlike many Senate-confirmed jobs with “reasonable and relevant” qualification mandates, the Constitution includes explicit references to ambassadors, raising tricky constitutional questions as to whether statutory mandates are compatible with the Appointments Clause, which the article deftly examines. Of course, donor restrictions raise their own concerns even if imposed, as Scoville suggests, on diplomatic passports or salaries and not on the President’s choices themselves.

Second, Scoville calls for the Senate to change its rules to impose a longer waiting period and to require hearings for ambassador nominations to foreign states. Finally, he demands more transparency. Specifically, he wants the certificates of demonstrated competency to contain more relevant information (and to be disclosed with nominees’ financial forms in one place) and for the State Department’s IG to conduct and publicize regular reviews of these foreign posts.

Interestingly, disconcerting political realities of the appointments process may generate desirable effects in this area. Specifically, the delays in nominating (and confirming) ambassadors should produce more qualified embassy leaders as interim heads typically come from the career foreign service. Comparing acting officials and confirmed leaders raises complex questions, but we may be less worried here.

Ambassadors are just one part of the administrative state. I hope future research will take up the qualifications of other appointees to complement Scoville’s important insights.

Cite as: Anne Joseph O'Connell, The Surface State, JOTWELL (March 10, 2020) (reviewing Ryan M. Scoville, Unqualified Ambassadors, 69 Duke L.J. 71 (2019)), https://adlaw.jotwell.com/the-surface-state/.

It’s “Executive Power,” Not “Executivish Power”

  • Julian Davis Mortenson, Article II Vests Executive Power, Not the Royal Prerogative, 119 Colum. L. Rev. 1169 (2019), available at MLaw Repository;
  • Julian Davis Mortenson, The Executive Power Clause, 167 U. Pa. L. Rev. (forthcoming), available at  SSRN.

Maybe you have been wondering, for one reason or another, just what the “executive power” entails. If so, you are in luck, for Professor Julian Davis Mortenson has an answer for you in two magisterial, deeply researched articles that also happen to be compelling reads: Article II Vests Executive Power, Not the Royal Prerogative, and its sequel, The Executive Power Clause. It turns out that “The executive power meant the power to execute. Period.” (Executive Power, P. 5.)

It will come as no news to readers of this website that, about a quarter of a millennium ago, Article II of the Constitution vested the “executive power” of the United States in the president. And ever since that time, Americans have been arguing about just what this “executive power” entails. In truth, it seems this debate is likely to last as long as the Republic does—which suggests that the debate sometimes says as much about the debaters as their subject.

Much of this debate has revolved around the scope of congressional power to protect the independence of administrators from the president via for-cause restrictions on termination. In recent decades, the core argument against such restrictions, familiar from cases such as Morrison and Free Enterprise Fund, is that they may unduly interfere with the president’s ability to exercise the executive power and to carry out the duty to “take care that the laws of the United States be faithfully executed.” The Supreme Court will take yet another run at this unitary-executive problem during the current term in Seila Law LLC v. Consumer Financial Protection Bureau, in which the Court will decide whether Congress infringed too much on presidential authority by imposing a for-cause restriction on removal of the director of the Consumer Financial Protection Bureau. (Spoiler: Things are not looking so good for the director’s independence.)

This debate regarding agency independence implicates the most obvious element of the “executive power,” which is the power to implement (i.e., execute) legislative commands enacted by Congress or embedded in the Constitution. A reader unscarred by legal training might be forgiven for thinking that Article II’s Vesting Clause grants the president only this enforcement power. This reader would be in good company insofar as there have been presidents, justices, and scholars who have shared this understanding. (Article II, P. 11.) On this view, which Professor Mortenson refers to as the “Law Execution” thesis, the president’s executive power is an empty vessel into which somebody else must pour the content by legislative action. (Executive Power, P. 4.)

Many prominent scholars, as well as a president, some justices, and some legislators, have subscribed to a much more expansive understanding of the executive power as embracing a grab-bag of powers and privileges exercised by the British Crown at the time of the Constitution’s drafting. (Article II, P.11.) This view is commonly referred to as the “Vesting Clause” thesis, but Professor Mortenson calls it the “Royal Residuum” thesis on the ground that this name provides a more accurate description. Adoption of the Royal Residuum thesis yields a considerably more potent and king-like president with powers over national security and foreign affairs that Congress cannot constitutionally override. A president convinced she possesses such powers might, for example, conclude that statutory limits on wiretaps cannot restrict efforts to protect national security or that statutory restrictions on torture are unconstitutional. (Article II, P. 2.) So the choice between the Law Execution and Royal Residuum theses is, one might say, a big deal.

The title of the first of his two companion pieces gives its game away: Article II Vests Executive Power, Not the Royal Prerogative. Professor Mortenson explains that his methodology was “motivated by a metaphor: standing in front of James Madison’s bookshelf and pulling texts off the wall to ask, what was the foundation on which the Founders were building?” (Article II, P. 20.) To this end, his research relied “on more than a thousand contemporaneous published texts by hundreds of commentators, with a research methodology that involved reviewing every instance of the word root ‘exec-’ and reading most of the texts cover to cover with the topic of presidential power squarely in mind.” (Article II, P. 19.) Usual suspects, such as Blackstone, Bracton, Locke, Hobbes, and many others, duly appear, as do a legion of more obscure authors. Based on this research, Professor Mortenson concludes that, at the time of the Constitution’s drafting, political and legal discourse consistently used the term “royal prerogative” to refer to “the basket of non-statutory powers held by the British Crown.” (Article II, P. 5.) The phrase “executive power” was consistently used to mean “the narrow but potent authority to carry out projects defined by a prior exercise of the ‘legislative power.’” (Article II, P. 5.)

One compelling example of the evidence for Professor Mortenson’s case comes from Blackstone’s listing of the elements of the “King’s Prerogative.” The “supreme executive power” of enforcing the laws is the first royal authority. (Article II, P. 53 (citing Blackstone, Commentaries, Ch. 3).) The King’s Prerogative also, however, contains about forty other powers, which include such matters as sending and receiving ambassadors, making treaties, erecting lighthouses, vetoing legislation, and many others. Accordingly, “[t]he royal prerogative, as it was understood in the Founding era, thus comprised a long list of separate and highly particularized legal authorities within a well-understood framework of English constitutional law.” (Article II, P. 57.) This list was composed of “‘stuff the King can do,’ so long as Parliament didn’t tell him otherwise.” (Article II, P. 57.) The “executive power” to enforce the law was just one especially important element from this long list.

The second of Professor Mortenson’s articles, The Executive Power, shifts focus from the views contained in Madison’s bookshelf to the views of the drafters and ratifiers of the Constitution. This effort involved “exhaustive review of every instance of the word root ‘exec-’ in three major collections spanning millions of words: the 29-volume Documentary History of the Ratification of the Constitution, the 34-volume Journals of the Continental Congress, and the 26-volume Letters of Delegates of the Continental Congress.” (Executive Power, Pp. 8-9.) Based on this research, Professor Mortenson concludes that the Founders unanimously understood the “executive power” as an “empty vessel” that is “subsequent and subordinate” to legislation. (Executive Power, P. 60.)

He also tells a coherent story of how this understanding of the “executive power” fits the overall constitutional project. By the mid-1780s, the Confederation was near collapse due to its lack of sufficient executive authority, and an urgent need to fix this fatal flaw was a consistent theme of the Constitution’s drafting and ratification. (Executive Power, P. 15.) The answer to this problem turned out to be, of course, the office of the presidency, vesting in the president the “executive power” to enforce the laws. This power, though subordinate to and confined by the legislative authority, was regarded as enormously consequential and dangerous. Proponents of the Constitution therefore strained to reassure people that the president was not a king by some other name, emphasizing that the former had fewer, more constrained powers than the latter. (Executive Power, P. 72.) Professor Mortenson acutely observes that, given the strongly anti-monarchical views of the day, “it would be deeply weird to imagine that the Framers snuck in—much less that the Ratifiers approved—an amorphous mass of royal power that no English monarch has claimed since James II.” (Executive Power, P. 72.) The royal prerogative is a pretty big elephant to stuff into Article II’s executive power mousehole.

Professor Mortenson concludes that “[a]s a historical matter, the competition between the royal residuum and law execution interpretations of the Executive Power Clause isn’t close.” (Executive Power, P. 88.) The latter commands essentially unanimous support in the historical materials; the former rests on “an interpretation whose proponents have yet to identify a single sentence of direct affirmative support among the millions of words contained in our records of framing and ratification.” (Executive Power, P. 88.) Still, I am quite sure that proponents of an expansive understanding of executive power will have quite a bit to say in response to Professor Mortenson’s extraordinary articles—i.e., this is not the sort of debate that ends. It will be very interesting to read these responses.

The preceding paragraph sure reads like a closing paragraph, but I have just a couple more observations to make that I didn’t manage to weave in before now. First, both Article II and The Executive Power Clause are delights to read. The text is wonderfully clear and at times downright breezy; the deep research is always handy in the extremely extensive footnotes. Also, Professor Mortenson’s work has engendered a remarkable amount of popular attention, with discussions appearing in venues such as The Atlantic, Slate, and the Lawfare Podcast. It seems like the scope of executive power is on a lot of people’s minds. If you would like to hear about this research while, say, gardening or on a long drive, you might check out The Lawfare Podcast: Julian Mortenson on “The Executive Power” or Amicus With Dahlia Lithwick: Redefining the Executive Power.

Cite as: Richard Murphy, It’s “Executive Power,” Not “Executivish Power”, JOTWELL Feb. 21, 2020 (reviewing Julian Davis Mortenson, Article II Vests Executive Power, Not the Royal Prerogative, 119 Colum. L. Rev. 1169 (2019) and Julian Davis Mortenson, The Executive Power Clause, 167 U. Pa. L. Rev. (forthcoming)), https://adlaw.jotwell.com/ its-executive-po…xecutivish-power/.

Don’t Forget the States

Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration, 98 Tex. L. Rev. 265 (2019).

In 2001, Elena Kagan published Presidential Administration—her now well-known account of presidents’ increasingly aggressive efforts to control agencies’ regulatory decisions. In the nearly two decades since her article appeared in the pages of the Harvard Law Review, presidents have exerted more and more control over agencies. Indeed, in recent years, the entrenchment of presidential administration has been evident simply by reading the nation’s news headlines. In 2015, for example, the New York Times trumpeted that “Obama Announces New Rule Limiting Water Pollution,” and then in 2019, the same paper announced: “Trump Administration Rolls Back Clean Water Protections.” Similar headlines about other presidentially influenced regulatory reversals abound.

In response to the entrenchment of presidential administration, many scholars have written about potential counterweights that might come from various federal actors, such as the federal courts, Congress, or the executive-branch bureaucracy. Largely missing from this scholarly discourse, however, has been a focus on the important role that the states can and have played in both furthering—and counteracting—presidential administration. In her forthcoming article titled Administrative States: Beyond Presidential Administration, Professor Jessica Bulman-Pozen seeks to remedy this scholarly void. Specifically, Professor Bulman-Pozen seeks to bring the states into the modern day account of presidential administration.

Although Professor Bulman-Pozen makes many important contributions in her article, I found three of her assertions to be the most thought provoking. First, citing to the Supreme Court’s recent Census case, Professor Bulman-Pozen asserts that the federal courts have accepted presidential control as not only permissible but also legitimating. Yet, at the same time, she also argues that the courts have expressed an interest in limiting the power enjoyed by the administrative state. According to Professor Bulman-Pozen, if the courts continue to treat presidential control as legitimate while at the same time limiting agencies’ power to adopt rules, then the zone in which presidents can direct agencies’ rulemaking activities will shrink. And, as a result, the president may need to look outside the federal executive branch to advance her agenda. It is here that Professor Bulman-Pozen argues that the states could play a big role by helping presidents to achieve ends that they could not achieve through federal agency action alone.

On this first point, I think it remains to be seen whether Professor Bulman-Pozen is correct in her assertion that the courts are likely to continue to treat presidential administration as legitimate. Here, for example, I cannot help but think of the spate of recent high-profile litigation, such as the transgender troop litigation and deferred action immigration litigation, in which lower federal courts seemed to treat presidential involvement as a tainting, not a legitimizing, factor. Nonetheless, the broader point raised by Professor Bulman-Pozen—that the president may look to the states if the courts limit what presidents can achieve through the federal regulatory state—seems absolutely correct.

Second, Professor Bulman-Pozen argues that “[i]ncorporating states into understandings of presidential administration reveals not only additional resources for presidential policymaking” but “also a set of actors who may oppose the President’s choices.” (p. 39) In other words, the states can collaborate with a president and thus help to solidify a president’s policies, or the states can push back against a president’s policies. Indeed, the very same state might be seen as doing both. For example, “the same states that are providing an afterlife for Obama-era policies are actively rejecting President Trump’s administrative decisions.” (p. 54) On this point, Professor Bulman-Pozen also seems quite clearly correct: The states need to be thought of both as a resource that presidents can use to further their own policy agendas and as a potential tool of opposition to be used by those who seek to challenge presidential policies.

Third, Professor Bulman-Pozen suggests that states’ efforts to support—or to push back against—presidential policies may well bring greater accountability and representativeness into our governmental system. For example, California legislation that adopts net neutrality rules or California legislation limiting cooperation with federal immigration enforcement is more politically responsive to the will of the people than policies adopted by unelected administrative agencies at the federal level. In addition, such legislation helps to further pluralism. Here too, I agree with Professor Bulman-Pozen: When policies that had been simply a matter of executive action at the federal level become a matter of legislation at the state level, greater political representation flows. Nonetheless, in focusing primarily on state legislation in this particular article, I think Professor Bulman-Pozen downplays to some degree how the states may turn to non-legislative modes of supporting or attacking presidential policies, such as litigation, which will not necessarily ensure political accountability.

Thanks to cases like Massachusetts v. EPA, the states can and often do establish standing to challenge federal executive policies, and in an era of nationwide injunctions, a single state can succeed—by appealing to the unelected federal judiciary—in blocking a given presidential policy from being implemented anywhere in the nation, not just simply within that one state. As a result, Professor Bulman-Pozen may be a bit too quick to suggest that adding states into the story of presidential administration helps to ensure greater political accountability and electoral responsiveness. To the extent that a state’s Attorney General is elected (as is often the case), litigation pursued by a given state may help to further accountability and political responsiveness from the perspective of that one state’s voters. Yet it might do so at the expense of the preferences of the voters in the country as a whole. In light of this, it seems to me that whether state involvement does or does not help to ensure greater political accountability (similar to whether it does or does not help to bring about more durable policies) depends largely on the specific tool used by the states. Although legislation is a powerful tool at states’ disposal, it is not the only tool, and it is important to consider whether different tools (e.g., state-led litigation versus state legislation) might carry with them different benefits and costs.

In short, how states choose to both further and oppose presidential policies is an area to watch moving forward. Regardless of how state-level involvement in presidential policymaking plays out in the future, Professor Bulman-Pozen’s article does an excellent job of reminding those who are fixated on presidential power not to forget the states at this moment in time. For all who are interested in issues of presidential power and agency policymaking, her article is well worth a read.

Cite as: Kathryn Watts, Don’t Forget the States, JOTWELL (February 5, 2020) (reviewing Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration, 98 Tex. L. Rev. 265 (2019)), https://adlaw.jotwell.com/dont-forget-the-states/.

When Agencies Sue Each Other

Bijal Shah, Executive (Agency) Administration, 72 Stan. L. Rev. __ (forthcoming), available at SSRN.

Independent agencies are subject to a host of interesting academic debates, including debates that go to the heart of what makes an agency independent and which agencies qualify. Most of those debates focus, however, on the relationship between independent agencies and the President. Some of them explore the relationship between independent agencies and the public, the courts, or Congress. But the horizontal examination of the relationship between independent agencies and executive agencies has gone under-examined.

In a meticulous accounting, Professor Bijal Shah documents one fascinating aspect of that relationship in her forthcoming article, Executive (Agency) Administration. There, she focuses on litigation brought by the Justice Department (DOJ) on behalf of executive agencies against independent agencies. This litigation dynamic is unusual, but as she shows, not unheard of; her painstaking gathering of all such cases since 1900 yielded about 175 cases. What is more, these cases are incredibly illuminating. The vast majority fall into one of three categories. First, when an independent agency adjudicates a matter against an executing agency as a party—typically labor-related—these cases serve as the means for judicial review. Second, when independent agencies assert power that interferes with executive agencies’ own authority, lawsuits serve to protect executive agencies’ purview. And third, there is a smaller category of cases where DOJ has challenged independent agency decisions to approve certain antitrust matters.

Even just identifying this body of litigation and describing how it has evolved over time contributes meaningfully to our understanding of the relationship between executive and independent agencies. This sort of work—using original data to illuminate a previously unexamined aspect of administrative law—is gaining traction in the field, and with good reason.

Beyond these insights, however, Professor Shah goes much further and demonstrates how this litigation actually forms a powerful tool of executive control over independent agencies. While Shah explains that sometimes these decisions are made at the presidential level, and thus can be categorized as an attempt to exert presidential influence over independent agencies along the lines of now-Justice Kagan’s “presidential administration,” more often the decisions are made by career DOJ staff at the behest of executive agencies as their clients. These instances mark a very different kind of balance of power between executive and independent agencies.

And the executive agencies are very successful in this litigation, winning around two-thirds of the cases they bring. This flips traditional administrative challenges on their head; typically defending agencies win about two-thirds of the time. Indeed, as Professor Shah explains, this phenomenon is one example of judicial review as an ex post check on independent agencies’ decision-making, where ex ante political checks are not possible. Some of her data even suggest that the quality of independent agency decision-making may truly be improved by these checks—independent agencies’ least defensible decisions are overturned routinely in this context.

Though there are many other aspects of Professor Shah’s work that are notable, including implications for judicial standards of review of independent agency actions, I found the most salient her observations about implications for aggrandizement of presidential control over independent agencies. As she says, litigation on behalf of executive agencies against independent agencies can easily be harnessed for the political aims of the president. Although some past examples suggest court skepticism in cases where such goals are blatant, the changing nature of the presidency and the Supreme Court may, in her view, suggest more openness to that strategy in the future.

Her evidence is convincing, and in some ways quite troubling. In particular, Justice Gorsuch recently rejected the NLRB’s interpretation of its own organic statute in favor of DOJ’s views on the Federal Arbitration Act, a statute of general applicability where DOJ has no special expertise. And now-Justice Kavanaugh, then a D.C. Circuit judge, wrote a panel decision and a dissent in the en banc decision that later reversed it, taking the position that certain kinds of for-cause removal restrictions are unconstitutional, demonstrating some appetite for additional presidential control over independent agencies. If these trends hold, and if the current or future administration shows a willingness to engage the courts for political ends, we may see this phenomenon gain traction.

Professor Shah’s ability to shed light on an under-appreciated aspect of administrative law is a refreshing addition to the literature that I am certain will be the beginning of much more consideration of the topic in the future. I personally believe that her troublesome predictions about the future of independent agencies’ independence will prove both prescient and problematic for administrative law.

Cite as: Margaret Kwoka, When Agencies Sue Each Other, JOTWELL (January 6, 2020) (reviewing Bijal Shah, Executive (Agency) Administration, 72 Stan. L. Rev. __ (forthcoming), available at SSRN), https://adlaw.jotwell.com/when-agencies-sue-each-other/.

Standing In Front of the Refrigerator

Jeffrey A. Pojanowski, Neoclassical Administrative Law, 133 Harv. L. Rev. __ (forthcoming 2019), available at SSRN.

“It is hard to sketch a river while sailing midstream,” says Jeff Pojanowski, as he begins an article that does a remarkable job of doing just that. Pojanowski’s forthcoming article offers an illuminating taxonomy of a vast array of administrative law theory and scholarship concerning the question of judicial review of agency action, which he organizes into three overarching frameworks or models. After sketching the river with aplomb, Pojanowski introduces us to a fourth model—“neoclassical administrative law”—and explains what the neoclassical framework would offer that earlier models lack. There, the image that might come to mind is not so much gazing at a river, but staring at a refrigerator. It is hard to decide what to have for dinner while standing in front of the refrigerator. A buffet’s worth of pretty good leftovers is probably sitting right there—but sometimes, to really hit the spot, you just have to roll up your sleeves and make something new anyway.

Pojanowski begins by noting the well-known “cracks” in the “comfortable, overlapping consensus” (P.3) of administrative law, including from academics and from the Court. Conventional administrative law doctrine is “under fire for being both too timid and too intrusive.” (P. 4.) Something new seems needed—but before getting to that new framework, Pojanowski presents a detailed sketch of three extant models.

This part of the article organizes an enormous range of administrative law doctrine and theory into three ideal-type frameworks: “administrative supremacy”, “administrative skepticism”, and “administrative pragmatism.” The administrative supremacists, in Pojanowski’s telling, display “an unapologetic embrace of the administrative state” (P. 7), advocate deference to agency interpretations “across the board” unless “Congress clearly did not want the court to defer” (P. 9), and resist hard-look review as “unwise and illegitimate.” (P. 11.) The administrative skeptics are the polar opposite: they reject Chevron and Auer (P. 15), demand strict adherence to procedural constraints established by positive law (P. 16), and urge the revival of a robust non-delegation doctrine. (P. 17.) Between these two camps sit the administrative pragmatists—the “largest and…least precise category.” (P. 18.) Pragmatists calibrate judicial deference to agency legal interpretation depending on the context (P. 19); they embrace a “mixture of supervision and deference” that attempts to curb agency discretion, but not overmuch (Pp. 20-21); and they endorse the balance struck by the administrative common law of hard-look review. (P. 22.) As Pojanowski usefully summarizes the three approaches, administrative supremacy “emphasizes legislative supremacy vested in agencies via congressional delegation”; administrative skepticism “emphasizes the rule of law, insisting that courts are the guardians of legal interpretation while regarding non-congressional lawmaking as ultra vires” and administrative pragmatism “seeks to integrate both values into a judicial supervised and modulated administrative state.” (P. 23.)

These three frameworks would seem to so exhaust the spectrum of possible responses to the administrative state that there could not be much room left over for a fourth approach. Yet Pojanowski then turns to the task of contending that there is indeed a fourth way—neoclassical administrative law. The neoclassicist, he explains, combines the skeptic’s approach to questions of legal interpretation with the supremacist’s approach to questions of policymaking discretion. The neoclassicist would reject Chevron deference as inconsistent with both the judicial role and the Administrative Procedure Act (APA) and would reject the general presumption that statutory ambiguity is an implicit delegation of interpretive authority to the agency. (Pp. 25-26.) Courts would apply a strong “Step One,” while also recognizing that certain types of statutory provisions (e.g., a requirement for an “adequate margin of safety”) are not amenable to analysis through formal legal tools and instead are delegations to agencies. (Pp. 27-28.) On policy questions, the neoclassicist would thus leave agencies great leeway: instead of vetting agency policy choices via hard-look review, a neoclassicist court would only “police the outer bounds of reasonableness when it comes to agency policymaking” (P. 31) in the style of rational-basis review. But even as judicial review of pure policy would become more accommodating, making policy in the first place would become more difficult: the neoclassicist might require that agencies return to formal rulemaking by overturning Florida East Coast Railway—a shift that Pojanowski acknowledges would “certainly bring a shock to the administrative system.” (P. 30.)

Pojanowski then turns to elaborate the theoretical commitments of the neoclassical vision for administrative law and to explain how that vision brokers a compromise between the “competing principles of legislative supremacy and the rule of law.” (P. 39.) The neoclassicist calls for renewed focus on the APA’s original meaning and of governing organic statutes. (P. 35.) The neoclassical approach embraces formalism and originalism in statutory interpretation, and eschews purposivism, dynamic statutory interpretation, and the legal realism of the post-New Deal Legal Process era. (P. 34.) But perhaps the chief selling point of the neoclassical framework is what it would not do. The neoclassical stance, says Pojanowski, would avoid a full-frontal collision between current administrative law and the constitutional originalism that would “[b]low[] up the administrative state with Hamburgerian dynamite.” (P. 49.) Instead, he notes, the neoclassicist would accept that the “constitutional nettle” is “too sharp to grasp today” (P. 52), and that the Court “lacks the institutional capital and perhaps even the capacity to turn the aircraft carrier around on a dime.” (P. 50.) In fact, Pojanowski explains, it is “[t]his tendency to avoid large-scale constitutional engagement with the administrative state…[that] puts the ‘neo’ in neoclassicism.” (P. 36.)

Let us return to our refrigerator. As Pojanowski is careful to signal throughout, the neoclassical framework is not a wholly new meal cooked up from wholly new ingredients. It uses many ingredients that were already in the refrigerator. But it then recombines, adds to, and plates these ingredients in a way that the current Court might find very appetizing. As Pojanowski notes, the Court’s “modest constitutional holdings have not tracked its anxious rhetoric about the administrative state.” (P. 33.) Pojanowski may well prove correct that the neoclassical framework, or something close to it, “may become the equilibrium resting point” (P. 33) for a “legal formalist” Supreme Court that “accepts the necessity, or at least the ongoing existence, of the administrative state Congress has constructed.” (P. 53.) There are certainly inklings of the neoclassical approach in Justice Gorsuch’s dissent in Gundy v. United States, as well as in the fractured opinions in Kisor v. Wilkie—both of which were decided after Pojanowski first posted his draft article, and which I hope the final published version will discuss.

In short, like his essay Without Deference, this article displays not only Pojanowski’s deft ability to map administrative law as it is, but also his talent for imagining and explaining administrative law as it might come to be in not too long from now. Even if you do not generally devote much time to poking around in the refrigerator of administrative law theory—or perhaps especially if you do not—Pojanowski’s article is thus well worth a read, as it offers a basis for anticipating what the Court may serve up to us in the coming years.

Cite as: Mila Sohoni, Standing In Front of the Refrigerator, JOTWELL (November 26, 2019) (reviewing Jeffrey A. Pojanowski, Neoclassical Administrative Law, 133 Harv. L. Rev. __ (forthcoming 2019), available at SSRN), https://adlaw.jotwell.com/standing-in-front-of-the-refrigerator/.

Congressional Administration

Rebecca Ingber, Congressional Administration of Foreign Affairs, 106 Va. L. Rev. __ (forthcoming, 2019), available at SSRN.

In Congressional Administration of Foreign Affairs, Rebecca Ingber directly challenges deep-seated assumptions about presidential power in the field of foreign affairs. Her account should prompt a rethinking of reigning assumptions about presidential power over administration of domestic affairs as well.

Ingber demonstrates that Congress can shape the President’s foreign policy and national security policies without constraining the President directly or dictating the substantive terms of foreign policy, but rather by structuring and reorienting the decision-making processes and relative powers of executive branch actors. She argues that Congressional input on matters of foreign affairs is normatively desirable, but there are legal, constitutional, and political hurdles to Congress substantively mandating foreign policy. Congressional administration avoids these hurdles and, according to Ingber, actually can be more effective than direct confrontation with the President.

Ingber defines Congressional administration as “the management and manipulation of internal executive branch decisionmaking processes for the purpose of advancing a substantive agenda.” (P. 4.) Congress uses many tools to “administer” foreign affairs, including: agency design; procedural requirements; designation of decision-makers within the executive branch and definition of their employment status and relationship to the President; earmarking of appropriations to agencies and offices; and strategic requests for Congressional testimony by particular executive branch officials at particular moments during the policy-making process. Using these tools, Congress can force executive branch officials to make decisions they might wish to avoid, delay disfavored decisions by stoking internal executive branch tensions, or place a thumb on the scale in favor of Congress’ preferred outcomes by advantaging a particular set of actors engaged in intra-executive branch conflict.

Ingber notes that intra-executive branch conflict is key to the success of Congressional administration strategies to influence Presidential foreign policy prerogatives. These strategies depend largely on Congress’ ability to aggrandize the power of executive branch officials who flatly disagree with the President’s policy preferences or who bring a different set of policy orientations and substantive expertise to bear on certain foreign policy problems. So, for instance, Congress thwarted President Obama’s pledge to close Guantanamo Bay by leveraging opposition to the policy among many Department of Defense officials. Similarly, Congress sometimes empowers State Department officials to weigh in on certain foreign policy decisions in order to ensure consideration of perspectives focused on the soft power of diplomacy rather than hard military power.

Ingber provides several examples to illustrate her arguments. She recounts how Congress maintained the funding levels for the Department of State, including specific specialized offices within the Department, in direct opposition to President Trump’s requests to cut their funding. Ingber explains this maneuver as Congress maintaining “fora for particular types of decisionmaking and ensuring that they remain populated with personnel devoted to a particular mandate.” (P. 19.) She argues that this is an effective means of controlling presidential prerogatives because it “creates path dependencies and presumptions that favor continuity of particular policy objectives and hurdles to significant change.” (P. 19.)

She also describes the process controls enacted by Congress to constrain President Obama from closing the military prison at Guantanamo Bay. Congress attached riders to defense appropriations bills containing onerous procedural restrictions on the President’s ability to transfer detainees from facilities abroad. Among the requirements was a mandate that no detainee could be transferred to a foreign country unless the Secretary of Defense certified that the government of the destination country could provide adequate assurances that the individual would not be able to take any action to threaten the United States, its citizens, or its allies in the future. For obvious reasons, the Secretary of Defense was loathe to publicly make such certifications. This procedural requirement effectively halted Guantanamo transfers even before Congress took more pointed action to prohibit funding for transfers or for closure of the prison.

Based on this analysis, Ingber concludes: “The fact that the President usually ‘wins’ in foreign affairs does not mean that the position the President ultimately chooses to take is preordained.” (P. ii.) Diverse components of the executive branch are engaged in questions of national security. Different agencies and actors have different and often conflicting sets of priorities, expertise, and biases. These must coalesce into a single executive branch position. Consequently, the decision-making context, the decision-making process, and the distribution of authority among decision-makers shape the position that the President ultimately takes. And Congress has many tools to control all of these things.

Of course, for any of this to work, one must take seriously the specific statutory delegations of authority Congress makes to designated officials. If executive branch officials with decision-making authority are seen as mere arms and eyes of a unitary executive who can order them to reach the President’s preferred outcomes, Congress’ careful calibration of decision-making processes amounts to little more than tinkering. Ingber recognizes that the President has broad authority over administration generally and particularly over the foreign policy functions of the executive branch. Yet, she insists that officials within the foreign policy bureaucracy maintain some independent decision-making authority. Indeed, Ingber contends that Congress often allocates national security decision-making in ways calculated to remove certain decisions from political control.

This is, perhaps, the most provocative claim in the paper, largely because it is not clear that this is true in the realm of domestic administration. In the realm of domestic affairs, the President has long claimed the prerogative to direct executive officials exercising delegated statutory authority to reach specific policy outcomes, and there is broad scholarly, political, and jurisprudential consensus that the President may do so when the ostensible aim is to ensure that administrative policies maximize welfare based on cost-benefit criteria. Moreover, in the realm of domestic affairs there is an institutional apparatus, centered in the Office of Information and Regulatory Affairs, effectively equipped to ensure that the President’s policy priorities are achieved. Taken together, the legal endorsement of executive regulatory review and the powerful institutional apparatus for effectuating it significantly constrain the ability of agency officials implementing domestic policy to resist the President’s policy demands. Could it be that the President enjoys greater power over administration in the realm of domestic affairs than in the realm of foreign affairs?

There are many reasons to doubt that this should be the case. Presidential primacy is well established in the realm of foreign affairs for a variety of reasons that have no applicability in the domestic sphere. First, the President’s unfettered and real time access to intelligence resources affords an information advantage in the realm of foreign affairs. Not so in the administration of domestic policy. The President is unlikely to have an expertise advantage in the regulation of, say, the environment or U.S. capital markets. Second, in the realm of foreign affairs, the President has the institutional advantage of being able to speak with one voice on the world stage. This particular institutional competence has no relevance to the administration of domestic policy. Third, as a practical matter, the President often has the resources to act unilaterally in defiance of substantive Congressional constraints on foreign policy—for instance, by mobilizing the military or entering into executive agreements. Such power is lacking in domestic administration (or, at least, has yet to be broadly validated by the courts).

Thus, it is curious to contemplate that the President might actually exercise less power over the foreign policy bureaucracy than over the domestic policy bureaucracy. Ingber could go further to explain this seeming paradox in the paper. However, I do not believe that this puzzle ultimately undercuts her argument. Rather, it places the onus on proponents of presidential administration in domestic affairs to explain how it could be that we can tolerate independent bureaucratic decision-making in the realm of foreign policy but not in the realm of domestic policy. Why not Congressional administration for all affairs?

Cite as: Jodi Short, Congressional Administration, JOTWELL (October 18, 2019) (reviewing Rebecca Ingber, Congressional Administration of Foreign Affairs, 106 Va. L. Rev. __ (forthcoming, 2019), available at SSRN), https://adlaw.jotwell.com/congressional-administration/.

I’m Just a Presidential Directive

Tara Leigh Grove, Presidential Laws and the Missing Interpretive Theory, 168 U. Pa. L. Rev. __ (forthcoming, 2020), available at SSRN.

On the first day of Legislation and Regulation, I kick off class by showing the classic Schoolhouse Rock music video I’m Just a Bill. We then spend the first half of the semester exploring how the legislative process actually works today and how that process affects statutory interpretation. At the start of the second half of the course, I show How a Bill Does Not Become a LawSaturday Night Live’s witty take on the Schoolhouse Rock classic based on President Obama’s deferred-action immigration directives. We then spend the rest of the semester exploring how the regulatory process actually works and how that process affects regulatory and statutory interpretation.1

Although we spend some time on what then-Professor Elena Kagan coined “presidential administration,” the regulation half of the course focuses on how federal agencies regulate and how courts review such regulatory activities. In that sense, we might be stuck a bit in Dan Farber and Anne Joseph O’Connell’s “lost world of administrative law.” After all, presidential directives—like President Obama’s executive actions on immigration—play a substantial role in the modern administrative state, and even more so, it seems, in both the Obama and Trump administrations. Yet we know little about the process by which these presidential directives are made, much less how they should be interpreted. Until now. In Presidential Laws and the Missing Interpretive Theory, Tara Leigh Grove sheds important empirical and theoretical light on how presidents make directives and what that means for interpretive theory.

Grove’s bottom line is that, whatever the merits of the textualism-purposivism debate in statutory interpretation, when it comes to interpreting presidential directives, “Article II and the distinct institutional setting of the presidency point toward textualism.” (P. 3.) It is important to note that Grove broadly defines presidential directive as any presidential action that “requires, authorizes, or prohibits some action by executive officials.” (P. 6.) And, for Grove, textualism means:

[J]udges must abide by the public meaning of the text of a directive, understood in context. The relevant context encompasses, at a minimum, the text and structure of the directive at issue, other directives issued by the same administration (and likely those of past administrations), as well as linguistic conventions from legal terms of art, dictionaries, and colloquial speech.

(P. 4.) Part IV of the article advances a powerful case for this textualist approach to interpreting presidential directives, and it will no doubt spark a vibrant debate in an interpretive context lacking any serious scholarly conversation. These are important contributions to the administrative law, legislation, and legal interpretation literatures.

But my favorite part of the article comes earlier—when Grove explains how presidential directives are actually developed. In Part III, Grove develops an Article II-based theory for presidential directives. First, in Part III.A, she argues that Article II’s Opinions Clause gives the President substantial discretion in fashioning the process for making presidential directives—a novel use of a constitutional provision that has largely been left in the literature to debates about unitary executive theory and presidential supervision of the regulatory state. Grove, however, concludes that “the text of the Clause suggests that the information-gathering function may be its primary purpose.” (P. 16.) That function, she argues, fuels the modern process for presidential directives.

In Part III.B, Grove details that modern process—a process that “takes place almost entirely behind closed doors; the details are not publicly available for many years (if at all).” (P. 19.) In addition to drawing on the political science literature, Grove conducted interviews with numerous former executive branch officials. The list is impressive, including (from footnote 8): former Trump White House Counsel Don McGahn, Obama OLC DAAG John Bies, Obama Staff Secretary Raj De, Obama Deputy Counsel Chris Fonzone, Bush 43 Solicitor General Paul Clement, Bush 41 White House Counsel C. Boyden Gray, Bush 41 OLC AAG Michael Luttig, and Bush 41 Associate White House Counsel Lee Otis.

Every word of Part III.B is worth reading—and reading again. This is previously uncharted territory in the legal literature. The overriding theme is that federal agencies play a critical role in the presidential-directives drafting process. Much like agencies’ role in the legislative drafting process, as I have detailed elsewhere, there are two distinct paths for agency involvement in the directives drafting.

First, federal agencies approach the White House to ask the president to adopt a policy via presidential directive that binds other agencies. That process is highly proceduralized at the White House’s Office of Management and Budget (OMB), just as it is in the legislative context when an agency wants a presidential administration to advance the agency’s substantive policy agenda in Congress.

Second, the White House reaches out to federal agencies to solicit their input on proposed presidential directives. Like its counterpart “technical drafting assistance” in the legislative context, this process is much less formal and proceduralized. Yet, in either context, the agency-OMB drafting process is substantial: “Former officials suggested that many directives go through at least three drafts—and three rounds of comments—before leaving OMB.” (P. 21.)

In both contexts, however, Grove finds that “direct presidential involvement is the exception rather than the rule”: “Agency officials debate most directives among themselves—with the oversight of OMB—and the President does not get involved until a final draft is ready for him to sign.” (P. 21.) Again, this is remarkably similar to the role of federal agencies in the legislative process, where agency and congressional staff work out the drafting details, with members of Congress generally not involved until the legislation is ready to be formally introduced, marked up, or even voted on.

Once the agency has finalized its review, Grove explains, the draft presidential directive goes through the “form and legality” review at the Justice Department’s Office of Legal Counsel (OLC). Once such review is finalized, the White House Staff Secretary takes over—to review the directive and ensure all “relevant constituencies” at the White House approve. Only once the Staff Secretary is comfortable with the text of the draft directive does she forward it along for the president’s signature.

In other words, the president typically is not aware of the details of any of the negotiations, prior drafts, or internal debates about the directive. Instead, Grove reports, the president generally only receives: “(1) the text of the directive; (2) OLC’s ‘form and legality’ certification; and (3) a memo (typically prepared by the Staff Secretary or another White House official) summarizing the interagency consultation process and any remaining points of disagreement—with a focus on ‘high-level objections’ from Cabinet members or other top officials.” (P. 22.)

After detailing this process, Grove goes through a number of examples, notes deviations in the process, and explains how the process works for other presidential directives (that are not labeled “executive orders” or “proclamations”). Grove concludes that “officials repeatedly reaffirmed that virtually all directives go through some type of agency review” and that the process can be quite “tedious” and time consuming. (P. 27.)

This short summary does not do justice to the insights Grove uncovers about the process of drafting presidential directives. Unsurprisingly, the process is certainly more complicated than Saturday Night Live made it seem. Grove rightly focuses the normative and theoretical payoff on how this process should affect the interpretation of presidential directives. But the insights she has uncovered have important implications for administrative law and regulatory practice as well. With the increasing use of presidential directives, Grove’s pathbreaking account will certainly not be the last word on the subject.

  1. For more on structuring the 1L Leg-Reg course, check out my essay with Dakota Rudesill and Dan Tokaji. This essay was part of a terrific Journal of Legal Education symposium issue on the course—a must-read issue for anyone who teaches administrative law, legislation, or Leg-Reg as well as for law schools considering to add such a course to the first-year curriculum.
Cite as: Christopher Walker, I’m Just a Presidential Directive, JOTWELL (September 27, 2019) (reviewing Tara Leigh Grove, Presidential Laws and the Missing Interpretive Theory, 168 U. Pa. L. Rev. __ (forthcoming, 2020), available at SSRN), https://adlaw.jotwell.com/im-just-a-presidential-directive/.