Yearly Archives: 2020

The Surface State

Mar 10, 2020 Anne Joseph O'ConnellAdd a Comment

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.

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

Feb 25, 2020 Richard MurphyAdd a Comment

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.

Don’t Forget the States

Feb 5, 2020 Kathryn WattsAdd a Comment

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.

When Agencies Sue Each Other

Jan 6, 2020 Margaret KwokaAdd a Comment

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.