Recently, for whatever reason, I found myself thinking that it would be helpful to read something that could help me order my scattered thoughts about presidential control of regulatory power. Maybe because of all the executive orders. Fortunately, I ran across just the thing, Presidential Regulation, by Professors Timothy Meyer & Ganesh Sitaraman, which provides a wonderfully illuminating account of the nature, history, implications, and likely future of, well, presidential regulation.
Meyer and Sitaraman explain that presidential regulation “takes place when the President relies on his own powers—whether statutory, constitutional, or a combination thereof—to regulate the U.S. economy in ways not explicitly contemplated or directed by Congress.” (P. 807.) Presidential regulation is thus distinct from “presidential administration,” a la Justice Kagan, which involves presidents “shaping and taking credit for agency actions.” (P. 809.) Rather, presidential regulation involves direct exercise of powers delegated to the president by the Constitution or Congress.
Two other characteristics of presidential regulation help explain why presidents might prefer it. One is that a complex set of doctrines limits the availability and scope of judicial review of presidential, as compared to agency, action. Courts are therefore less likely to muck up presidential regulation. Another is that agency actions are subject to a range of procedural requirements, imposed by Congress or the White House, that do not burden presidential actions. Most notably, the Administrative Procedure Act, which generally requires notice-and-comment procedures for agency legislative rulemaking, does not apply to presidential action. The upshot is that considerably less “administrative law” impedes presidential regulation.
Meyer and Sitaraman provide a brief historical account of the “progenitors” of presidential regulation. Early examples include the regulation of trade with combatants, including President Washington’s Proclamation of Neutrality and President Lincoln’s blockade of Confederate ports. (P. 825.) Later examples focus on presidents’ exercise of statutory powers to set tariffs starting in the nineteenth century and their extensive exercise of economic emergency powers in the twentieth. Congress has enabled the latter by passing many statutes that grant presidents effectively unreviewable power to declare that an “emergency” exists, coupled with sweeping powers to address that emergency. (Pp. 830-835.) The International Emergency Economic Powers Act (IEEPA), which President Trump has made the centerpiece of his second administration’s tariff regime, figures prominently in this discussion.
Meyer and Sitaraman contend that the last eight years, since the beginning of the first Trump administration, have marked a new “normalization” of the use of presidential regulation, at least nominally connected with some foreign policy concern, to unilaterally control the domestic economy. To support this contention, they describe a series of Trump and Biden administration actions including: 1) Trump’s invocation of section 232 of the Trade Expansion Act of 1962 to impose steel and aluminum tariffs; 2) Trump’s imposition of sweeping tariffs on China under section 301 of the Trade Act of 1974; 3) Trump’s invocation of IEEPA to impose tariffs to address “emergencies” relating to the trade deficit and fentanyl; 4) Trump’s invocation of the Constitution, IEEPA, and the National Emergencies Act to justify security controls on the bulk-power system; 5) invocation of the Defense Production Act (DPA) by both Trump and Biden to address supply chain issues relating to COVID-19; 6) Biden’s invocation of the DPA to prioritize development and deployment of green energy technologies; 7) invocation of IEEPA by both Trump and Biden to regulate telecommunications (e.g., Biden’s executive order banning the sale of bulk personal data); and 8) Biden’s invocation of the DPA to justify a regulatory regime for artificial intelligence. (Pp. 835-850.)
Whew!
The balance of Presidential Regulation discusses why so much presidential regulation is happening now, why we can expect more of it in the future, and the unfortunate implications of this shift for good governance.
The “why now” question arises in part because presidential regulation generally relies on a mix of constitutional authorities, which have been around for a couple of centuries, along with statutory authorities that are many decades old. Meyer and Sitaraman attribute the recent, massive expansion of presidential regulation to “congressional inaction and polarization, the rise of expansive theories of presidential power, the decline of deference to administrative agencies, and a resurgence in judicial deference to presidential actions in foreign affairs coupled with the blurry boundary between foreign and domestic affairs.” (P. 850.) Of this lot, I can’t help but think that the decay of congressional interest and capacity, which Meyer and Sitaraman list first, is the primary driver. Also, an image of velociraptors probing electric fences keeps coming to mind.
The authors close with a discussion of some unfortunate implications of the rise of presidential regulation, which include less transparent, less accountable, and less democratic governance. They reject the shibboleth that presidential action is necessarily democratic in nature, as the president is the nationally elected avatar of the people’s will. As they aptly observe, “[w]hile legislation reflects compromise among representatives from all over the country, and agency rulemaking is subject to procedures that ensure affected parties have an opportunity to participate, presidential regulation (like presidential control of foreign affairs) has none of these features.” (P. 862.) Free from procedural safeguards that ensure democratic participation and transparency, a president engaged in presidential regulation “decides which outside interest groups to consult, which experts within or without the government to seek advice from, and which domestic constituencies to favor.” (P. 862.) Democracies, one might think, should be careful about handing out that kind of power.
The rise and rise of presidential power is one of the great political, legal, and social stories of our time. Professors Meyer’s and Sitaraman’s excellent article, Presidential Regulation, rewards the reader with a wealth of fascinating detail and analysis of an increasingly important dimension of this power.
