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Kathryn E. Kovacs, Constraining the Statutory President, __ Wash. U. L. Rev. __ (forthcoming), available at SSRN.

There’s a legal black hole at 1600 Pennsylvania Avenue where there shouldn’t be—or so argues Professor Kathryn Kovacs in a spirited new article, Constraining the Statutory President. A “legal black hole,” as Adrian Vermeule defined it, exists when statutes or legal rules create a zone in which the rule of law, including the constraints of administrative procedure and the checks of judicial review, cannot penetrate. And, as Vermeule pointed out, the Court created just such a black hole in Franklin v. Massachusetts by flatly excluding the President from the ambit of the Administrative Procedure Act: “the President is not an agency within the meaning of the APA.” Franklin is probably not what most people would call a “fixed star in our constitutional constellation.” But it is now a fixed “black hole” in the (administrative) constiution—a holding subsequently reaffirmed by the Court, abided by lower courts, left undisturbed by Congress, and treated as a given by many scholars.

Kovacs dissents from this acceptance of Franklin. Her article is one of a noteworthy set of recent articles that have examined presidential power and the constraints that should be imposed upon it. This boomlet of scholarship has addressed, among other topics, frameworks for judicial review of presidential orders, the importance of presidential fact finding, and the internal White House process of crafting presidential proclamations, directives, and orders. Speaking on a more conceptual plane, one new article offers a comprehensive defense of the thesis that the “duality” of the Presidency—i.e., that the President is both a mortal man and a public office—is a “defining ambiguity” of public law.

Kovacs’s subject is a different Presidential “duality.” At times, the President acts as the constitutional President—for example, when he vetoes a bill or nominates a justice. At other times, the President acts as if he were an agency—for example, when he issues proclamations or orders under color of statutory authority. When the President acts like an agency, Kovacs argues, then he ought to be treated like an agency. (Pp. 7, 49.) The Statutory President, she contends, should comply with the same administrative procedural and substantive requirements with which Congress’s other statutory delegates (i.e., ordinary agencies) must comply when they issue rule-like regulatory commands.

Franklin now blocks that possibility, but Kovacs argues that Franklin was both wrong and harmful: wrong as a matter of text, legislative history, and constitutional structure, and harmful as a matter of policy and administrative law values. The APA did not expressly exclude the President from its capacious definition of agency—and, she argues, if the APA’s drafters did think that the President wasn’t an agency, then that is because they couldn’t and didn’t anticipate how much consequential regulatory action modern presidents are liable to produce. (P. 35.) Kovacs notes that reversing Franklin would leave a wide swath of presidential action outside the scope of APA review, including many actions involving treaties, tariffs, or military affairs. (Pp. 29-30.) But in other regulatory realms, including in the domain of some immigration policymaking, the APA’s constraints would apply. All in all, Franklin should be reversed by the Court, she concludes. (P. 36.) And if the Court does not do so, Kovacs urges that Congress take action, either by amending the APA to legislatively override Franklin (P. 60) or by refraining from entrusting more power to the unconstrained actor at the apex of the executive branch. (Pp. 60-61.)

What turns on the President being an “agency” within the meaning of the APA? Savvy lawyers today are often able to frame their suits to evade Franklin—for example, by seeking nonstatutory review or by suing a subordinate officer. But Kovacs is not satisfied by such routes around Franklin; she would prefer to deep-six it altogether. To Kovacs, the stakes appear high: “Failing to curb the Statutory President,” writes Kovacs, “will further enable our nation’s descent into authoritarianism.” (P. 9.) On the other hand, she argues, imposing administrative procedural constraints upon the President would promote a suite of virtues and values familiar to administrative law, among them greater deliberation, enhanced political accountability, more robust public participation, and increased transparency. (Pp. 37-46.)

One important element of Franklin was Justice Scalia’s concurrence in that case. Kovacs correctly observes that Scalia “believed that [Massachusetts] lacked standing” (P. 14), but his opinion said a bit more than just that. Scalia offered a full-throated rejection of the proposition that any federal court could enjoin the President in the performance of his official actions. Indeed, Scalia rebuked the notion that a federal court could issue even a declaratory judgment that runs directly against the President: to his mind, it was a sad commentary on the degraded state of legal understanding that the district court in Franklinentered this order against the President without blinking an eye.”

If the President had been held to be an agency within the meaning of the APA in Franklin, then obviously many more such decrees against Presidential agency action would have been in the offing—orders that (on Scalia’s view) would have been not just unconstitutional, but embarrassingly unconstitutional. Writing for a slim 5-4 majority in the relevant portion of Franklin, Justice O’Connor accommodated that concern by reading the APA as excluding the President on constitutional avoidance grounds. But O’Connor also hedged about the consequences of that holding by expressing the Court’s confidence “that the President and other executive and congressional officers would abide by” a district court’s “authoritative interpretation . . . even when though they would not be directly bound by such a determination.” If that assumption is unwarranted, then that would provide another reason to question Franklin’s outcome.

The chief reward of Kovacs’ article lies in its focused exploration of the road left untaken in Franklin. Additional rewards lie in the interesting nuggets she has scattered throughout her discussion. For example, as Kovacs notes, the Court decided Franklin in an unusually short span of time—just over three months elapsed between the initial notice of appeal and the decision. And I learned for the first time from Kovacs that Franklin has caused a circuit split to “hatch” between the D.C. Circuit and the Federal Circuit concerning the availability of nonstatutory review. (P. 21.) Finally, I always enjoy reading about instances in which the sitting Justices litigated a particular position in their earlier careers as government lawyers or in private practice—and, as it happens, Franklin was argued for the United States by one John G. Roberts, Esquire. (P. 12.)

Today, of course, whether the Court would decide this issue differently may depend in part on the vote of the former government lawyer—Chief Justice Roberts—who successfully argued the Franklin appeal. For that and other reasons, persuading the Court to reverse Franklin may be an uphill fight. And, as Kovacs recognizes, the prospect of a Congressional override of Franklin “seems like a long shot” as well. (P. 60.) If the end result would seem to be that Franklin, warts and all, is likely to remain a fixture in the firmament of our administrative law, then that should perhaps not come as a surprise. As any physicist (not to mention Adrian Vermeule) could tell you, it’s not easy to fill up a black hole.

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Cite as: Mila Sohoni, Administrative Law All the Way Up, JOTWELL (November 6, 2020) (reviewing Kathryn E. Kovacs, Constraining the Statutory President, __ Wash. U. L. Rev. __ (forthcoming), available at SSRN),