Deepa Varadarajan, Business Secrecy Expansion and FOIA
, 68 UCLA Law Review
__ (forthcoming, 2021), available at SSRN
The breadth of exemptions to mandatory disclosure of government records under the Freedom of Information Act (FOIA) has long been criticized. The exemptions for national security, the agency privileges, and privacy are among those that have rightly come under fire. Even Congress has tried to rein in some of the most sweeping of these exemptions with recent amendments to the statute itself, capping the applicability of one exemption, the deliberative process privilege, to records less than twenty-five years old. But FOIA usually stands alone. Rarely is there an analogous body of law to learn from or to which it compares.
Deepa Varadarajan’s terrific forthcoming article, Business Secrecy Expansion and FOIA, demonstrates that FOIA’s trade secrets exemption is an exception. Varadarajan traces the history of trade secrets litigation back to its common law origins, documenting its steadfast march toward an ever-broader understanding of what constitutes a trade secret. Now, she explains, trade secrecy law protects any information of commercial value not generally known in the industry and which the owner has taken measures to protect.
In parallel, however, Varadarajan explains that FOIA jurisprudence stubbornly took a narrower view when interpreting the exemption for “trade secrets” and “confidential” commercial information. The “trade secrets” prong was limited to information tied to a production process (like formulas, plans, or devices), and the “confidential commercial information” provision was limited to information the release of which would cause substantial competitive injury. While information that firms voluntarily provided to the government qualified as exempt from disclosure under a broader interpretation, the generally narrower definition led to litigation successes in obtaining a wide variety of records regarding, for example, government contracting, private prisons, and more.
That is, the narrow construction prevailed until the Supreme Court’s decision last year in Food Marketing Institute v. Argus Leader Media. (Disclosure: I was amicus curiae in FMI.) Varadarajan artfully describes how FMI discarded the stricter FOIA standard in favor of aligning FOIA with modern trade secrets litigation. In effect, it rendered exempt from the FOIA disclosure mandate any information submitted by a firm that the firm does not routinely share and provided to the government under an assurance of privacy.
While details of how this standard is applied are being hashed out in the lower courts now, I was struck by Varadarajan’s central observation about the relationship between this development and trade secrets litigation. Not only does it move FOIA towards modern trade secrecy, she theorizes critically important ways in which it may make FOIA’s exemption cover even more business information than is protected by trade secrecy. Since trade secrets litigation is typically brought against former employees, there are certain inherent limits to how it might apply. To begin, it cannot be applied to limit employees from using their general professional knowledge and skills and it cannot apply to that which is generally known within the industry (even if not known in the general public). In addition, and maybe even more importantly, it is limited to that which has some actual commercial value to the trade secret owner. Yet none of those limitations appear in the FMI standard under FOIA or would arise in litigation between a member of the public and a government agency.
Varadarajan’s work is important in several respects, not the least of which is exposing the relationship between trade secrets litigation and the application of the trade secrets exemption under FOIA. Beyond that, she describes how government-held trade secrets are precisely the ones that should be more narrowly defined. After all, these claims are used to keep hidden from public view the activities of private companies performing essential government functions—everything from private prisons to algorithms used in law enforcement to pricing in publicly provided healthcare services. As more and more functions are privatized, this exemption grows in size. It may shield from the public information that is critical to FOIA’s oversight and accountability aims.
She ends with a compelling case that there are real paths forward, even after FMI. While various legislative fixes she proposes might be the obvious starting point, there are also interesting litigation strategies that can be employed. For example, her suggestion of using the 2016 amendment to FOIA requiring agencies to apply exemptions only when there is a “foreseeable harm” from release of the records could be interpreted to alter the substantive standard for trade secrecy claims.
Even more promising, she proposes government contracting terms that impose clear disclosure requirements, thereby negating any claim that the firm expected or was promised secrecy or was closely guarding that information. This sort of built in transparency on the front end has gained traction more broadly, and agency officials I have spoken with have sometimes referred to this concept as “FOIA-ready” record keeping, or other times “transparency by design.” The idea is if we make records in releasable forms at the outset, we can open more of the government to the public.
Varadarajan is exactly right when she writes that the relationship between trade secrecy and FOIA’s commercial exemption “has thus far gone unnoticed.” But her outstanding contribution provides the foundation that is greatly needed by scholars and advocates to imagine commercial secrets beyond the FMI decision.
David Freeman Engstrom, Daniel E. Ho, Catherine M. Sharkey & Mariano-Florentino Cuéllar, Government by Algorithm: Artificial Intelligence in Federal Administrative Agencies
, Report for the Administrative Conference of the United States
(2020), available at SSRN
The use of artificial intelligence is on the rise at federal agencies, and administrative law scholars aren’t paying enough attention. In a forthcoming article, Ryan Calo and Danielle Citron question whether this increasingly “automated administrative state” presents a legitimacy crisis. After all, legislatures delegate broad law-implementation authority to administrative agencies because of regulators’ “ability to accrue expertise and the prospect of flexible and nimble responses to complex problems.” Yet these agencies are increasingly subdelegating such implementation authority to “systems in which they hold no expertise, and which foreclose discretion, individuation, and reason-giving almost entirely.” Despite these concerns, Calo and Citron ultimately do not demand a deconstruction of the automated administrative state. Instead, they argue that “agencies should consciously select technology to the extent its new affordances enhance, rather than undermine, the [expertise] rationale that underpins the administrative state.”
The Calo-Citron article deserves its own Jot. But it also raises a more fundamental question: How automated is the federal administrative state today? Although some work has documented the use of artificial intelligence and machine learning (AI/ML) at a handful of federal agencies, we had lacked a system-wide study. Recognizing this deficiency, the Administrative Conference of the United States commissioned an all-star group of scholars to comprehensively examine this regulatory landscape. In February, those scholars—David Freeman Engstrom, Daniel E. Ho, Catherine M. Sharkey, and Mariano-Florentino Cuéllar—issued their 122-page report, entitled Government by Algorithm: Artificial Intelligence in Federal Administrative Agencies.
There is so much to like *lots* in this report—too much to cover in this short Jot. But I’ll flag a few highlights.
Part I of the report takes inventory of AI/ML across the federal bureaucracy. To do so, the researchers—including the report authors and a large team of law students, political scientists, and computer scientists—focus on the 142 most significant federal agencies. They find that 45% (64 agencies) have embraced AI/ML to some degree. As depicted in Figure 2 of the report, the most common use of AI/ML is for “regulatory resource, analysis, and monitoring,” followed by (in order) enforcement, public services and engagement, internal management, and adjudication. Roughly half of AI/ML use cases (84 of 157) were developed in house. Part I also breaks down the data by agency, subject matter, and implementation stage, among other things. A 43-page online appendix provides even more granularity, including details on all 157 use cases identified at these agencies. In reviewing the findings, I was struck by the fact that most agencies (though not all) experimenting with AI/ML have substantial resources. Many under-resourced agencies, such as agencies focused on immigration and veterans affairs, don’t seem to be doing much AI/ML innovation. I’ll return to this observation later.
After presenting the big picture in Part I, Part II details eight fascinating case studies into how federal agencies have utilized AI/ML. The case studies were not chosen at random, but as illustrations of how agencies utilize AI/ML in various regulatory settings. To illustrate agency enforcement practices, the report has case studies on the Securities and Exchange Commission and Customs and Border Protection. On regulatory analysis, it presents case studies on two pilot programs at the Food and Drug Administration. The report includes three case studies on citizen engagement—at the Consumer Financial Protection Bureau, the Federal Communications Commission, and the U.S. Postal Service.
On administrative adjudication, the report presents case studies on the Social Security Administration and the U.S. Patent and Trademark Office. As Cary Coglianese and Lavi Ben Dor have observed, federal agencies—compared to Article III federal courts—seem much more willing to embrace and experiment with AI/ML when adjudicating. Such experimentation in adjudicating individual claims may seem particularly concerning to many observers. The report explores how the Social Security Administrative has tried to improve the quality of administrative adjudication through the use of AI/ML—by clustering appeals by issue to be decided by specialized appellate adjudicators, by accelerating appeals based on predicted likelihood of success, and by leveraging natural language processing for quality assurance. Similarly, in its case study of informal adjudication at the U.S. Patent and Trademark Office, the report explores how the agency has utilized AI/ML with respect to patent classification, patent prior art search, trademark classification, and prior trademark search. In the patent prior art search context, for instance, the agency developed an in-house tool called Sigma. Yet it ultimately did not implement Sigma agency-wide because the pilot program revealed that the tool “improve[d] efficiency only for examiners with a computer science background.”
Each case study could be the subject of a standalone law review article. Indeed, for scholars looking for research agenda ideas in this area (or law students for student note topics), check out the implications section of each case study, which flags some of the most pressing issues related to that use of AI/ML.
The final part of the report (Part III) zooms back out to examine several cross-cutting implications of the report’s findings. The authors focus on six categories of implications and recommendations:
(1) building internal capacity;
(2) transparency and accountability;
(3) bias, disparate treatment, and disparate impact;
(4) hearing rights and algorithmic governance;
(5) gaming and adversarial learning; and
(6) the external sourcing challenge.
Similar to the case studies in Part II, these half-dozen implications categories could each be the subject of a full-length article. Consider, for instance, the first category of building internal capacity. The report recognizes that federal agencies generally face a “make-or-buy” decision when it comes to incorporating AI/ML in their regulatory activities. The procurement and development of AI/ML will continue to be a challenge for federal agencies. Outsourcing development has important advantages, as those outside of the agency likely have much deeper expertise in developing these AI/ML tools. Yet, as the report underscores, subject-matter expertise can be critical in developing the AI/ML, such that outsourcing the entire process to outside groups would be problematic.
Outsourcing in some circumstances may also be in tension with core values of administrative governance. As Calo and Citron argue, AI/ML developments at federal agencies should be
oriented toward the furthering of substantive commitments and values, such as access, quality, and self-assessment. They are not designed simply to save costs (and in the process undermine procedural commitments without garnering more efficiency) but rather to enhance the capabilities of the administrative state itself—both agencies and officials—to engage in more effective and fair governance. In general, they would not outsource agency functions requiring expertise and discretion to third parties whose software and hardware deliver neither. These efforts have potential to enhance the justification of the bureaucratic state by, ideally, generating knowledge, enhancing expertise, tailoring outcomes, and increasing responsiveness—the purported reasons Congress created agencies to carry out its will in the first place.
Not surprisingly, the report authors strongly recommend internal development even when an agency procures AI/ML from outside the agency. This internal development includes: (1) increasing technical infrastructure and data capacity; (2) developing staff capacity and competency; (3) investing in AI/ML strategy and “regulatory sandboxes”; and (4) incorporating “accountability and transparency by design.” The remaining implications categories in Part III similarly explore how AI/ML should be developed across the administrative state to address some of the dangers of automating regulatory activities.
A critical challenge to developing AI/ML internally, as I hinted above, is that federal agencies face significant budget constraints. Buying off-the-shelf solutions may thus be more tempting for agencies with limited resources, yet such outsourcing often carries greater risks from a Calo-Citron legitimacy perspective. And some agencies that may benefit the most from AI/ML innovations face greater budgetary challenges than others, such that buying AI/ML is not even possible. In the final implications category, the report wisely observes that make or buy are not the only options. Federal agencies can also borrow. These approaches include collaborating with outside non-commercial entities to develop AI/ML, sponsoring AI/ML innovation competitions, and collaborating with other administrative agencies. This borrowing category deserves much more attention in the literature and in the real world. Indeed, we may find similar parallels and helpful lessons from the history of military software procurement, as my colleague Bryan Choi explores in Software as a Profession, where the government pursued such a hybrid development and procurement strategy.
Government by Algorithm is a massive contribution to the administrative law literature, and it lays the foundation for an ambitious research agenda for this emerging subfield of administrative law. The report could not have come at a better time, as federal agencies turn more and more to AI/ML to regulate.
Cite as: Christopher Walker, AI Agents in Federal Agencies
(September 4, 2020) (reviewing David Freeman Engstrom, Daniel E. Ho, Catherine M. Sharkey & Mariano-Florentino Cuéllar, Government by Algorithm: Artificial Intelligence in Federal Administrative Agencies
, Report for the Administrative Conference of the United States
(2020), available at SSRN), https://adlaw.jotwell.com/ai-agents-in-federal-agencies/
What happens when Congress enacts a permanent commitment to pay for some ongoing activity, but then fails to appropriate the funds necessary to do so? Until recently, this phenomenon was almost unheard of. But contemporary examples abound. For example, Congress failed to fund different two different provisions of the Affordable Care Act that had committed the federal government to pay insurers through the “risk corridors” program and through “cost-sharing reductions”; failed to fund tribes who had elected under the Indian Self-Determination and Education Act to provide services that had previously been provided by the federal government; and failed to fund the Children’s Health Insurance Program, a complex cooperative federalism program that is deeply entrenched, albeit in different ways, in states’ health care coverage for children. These examples either reflect or generate inter-branch conflict, implicating the executive branch, and often courts, in what may at first glance seem to be simply an intra-legislative breakdown.
We need a vocabulary to identify and describe this phenomenon and a framework through which to understand and assess it. Matthew Lawrence’s new article Disappropriation does just that.
Disappropriation, as Lawrence defines it, is “legislative failure to appropriate funds necessary to honor a government commitment in time to honor that commitment.” Disappropriation results from “the dissonance between Congress’s legislative power and its appropriations power.” In other words, Congress can enact laws committing the federal government to pay for something, but unless it also designates a source of funds, it has not provided an actual appropriation, as required by the Appropriations Clause.
Sometimes, Congress enacts legislation that harmonizes these powers, providing both a commitment to pay and an ongoing permanent appropriation. Think, for example, of Social Security and Medicare. Other times, however, Congress enacts legislation that reflects dissonance between these powers, committing the government to pay but depending for funding on the annual appropriations process. Food stamps and Medicaid, as “appropriated entitlements,” fall into this category.
When the dissonance between Congress’s legislative and appropriations powers results in a disappropriation, or even comes close to it, negative consequences can ensue. For example, those relying on the government’s anticipated payments can face devastating financial losses, with a particularly burdensome disparate impact on less well-capitalized smaller businesses and individuals without the means to survive the delay associated with a legal or political battle over payment. The rule of law also suffers, in that the executive branch is forced to violate a statutory command because it is without the means to do so. Disappropriation can also result in a problematic kind of delegation, where the executive branch is left to pick and choose how to dole out whatever minimal funds exist to support the commitment in the absence of an intelligible principle, because the law never contemplated this kind of executive discretion.
At the same time, as Lawrence points out, strategic exploitation of dissonance between Congress’s legislative and appropriations powers can result in a threat of disappropriation that may have salutary consequences. While permanent commitments shift inter-branch powers towards the executive branch to implement those commitments, annual appropriations pull some of the power back towards Congress. This fact may strengthen Congress’s oversight function. For example, Congress can use the threat of disappropriation to extract executive commitments to produce documents or testify in committee. The threat of disappropriation can also empower blocks in Congress other than party leadership, so that issues of importance to other groups (members of the minority, committees) can rise to salience.
Is there a way to prevent the negative consequences of dissonance that result from an actual disappropriation while retaining the benefits that accrue from strategic exploitation of the threat of disappropriation? Lawrence suggests that there is a category of rules that does just this: rules that “promote durability (the likelihood that a policy will stay in place and so its capacity to engender reliance) but not entrenchment (the difficulty of changing policy for a majority that wishes to do so).” The key, he argues, is to prevent “bargaining failure,” where a disappropriation results because of either “uncertainty surrounding the impact of legislative action or inaction” or “private information about the consequences of disappropriation.”
In light of this goal, he proposes that courts adopt an interpretive presumption against disappropriation of unambiguous legal commitments; welcome lawsuits by civil servants to enforce disappropriation as a superior alternative to resolving questions about legislative standing; offer expedited declaratory (rather than injunctive) relief when there is a dispute about whether a disappropriation has occurred; and “seek to minimize interference with the political branches and reduce uncertainty surrounding the potential impacts of future disappropriations” when considering claims for damages in any individual disappropriations case. Lawrence’s careful analysis of each of these suggestions provides a critical tool for courts and litigants in thinking through the long-term, systemic implications of different paths for resolving discrete legal controversies.
Lawrence’s contribution is a welcome addition to the growing body of administrative law scholarship on federal funding. In a world where inter-branch disputes increasingly involve money—building a wall at the southern border with funds that far exceed Congress’s appropriations, placing a hold on aid to Ukraine while asking for investigations of political rivals, limiting oversight over Coronavirus relief—insights like the ones Lawrence offers in this excellent article are vital.
In Dimensions of Delegation, Cary Coglianese provides a principled account of the U.S. Supreme Court’s nondelegation jurisprudence. Specifically, he reconciles the seemingly idiosyncratic Schechter Poultry case with subsequent applications of the nondelegation doctrine by theorizing a multi-dimensional model of delegated power. In so doing, he provides a template for rethinking nondelegation as a matter of doctrine, rather than as a matter of political theory or political economy, as it is so often treated by partisans on both sides.
I long have puzzled over the jurisprudential treatment of Schechter Poultry. The Supreme Court has refused to overrule the case but yet has declined to follow it. More cryptically, even detailed discussions of nondelegation precedent, such as Justice Gorsuch’s recent romp in Gundy v. United States, fail to discuss important nuances of the case—including the fact that the National Industrial Recovery Act of 1933 (NIRA) contained explicit criteria for when the President could approve a code of fair conduct that would easily pass the modern “intelligible principle” test. The NIRA required that three criteria be met before the President could endorse a code of fair competition: (1) the trade association that proposed the code was “truly representative” of the regulated industry; (2) the code was not “designed to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them”; and (3) the code would “tend to effectuate the policy of this title.” While this standard leaves the president with broad discretion to choose which codes to approve, it can hardly be suggested that it constrains executive discretion less than delegations subsequently endorsed by the Court without a nod to Schechter Poultry—up to and including the statutory charge to many agencies to discharge their delegated authority in the “public interest.”
Instead of wrestling with the doctrinal difficulties this poses, the Court has attempted to reconcile Schechter Poultry with later and more capacious understandings of permissible delegation based on two distinctions. First, the provision of the NIRA challenged in Schechter Poultry conferred authority on the President to regulate the “entire economy.” Whitman v. American Trucking, 531 U.S. 457, 474 (2001). Second, the challenged provision allowed this authority to be exercised “on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition.’” Id. I have always found both distinctions dubious. After all, the Clean Air Act regulations challenged in Whitman have sweeping impacts on the entire economy, as do regulations under many other broad statutory delegations to agencies that have been upheld by the Court—for instance to restructure securities markets (American Power & Light Co. v. SEC, 329 U.S. 90 (1946)) or to regulate communications broadcast over the nation’s airwaves (National Broadcasting Co. v. United States, 319 U.S. 190 (1943)). And “fair competition” is no less precise a standard than the “public interest.”
Coglianese makes sense of all this by shifting the lens through which we view delegations. He starts by returning to constitutional first principles: the thing that Congress may not delegate to another branch is its vested legislative authority. The novel contribution of the article is to develop a new way of ascertaining when delegated authority is, indeed, legislative, and thus may not be delegated. Coglianese argues that we should conceptualize legislative authority much like we conceptualize property: as a bundle of sticks, or “distinct features which together are constitutive of that authority.” Applying this approach, it becomes clear that the intelligibility of the principle constraining delegated discretion—the current touchstone of the nondelegation doctrine—is but one of the sticks in the bundle comprising legislative authority. Even when delegated authority is not guided by clear statutory standards, it may be circumscribed on other dimensions. The constitutionality of a delegation thus depends on an assessment of all these dimensions.
Coglianese’s close reading of nondelegation precedent reveals that the constitutional permissibility of statutory delegations of authority to the executive branch is not—and never has been—solely about the intelligibility of the principle guiding the administrator’s discretion. Rather, it has been about the overall “shape” and “size” of the authority a statute grants to an executive officer and whether this coincides with the “shape” and “size” of a legislative power granted to Congress by the Constitution.
Coglianese argues that courts have assessed the “shape” and “size” of a delegated authority by reference to six key characteristics, or “six degrees of delegation.” Consistent with the reigning intelligible principle test, one dimension is the statutory basis for decision-making by the administrator, or the extent to which clearly stated standards guide the administrator’s discretion in exercising delegated authority. Coglianese’s analysis surfaces five additional dimensions that have been relevant to the Court’s nondelegation analysis. First, the Court has noted the nature of the statutorily authorized action—specifically, whether the statute authorizes the agency to take enforcement actions or make binding rules. Second, the Court has attended to the range of regulated targets, for instance, whether the delegated authority is over a single industry or a broader swath of the nation’s economy. Third, the Court has considered the scope of activities the agency is authorized to regulate, for example, limiting air pollution or regulating the fairness of business practices of any kind. Fourth, the Court has been interested in the degree of sanctioning power delegated to the agency, including both the magnitude of penalties the agency is authorized to impose and whether they may be imposed directly on private businesses or individuals. Finally, the Court has considered the extent of required process an agency must observe and the extent of constraint this imposes on the agency’s ability to exercise its delegated authority. Where a statutory delegation of authority falls on each of these dimensional spectrums determines whether it is legislative in nature and thus constitutionally impermissible.
Coglianese’s multi-dimensional approach goes a long way to providing a doctrinally coherent account of the Court’s nondelegation jurisprudence. It helps explain, for instance, why the NIRA’s delegation of authority to approve codes of fair competition is more constitutionally problematic than, for instance, the statutory delegation of authority to the FCC to allocate broadcast spectrum in the “public interest.” While the NIRA standards guiding code approval are arguably more “intelligible” than the “public interest” standard governing the FCC, the NIRA delegation of authority falls comparatively short on the other dimensions of delegation. The NIRA covered an unlimited range of regulatory targets, while the FCC regulates a single industry. The NIRA allowed the authorization of codes governing an unbounded range of business practices, while the FCC regulates a more limited set of practices by its regulated community. NIRA authorized criminal penalties for violation of approved codes, while the FCC has much more limited enforcement powers. Under the NIRA, the President’s code approval decisions were unconstrained by any formal procedures, while the FCC is constrained by numerous procedural requirements, including administrative adjudication in many cases.
Beyond its immediate aims, Coglianese’s multi-dimensional approach also provides a useful way of thinking through the “major questions” thicket that the Court has allowed to grow up around its ambivalent streams of nondelegation and deference jurisprudence. Indeed, Justice Kavanaugh explicitly linked the nondelegation doctrine and the “major questions” doctrine in a recent statement respecting denial of certiorari in Paul v. United States. After praising Justice Gorsuch’s “scholarly analysis of the Constitution’s nondelegation doctrine” in Gundy, Justice Kavanaugh suggested that perhaps there should be a “nondelegation principle for major questions.” Coglianese’s approach explains why this would be just as myopic as the “intelligible principle” test: whether a delegation authorizes an agency to address “major questions” focuses exclusively on one dimension of delegated authority—scope—without considering holistically the other dimensions that give a delegation its shape and size and determine whether it impermissibly coincides with legislative power. To be sure, under Coglianese’s approach, the scope of delegated authority is relevant to determining whether an impermissible delegation of legislative power has occurred. However, sweeping delegations of authority over major questions may nonetheless be constitutional if they are constrained on other dimensions, including clear statutory standards and rigorous decision-making procedures.
In sum, Coglianese provides the first principled account of the widely misunderstood nondelegation doctrine as a doctrine. This is a welcome corrective to the present debate, characterized by histrionic appeals to resurrect the “Constitution in exile” and dire warnings about the gutting of the administrative state. His approach invites partisans on all sides to look past the political rhetoric and to take nondelegation doctrine seriously if it is to be revived.
Editor’s note: For another review of Dimensions of Delegation, also published today, please see: Richard Pierce, Reinvigorating the Non-Delegation Doctrine, JOTWELL (June 24, 2020).
Cary Coglianese’s article, Dimensions of Delegation, is timely. The Court has invoked the non-delegation doctrine as the basis to invalidate a statute only once 85 years ago. The only statute that the Court has ever invalidated based on application of the non-delegation doctrine actually delegated extraordinarily broad power to private participants in markets rather than to an agency. During the past year, however, five Supreme Court Justices have made it clear that they are open to the possibility of relying on the non-delegation doctrine as the basis to hold statutes unconstitutional. Even many scholars who have long opposed attempts to reinvigorate the non-delegation doctrine have become more receptive to that possibility in today’s conditions.
A recent online symposium published by The Regulatory Review illustrates the state of the debate. Jonathan Adler and Chris Walker introduced the symposium with their excellent essay: “Delegation and Time.” They made the point that the increasing inability or unwillingness of Congress to amend broadly worded statutes that confer regulatory power on agencies has created a situation in which agencies are forced to apply statutes that are so old that they were drafted when no one could have anticipated the uses to which they are now being put. Thus, for instance, the FCC is using the Communications Act of 1934 as the basis to regulate the internet and the EPA is using the Clean Air Act of 1970 as the basis to take the actions required to mitigate climate change. The result increasingly is a series of agency actions that Congress never contemplated and that might not be consistent with the values of the Congress that enacted the old statute, the present Congress, or the people.
Other contributors to that symposium identified the hundreds of statutes that confer seemingly unlimited “emergency” powers on the President as candidates for application of a newly invigorated non-delegation doctrine. President Trump has relied on the National Emergencies Act of 1976 as the basis for his reallocation of the funds that Congress refused to appropriate to build a wall along the southern border. Senator and Presidential candidate Sanders has stated his intention to rely on the “emergency” powers conferred on the President in various statutes to support expenditure of trillions of dollars to mitigate climate change.
The Regulatory Review is published by the Penn Program on Regulation. That program is run by Cary Coglianese, the author of “Dimensions of Delegation.” Before the Justices take any action to follow through on their stated intention to reinvigorate the non-delegation doctrine, they should study with care both the symposium that Professor Coglianese’s Center published and his article.
Professor Coglianese makes two related points in the article. First, courts and scholars have traditionally framed the non-delegation debate with reference to a single dimension. They should focus instead on six dimensions of the constitutional problem that can be created by broad delegations of power. Second, if the non-delegation doctrine is understood as a response to a multi-dimensional constitutional problem, it is easy to identify ways in which courts have long addressed the problem and can continue to address the problem effectively.
Professor Coglianese begins by explaining how courts and scholars have traditionally decided whether a statutory delegation of power is constitutional by focusing exclusively on the presence or absence of an “intelligible principle” that a court can enforce to keep the agency’s exercise of discretion within boundaries set by Congress. He argues persuasively that courts should also consider the nature of the action the agency has taken, the extent of the power that Congress has delegated to the agency, the scope of the activities that the agency has been authorized to regulate, the nature and degree of sanctions that the agency is empowered to impose, the quality and quantity of the reasoning and evidentiary support for the agency action, and the nature and extent of the process the agency used to make the decision to act.
Professor Coglianese then devotes eighteen pages to a detailed discussion of the many ways in which courts have long enforced the non-delegation doctrine once we recognize that it has many dimensions. He urges courts and scholars to abandon the simplistic and futile search for an “intelligible principle” that limits agency exercises of discretion. He argues that courts can ensure that Congress and agencies act in ways that are consistent with the Constitution by continuing to apply the many administrative law doctrines that respond effectively to the multi-dimensional nature of the potential constitutional problem that can be created by broad delegations of power to agencies.
Editor’s note: For another review of Dimensions of Delegation, also published today, please see Jodi Short, 6 Degrees of Delegation, JOTWELL (June 24, 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.
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.
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.
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.
- 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/