When the newly minted Department of Government Efficiency (DOGE) captured headlines in the early part of the new Trump administration for, in Elon Musk’s words, feeding federal programs into the wood chipper, outrage erupted. And it is not hard to see why. Here was a “special government employee” heading a shadowy new office that was apparently burning the midnight oil to make consequential, unilateral decisions about appropriated federal dollars. Concerns began to emerge that Musk was unconstitutionally appointed, but the concerns ultimately did not go anywhere before DOGE apparently disappeared. Part of the reason for that tepid legal response can be chalked up to the Trump administration’s ace in the hole. DOGE didn’t have any actual authority to feed programs into the wood chipper; it needed some other entity with actual authority to rubber-stamp its work. And rubber-stamping of this sort is pervasive.
In a new article, Adam Samaha gives us a helpful framework for thinking about not only DOGE, but also countless other arrangements in modern government where one actor apparently approves, without any serious independent thought or judgment, the work of another actor. Although many of the examples Samaha uses to illustrate rubber-stamping dynamics come to us from administrative law, rubber stamps can be found almost anywhere institutional decisions are made.
Part of the contribution here is conceptual, for rubber stamps sometimes resemble other familiar “decision structures” in government that are nonetheless formally distinguishable. Samaha distinguishes between “actual power”—i.e., doing the work and deciding—and “formal authority”—i.e., signing off—to create an array of such decision structures. Most important for administrative law, rubber stamps are in some sense like “delegated judgments,” in that they move actual power from one actor to another (e.g., from courts to agencies under Chevron), but they are also critically different, in that they do not move formal authority in tandem with power. Rubber stamps are unique creatures in this division of power and authority. But much of the payoff of the article stems from the fact that the boundaries blur, and that real-world decision structures often could plausibly be characterized as delegated judgments or rubber stamps, and indeed, colloquial use of the idea of delegation may sweep in many rubber stamps. Much depends on the level of “thoughtlessness” in review by those who retain formal authority over those with actual power.
As Samaha acknowledges, rubber stamps often strike observers viscerally as problematic arrangements designed to evade accountability or responsibility by obfuscation—hence the outrage at DOGE, as well as in complaints about President Biden’s alleged abuse of an “autopen.” Yet Samaha also convincingly explains the ubiquity of rubber stamps in government and offers reasons why the law rarely limits them. Samaha’s incredibly diverse collection of examples and his deeply insightful, balanced discussion leave the reader with the inescapable takeaway that rubber stamps are normatively ambiguous.
The better, more nuanced way to think about rubber stamps is in terms of economic tradeoffs. Samaha explains that all decision structures impose decision costs and affect decision quality. At least in the abstract, it is not clear that rubber stamps stack up well against the alternative decision-making structures in most situations. Rubber stamps, on average, seem to impose unnecessary decision costs, since both “delegated judgment” and “independent judgment” cut out steps by uniting power and authority in one actor. If they are rote, rubber stamps are unlikely to add much to decision quality relative to these other options; if not rote (i.e., when some degree of review is possible), they only increase unnecessary decision costs by making each step more involved. Moreover, it is true that rubber stamps impose a kind of cost on observers through their inherent lack of transparency (one never knows exactly what went through the mind of the rubber stamper, if anything), even if complaints about non-transparency often mask simple disagreements with the merits of decisions.
Yet, despite these frequent built-in inefficiencies, Samaha sees virtues in rubber stamps under certain conditions. Rubber stamps often appear to be the predictable result of institutional constraints—specifically, those with formal authority may be inundated with decisions and “information firehoses” without possessing “resources and willingness to exercise that authority personally across its full range.” Rubber stamps could also be entirely rational ways for those with formal authority to organize oversight of relatively low-priority decisions. We could often eliminate rubber stamps by simply giving those with formal authority more resources to bring the work of decision-making in-house. But the realities of modern government often take this option off the table, leaving more of a legitimate domain for rubber-stamping arrangements.
If not quite a love letter, Samaha’s account of rubber stamps understands them to be practical responses to institutional constraints—often more laudable, or at least tolerable, the more time we spend with them. Samaha suggests that this is why the law has so rarely attempted to restrict rubber-stamping, at least to date. Courts and lawmakers have perhaps understood implicitly that they lack the tools to develop a general law of rubber stamps, and have wisely rubber-stamped whatever rubber stamps bubble up as a matter of institutional necessity and experience.
It is possible that this will change. Not only are there rumblings of discontent with certain uses of rubber stamps, as in the DOGE case, but Samaha also reminds us that there are echoes of an anti-rubber-stamp view of accountability in some of the Supreme Court’s executive power caselaw. At times, the Supreme Court has tacitly approved of rubber-stamping as a formal solution to structural unconstitutionality—as it did when it turned the other way as Securities and Exchange Commission officials ratified past administrative law judge holdings in the wake of Lucia v. SEC. But if it is true, as the Court said in United States v. Arthrex, Inc., that the President cannot delegate “the obligation to supervise,” then it may be difficult to square rubber stamps of agency decision-making with the Constitution. Put differently, the unitary executive theory would not be so unitary if it permitted the separation of power and authority.
Moreover, the workaday problems with rubber stamps are only going to become more pressing in light of generative artificial intelligence, which holds out the promise (or temptation) to rubber-stamp purely artificial power at scale. Perhaps these pressures sounding in legitimacy will prompt more development of legal restrictions on rubber-stamp arrangements—or perhaps we will discover that existing administrative law doctrines can be adapted to stamp out (har har har) abuses of artificial intelligence.
All of this suggests a growing need to think carefully about rubber-stamping in government. While we are not yet at the point where clear answers to concrete questions about rubber stamping arrangements are readily apparent, Samaha’s rich account takes us far down this path and helps us organize our thoughts about rubber stamps. In any event, it is revealing to simply notice, as Samaha does, how rubber stamps are both like and unlike familiar problems in administrative law, and how much modern government relies on a category of decision structures that has received far less attention in scholarship than “delegation” and “independent judgment” have.
