Time to Go Auer Separate Ways: Why the Bia Should not Say What the Law is by Tatum Rosenfeld

Note | Immigration Law
Time to Go Auer Separate Ways: Why the BIA Should Not Say What the Law is
by Tatum P. Rosenfeld*

From Vol. 94, No. 5 (2021)
94 S. Cal. L. Rev. 1279 (2021)

Keywords: Board of Immigration Appeals (“BIA”), Auer

Neither fully legislative nor fully judicial, federal administrative agencies are tasked with “policing the minutiae.”1 They codify and enforce the details of the regulatory scheme set out by Congress.2 Simply put, administrative agencies administer the law. Agency regulations, however, like other legal sources, can be ambiguous.3 Thus, interpretation is inevitably necessary either to confront a novel circumstance or to resolve an inherent semantic ambiguity. This then raises the question: Who should be called upon to resolve such ambiguities? The Supreme Court’s solution is to put agencies in charge. Auer deference says an agency’s interpretation of its own rule controls so long as it is not “plainly erroneous or inconsistent with the regulation.”4 In effect, after an agency promulgates a regulation, it then maintains the latitude to fill in the gaps by interpreting its own regulation.

The Court has offered no good reason why Auer, while reasonable in some situations, should be applied indiscriminately to all agencies. A multitude of federal agencies exist to effectuate policies touching on everything under the sun—including housing, education, social benefits, food, agriculture, commerce, health, and the environment—but there is one agency in particular whose special attributes suggest that it should not be treated the same as all the others. That is the agency in charge of immigration appeals. One might reasonably think deference, for example, to the Food and Drug Administration’s expert interpretation of what constitutes an “active moiety,” promotes a robust and efficient government necessary for modern complexities. It follows that such agencies deserve deference from a court that is less well versed in the expertise involved in rendering such a judgment. However, immigration presents an entirely different set of policy concerns. 

This is because deference to the Board of Immigration Appeals (“BIA”) under Auer risks political manipulation at the expense of immigrants’ liberty and freedom. Nested under the Department of Justice (“DOJ”), and more specifically the Executive Office of Immigration Review (“EOIR”), the BIA and lower immigration courts operate as quasi-judicial bodies, specifically “prone to political manipulation because of their unique combination of structure, history, and function.”A “clarifing” interpretation by the BIA can dictate the scheme by which people are welcomed into or rejected from the United States. The BIA is the unsuspecting gatekeeper, capable of molding the rules by interpretation to advance an anti-immigrant political agenda. Auer, therefore, acts as another tool in the political toolbox to restrict immigration in what is already a labyrinth of proceedings, paperwork, and fear.

This Note argues that Auer deference, even in light of the Supreme Court’s recent clarification of the doctrine, is an inappropriate approach for courts to take when they review the BIA’s rulings. Because the BIA lacks political accountability while simultaneously commingling government powers, deference to the BIA undermines key constitutional principles, such as separation of powers and democracy. Such principles must be enhanced, rather than undermined, more than ever when there is a heightened threat to
liberty. Therefore, a close look is needed to determine whether
Auer deference is warranted for an agency in which the very freedoms of immigrants are at stake. 
The problem actually goes even further. Even if federal courts decided to eschew deference to BIA interpretations, the courts’ own interpretations would still not be an adequate mechanism to protect immigrants from unjust results. With ever-growing caseloads, Article III judges are not equipped with the requisite resources, time, and experience with immigration laws to adjudicate thousands more life-altering decisions in a timely, just manner.Immigration matters deserve to be adjudicated with proper accountability and more formalistic separations of power than those that currently stand. To achieve this, immigration courts and the BIA should, as many others have suggested before, be reformulated as Article I legislative courts to best serve democratic and separation of powers purposes. Liberty for immigrants can be salvaged through fairer adjudications and independent interpretations that are more insulated from political manipulation and the polarized ideologies that waft in and out of power.

This Note proceeds as follows: Part I briefly details a background of the BIA, and a current understanding of Auer deference. This discussion includes Auer’s political implications, and how the Supreme Court chose not to overrule the doctrine in Kisor v. Wilkie. This Section then explores the relationship between Auer and the BIA, including why the BIA’s political vulnerability makes the agency particularly unfit for Auer deference. Certain appointees to this agency have been rewarded with a position as a board member by openly declaring their hostility to the very people who are the object of the agency’s mission, and whose fragile life prospects are in their hands. Ironically, this flips the partisan commitments normally seen in the world of administrative law as follows: Those who would classically support increasing agency discretion by according Auer deference should be worried about giving heightened power to the self-declared, anti-immigrant agenda pervading the BIA, while those who would classically resist excessive delegation and deference to agencies, because of their limited accountability, seek to endow the BIA with vast independence and partisan manipulation. Part II argues that even in the wake of Kisor v. Wilkie, deference to the BIA’s interpretations of immigration regulations presents a heightened threat to constitutional principles of separation of powers and democracy. Part III then provides a potential solution to the inadequacy of Auer deference and the judicial role in the realm of regulatory gap filling for immigration laws. 
 

* Executive Development Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.A., 2017, University of Michigan, Communications and Minor in Law, Justice & Social Change. I am so deeply grateful for my family and their unending support, especially my dad for always being my sounding board and biggest cheerleader. I want to thank Professor Rebecca L. Brown for her invaluable guidance and inspiring perspective in drafting this Note. And, thank you to the talented Southern California Law Review staff and editors for their thoughtful work throughout this publication process.

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The Supersecretary in Chief by Kathryn E. Kovacs

Postscript | Administrative Law
The Supersecretary in Chief
by Kathryn E. Kovacs*

Vol. 94, Postscript (November 2020)
94 S. Cal. L. Rev. Postscript 61 (2020)

Keywords: Administrative Procedure Act, Unitary executive theory

Introduction

The U.S. President plays many roles. Under the Constitution, the President acts as Commander in Chief when directing the military,[1] “Legislator in Chief” when exercising the President’s functions in the legislative process,[2] and Negotiator in Chief under the Treaty Clause.[3] The President acts as the “Statutory President” when exercising authority delegated to the Office of the President by statute,[4] for example, when controlling immigration, establishing tariffs, and declaring emergencies.[5] As head of the executive branch, the President often acts as “Administrator in Chief,” guiding the federal officers who are charged by statute with implementing the law.[6]

This essay concerns situations in which the President goes beyond guiding those officers and actually exercises their statutory authority, essentially acting as a higher-level officer. I dub the President in this capacity the Supersecretary in Chief.[7] President Trump, for example, decided to “permit [liquefied natural gas] to be transported in approved rail tank cars,”[8] even though a federal statute delegates that safety determination to the Secretary of Transportation.[9] Similarly, both Presidents Obama and Trump dictated immigration enforcement policies, even though a federal statute assigns enforcement discretion to the Secretary of Homeland Security.[10] As Kathryn Watts observed, “presidential control . . . has become woven into the fabric of the regulatory state, and it occurs regardless of the political party in the White House.”[11]

The unitary executive theory blesses this state of affairs as an accurate reflection of Article II. The Constitution vests the executive power in the President, the argument goes; therefore, all exercises of executive power are within the President’s purview.[12] Accordingly, the Constitution gives the President the inherent power not only to influence the actions of the officials to whom Congress has assigned statutory authority, but also to step into their shoes and direct their actions, nullify their actions, or take action in their stead, even in areas in which the President otherwise has no constitutional power.[13]

Focusing on the Supersecretary in Chief demonstrates that the unitary executive theory is wrong, because allowing the President to exercise functions that Congress assigned to another officer shifts the balance of powers between the three branches of government.[14] First, the legitimacy of congressional delegations of power to federal officers is premised on control of those officers. Yet, unlike other federal officers, the President is not subject to such control. Second, Congress delegates authority to agencies on the understanding that the agencies will implement their statutory authority via Administrative Procedure Act (“APA”) processes and face judicial review.[15] Under the Supreme Court’s decision in Franklin v. Massachusetts, however, the President does not follow the APA and is not subject to full judicial review.[16] Third, the President’s duty to execute the law faithfully requires the President to implement Congress’s choices regarding the scope of the statutory delegation, the required procedure, and the identity of the delegate. The Supersecretary in Chief does not do so. Given those significant constitutional costs, the unitary executive theory’s approval of the Supersecretary in Chief casts serious doubt on the theory. It should be abandoned, and the President should not be permitted to act as Supersecretary in Chief.

Unfortunately, neither Congress nor the courts have reined in the Supersecretary in Chief, which leads me to explore alternative approaches to correcting the current imbalance. One possible alternative is the APA. Treating the Supersecretary in Chief like an “agency” under the APA would restore some balance by subjecting the President to Congress’s and the courts’ control, reinstating Congress’s primacy in drafting statutes, and faithfully executing the law—at least to some extent.[17] Unfortunately, the APA cannot solve the balance-of-powers problem entirely because it does not erase the fact that the President as Supersecretary in Chief supplants Congress’s chosen delegate. At most, the APA is a second-best alternative to simply striking down any presidential effort to bypass statutory delegations.

I. The President as Supersecretary in Chief

Congress often enacts statutes delegating decisionmaking responsibility to federal officers who lead administrative agencies in the executive branch. There is little dispute that the President, as head of the executive branch, may “be involved in agency decisions such as rulemaking.”[18] Beyond that, however, there is much debate. Under the standard view, the President cannot go so far as to “dictate actions to officials that Congress has authorized to act.”[19] If a presidentially appointed official takes action with which the President disagrees, the President’s primary legal recourse is to remove that person from office.[20]

The unitary executive theory contradicts the standard view. It posits that the Constitution assigns the executive power—“all of it,” as the Court recently emphasized[21]—to the President alone.[22] Any officer the President appoints merely helps the President exercise that constitutional authority.[23] Thus, the President is not limited to merely influencing the officials to whom Congress has delegated statutory authority. Rather, the Constitution gives the President the implied power to dictate their decisions or step into their shoes to exercise their authority, even in areas in which the President has no constitutional power.[24] In other words, the President may act as a higher level officer—as a Supersecretary.

Despite years of cautionary scholarship,[25] the unitary executive theory is now a reality.[26] As Daniel Farber observed, “recent presidents of both parties ‘have publicly proclaimed their authority to direct the administration of the federal government,’ with George W. Bush famously calling himself ‘the decider’ and Barack Obama saying, ‘I’ve got a pen to take executive actions where Congress won’t.’ ”[27] Presidents now direct agency actions via executive order, memorandum, and even tweet.[28] They do this not only in the military and national security arena where the President’s power is primary, but in areas in which Congress has constitutional primacy and has assigned policymaking authority to a particular officer.[29] Presidents are overriding Congress’s chosen delegate to act as the Supersecretary in Chief.

For example, President Obama took credit in a YouTube video for the Clean Power Plan,[30] a rule that the Clean Air Act authorized the Administrator of the Environmental Protection Agency (“EPA”) to issue.[31] President Trump mandated its rescission in an executive order.[32]

The Immigration and Nationality Act delegates enforcement discretion to the Secretary of Homeland Security.[33] Nonetheless, President Obama announced a new immigration enforcement policy in the Rose Garden; the Secretary of Homeland Security then promulgated it in a memorandum.[34] Five days after his inauguration, President Trump issued an executive order directing his new Secretary to rescind that policy and prescribing new enforcement priorities for the Department.[35]

President Trump has provided numerous other examples of this phenomenon.[36] He:

  • ordered the Army Corps of Engineers to “approve in an expedited manner” the Dakota Access Pipeline,[37] even though the relevant statutes delegate decisionmaking authority to the Secretaries of the Army and Interior[38];
  • ordered the EPA “to take specific actions to ensure efficient and cost-effective implementation” of the Clean Air Act[39] and to revise its Clean Water Act regulations to minimize the ability of states and tribes to interfere with the approval of energy projects,[40] despite the fact that both of those statutes empower the Administrator of the EPA to make such decisions[41];
  • ordered the Secretaries of the Interior, Agriculture, and Commerce to renew expired rights-of-way for energy infrastructure,[42] although the relevant statutes assign that responsibility to those particular officers[43];
  • ordered the Secretaries of Agriculture and the Interior to pursue active forest management,[44] overriding the statutes that entrust such judgments to those officers[45];
  • ordered the Secretaries of Treasury, Agriculture, Commerce, Labor, Health and Human Services, Housing and Urban Development, Transportation, and Education to amend their regulations to require recipients of public assistance to seek employment,[46] although typically the relevant statutes assign rulemaking responsibility to the Secretaries[47];
  • ordered the Secretary of Labor to revise the regulations governing multiple employer retirement plans,[48] even though Congress delegated that authority to the Secretary[49]; and
  • ordered agencies to revise their regulations governing commercial use of space[50] and established a detailed policy on the management of traffic in space[51] although statutes already assigned those responsibilities to the National Aeronautic and Space Administration and the Secretary of Transportation, among others.[52]

Numerous other statutes order federal officers to implement their provisions in regulations. Yet, President Trump issued an executive order forcing those officers to repeal two regulations for every one promulgated,[53] thus “constraining the authority of regulatory agencies to implement those statutes consistent with their express purposes and goals.”[54] Trump’s handling of the COVID-19 pandemic provides numerous other examples of this phenomenon.[55]

Even where a President does not go so far as to dictate a particular regulatory outcome, the President’s influence may be so strong that the agency effectively is prevented from exercising its statutorily delegated discretion. For example, President Trump issued an executive order regarding the rule interpreting the term “waters of the United States” in the Clean Water Act.[56] He ordered the Army Corps of Engineers and the EPA to rescind or revise the existing rule and consider making the new rule “consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”[57] Technically, the President left the decision to the Army Secretary and EPA Administrator, but his order “tilt[ed] the agencies” toward Scalia’s view.[58] Following the President’s wishes in such an order must be a major motivation for any final agency decision.[59] Indeed, the agencies’ notice of intent to revise the rule specifically referenced the President’s “directive” as its motivation,[60] and the final rule followed Justice Scalia’s Rapanos opinion.[61] Even without a direct order, the President displaced Congress’s chosen delegate.

In sum, where before agencies would make policy decisions with more or less presidential influence, Presidents now make policy decisions with more or less agency involvement.[62]

One difficulty with this state of affairs is that Presidents do not follow the procedures required of agencies, and they are not subject to judicial review to same extent as agencies.[63] Before issuing any binding policy statement, an agency must give notice of its proposal, accept and consider public comments, and publish the final rule with an explanation for its decision.[64] The President need not follow any particular procedure before issuing a binding directive.[65] If an agency’s decision is challenged in court, it must produce an administrative record for the court to use when determining whether the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[66] Presidential decisions cannot be reviewed under that standard,[67] and presidential documents generally are not included in administrative records.[68]

Despite the inadequate procedure and judicial review, presidential policy decisions are all binding to some degree.[69] A presidential order, like an agency rule, can have the force of law even if it binds only an executive branch agency[70] and even if it is not enforceable in court.[71] The Department of Justice now takes the position that even the President’s Tweets are official statements of the President.[72] Both agencies[73] and courts have treated them as binding.[74]

II. Unbalancing the Balance of Powers

Allowing the President to exercise authority that a statute assigns to another officer impermissibly shifts the balance of power between the branches of government. The unitary executive theory blesses this state of affairs. As explained above,[75] the unitary executive theory holds that “[w]henever an official is granted statutory discretion, the Constitution endows the President with the authority to control that discretion.”[76] Others have explained some of the flaws in that theory.[77] Focusing on the Supersecretary in Chief reveals flaws that the existing critiques have not highlighted. The unitary executive theory’s endorsement of the Supersecretary in Chief, despite the significant constitutional problems with the President bypassing Congress’s chosen delegate, further demonstrates that unitary executive theory is wrong.

The balance-of-powers concept “stresses the need to balance the departments of government, primarily through the creation and maintenance of tension and competition among them.”[78] As James Madison observed in Federalist No. 51, each part of the government must be given “the necessary constitutional means and personal motives to resist encroachments of the others.”[79] M. Elizabeth Magill correctly highlighted the indeterminacy of this concept.[80] At its core, though, the balance-of-powers concept rejects any effort to usurp one branch’s constitutional checks on the others[81] and views with skepticism efforts to reduce the level of tension and competition between the branches.[82]

The President acting as Supersecretary in Chief violates that concept in at least three interrelated ways. First, the legitimacy of statutory delegations of decisionmaking authority to agencies is premised on control of those agencies.[83] The APA codified the conditions for that legitimacy. As I explained elsewhere, “[t]he APA represents a constitutional moment following years of meaningful democratic deliberation. At that moment, Congress, the President, and the courts unanimously accepted the existence of the administrative state, conditioned on procedural constraints and judicial review.”[84] The APA’s requirements “were the necessary ‘quid pro quos’ for the creation of the administrative state.”[85]

The President, however, is not subject to such control, because Franklin v. Massachusetts held that the APA does not apply to the President.[86] Consequently, the President may take action using solely statutory authority without any procedural restraint or adequate judicial review.[87] This undermines Congress’s and the courts’ ability to control the exercise of statutory delegations, shifting the balance of power decidedly in the President’s favor. “When the President assumes policymaking power without policymaking constraints, it undermines the central bargain of the APA and shakes the foundation upon which the administrative state is built.”[88]

Second, Congress delegates authority to officers on the understanding that the officers will implement their statutory authority via APA procedures and face judicial review.[89] Attorney General Wirt observed in 1823 that “[t]he Constitution assigns to Congress the power of designating the duties of particular officers.”[90] The Constitution also assigns to Congress the power of specifying the procedures by which officers act.[91] In fact, even where statutes assign rulemaking authority to the Office of the President, Congress may subject that authority to “substantive or procedural constraints.”[92] In other words, Congress may constrain presidential “value judgments in order to effectuate the execution of the law it creates.”[93] Allowing the President to exercise statutory authority without satisfying Congress’s statutory conditions contradicts Congress’s intent and undermines the legislative bargains underlying the statutory delegations, effectively usurping Congress’s lawmaking power.[94] It “cloth[es] the President with a power entirely to control the legislation of Congress”[95] and is “inconsistent with a fundamental design principle reflected in our evolved constitutional order.”[96]

Proponents of the unitary executive theory might object that Congress also delegates with the understanding that the President has the power to control federal officers, and thus, all statutory delegations to federal officers include the potential for a presidential override.[97] On the contrary, members of Congress may not agree with unitary executive theory.[98] They may recognize that “the Vesting Clause only speaks to the issue of who has control of this executive power to implement the laws. It does not speak to what the laws require in terms of substance or how to implement them in terms of process.”[99] They may understand that the President’s executive power must coexist with Congress’s power “to make all laws necessary and proper” for executing the powers vested in the federal government “or in any Department or Officer thereof.”[100] They may believe that Congress plays a “central role in structuring the Executive Branch,” and “[t]he President, as to the construction of his own branch of government, can only try to work his will through the legislative process.”[101] Robert Percival showed that “every regulatory review program since the rise of the administrative state has been founded on the notion that the president did not have the authority to displace agency decisionmaking.”[102] As Percival pointed out, some statutes expressly allow the President to override agency decisions, which undermines any inference that Congress intends to allow the President to override agencies in other circumstances.[103]

Third, the President’s duty to execute the law faithfully requires the President to implement the choices Congress and the President jointly etched in statutes.[104] Like a fiduciary, the President “must diligently and steadily execute Congress’s commands.”[105] Thus, the President must implement Congress’s choices regarding the scope of the statutory delegation, the required procedure, and the identity of the delegate.[106] When the President executes quintessentially presidential functions—commanding the armed forces, negotiating treaties, etc.—one might argue that legislative restrictions are inappropriate. On the other hand, when the President performs functions that Congress delegated to another officer—when the President acts as Supersecretary in Chief—legislative restrictions are part of the law that the President must execute.[107] Failing to do so impermissibly shifts the balance of powers toward the President.

III.  The APA to the Rescue?

In the absence of congressional or judicial action to rein in the Supersecretary in Chief, the APA provides a means of restoring some balance between the branches. I demonstrated elsewhere that the President should be subject to the APA when exercising powers assigned by statute to the Office of the President; in other words, the Statutory President should be treated like an “agency” under the APA.[108] I explained how the Supreme Court misread the APA’s text and contradicted its history when it held to the contrary in Franklin v. Massachusetts.[109] I revealed the flaws in the Court’s constitutional analysis: contrary to Franklin, treating the Statutory President like an “agency” under the APA alleviates the constitutional concerns with the President making binding policy decisions unilaterally.[110] I also presented the normative case for treating the Statutory President like any other agency under the APA.[111] Finally, I sketched a model for applying the APA to the Statutory President using Trump v. Hawaii as a foil.[112] I did not address the question of whether the President should be subject to the APA when exercising another officer’s statutory authority.[113] That is my task here.

If the APA applied to the Supersecretary in Chief, before making a binding decision, the President would have to give public notice of the proposed policy and accept and consider public comments.[114] The President would have to provide an explanation for the final decision.[115] Finally, the federal courts could review the record of materials the President considered in reaching a final decision[116] to determine if the decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[117]

Applying these APA requirements to the Supersecretary in Chief would alleviate the balance-of-powers problems with the Supersecretary in Chief’s usurpation of another officer’s statutory authority. It also would advance the APA’s normative goals—public participation, political accountability, transparency, deliberation, and uniformity.[118] It would make the President’s decisionmaking more transparent to Congress and the public and subject it to court oversight, thus allowing some control and enhancing political accountability.[119] It also might improve the quality of the President’s decisions, enhance the fairness of the President’s decisionmaking process, and promote deliberation, making it more likely that the President’s decisions will reflect the public interest and expertise rather than raw politics.[120]

Applying the APA to the Supersecretary in Chief would only partially respect Congress’s lawmaking power and faithfully execute the law. The difficulty would remain that the President, when acting as Supersecretary in Chief, supplants Congress’s chosen delegate. Thus, in this context, the APA is only a second-best alternative.[121] If Presidents continue their march down unitary executive theory lane, though, better a second-best alternative than none.[122] Moreover, employing the APA to partially remedy the constitutional difficulties with the Supersecretary in Chief may be less intrusive than forcing the issue in court.[123]

Unfortunately, this means of restoring the balance of powers presents practical difficulties when applied to the Supersecretary in Chief. The Statutory President is designated by statute as the final decisionmaker.[124] Thus, the Statutory President’s decisions generally appear in definitive, written documents.[125] In contrast, when acting as Supersecretary in Chief, the President may employ a range of devices to control officers’ exercises of statutory power from expressly co-opting or directing an officer’s decision to subtly nudging, massaging, facilitating, or encouraging a particular outcome.[126] Subjecting only the more obvious instances of presidential control to the APA could incentivize the President to shift to less obvious means of control.[127] That could drive presidential influence underground where Congress, the courts, and the public cannot even monitor it, much less control it.[128] Expanding the APA’s application to all presidential influence on agency exercises of statutory authority would require documenting all presidential contact (both direct and indirect) with decisionmaking officers, making that material available for public notice and comment, and including it all in the record for judicial review.[129] Such a rule would be difficult to implement and impossible to enforce; any effort in that direction could drive presidential control even further underground.

Yet, driving presidential influence underground would be better than the current trajectory toward unmasked authoritarianism. Presidential influence is constitutionally acceptable so long as it does not prevent the deciding officer from exercising their statutorily delegated discretion.[130] Underground influence may be less likely to cross that line. It leaves Congress’s chosen delegates to make the decisions and take responsibility for them. Those officers are far more transparent and accountable than the President.[131] They engage the public and deliberate more than the President.[132] And they have the institutional support and expertise to make higher quality decisions than the President.[133] In any event, absent an order from the Supersecretary in Chief, the officer’s decision will stand or fall on its own merits under the APA’s arbitrary or capricious standard of review.[134] That is preferable to the overly deferential review of presidential orders.[135]

Conclusion

Unitary executive theory endorses a shift in the balance of powers away from the courts and Congress and towards the President.[136] Opposition to that shift should be bipartisan.[137] Conservatives decried President Obama’s unilateral actions, and now progressives bemoan President Trump’s.[138] The President should not be permitted to act as Supersecretary in Chief, lest the growing power of the presidency destroy our democratic republic.

In the absence of direct opposition to the growth of presidential power, however, the APA provides a second-best alternative. Treating the Supersecretary in Chief like an “agency” under the APA would partially alleviate the constitutional problems with the President supplanting Congress’s statutory delegates. It also would enhance public participation, political accountability, transparency, deliberation, and uniformity, leading the President to make better decisions. That is in every American’s interest.


          [1].      U.S. Const. art. II, § 2, cl. 1. See generally Zachary Price, Congress’s Power Over Military Offices, 99 Tex. L. Rev. (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3550548 [https://perma.cc/JRD7-Q2C2] (exploring the scope of congressional and presidential authority over military officers).

          [2].      See Vasan Kesavan & J. Gregory Sidak, The Legislator-in-Chief, 44 Wm. & Mary L. Rev. 1, 4 (2002).

          [3].      U.S. Const. art. II, § 2, cl. 2.

          [4].      Kevin M. Stack, The Statutory President, 90 Iowa L. Rev. 539, 542 (2005).

          [5].      See Kathryn E. Kovacs, Constraining the Statutory President, 98 Wash. U. L. Rev. 62 (2020).

          [6].      See Ming H. Chen, Administrator-in-Chief: The President and Executive Action in Immigration Law, 69 Admin. L. Rev. 347, 358–59 (2017). Others use the term “Administrator in Chief” to refer to the President “as a central figure directing agencies’ implementation of statutes.” Bijal Shah, Congress’s Agency Coordination, 103 Minn. L. Rev. 1961, 1963 n.5 (2019) (citing references). I use the term here to refer to the President as the administrative head of the executive branch, as distinguished from the President as the decisionmaker or Supersecretary in Chief.

          [7].      See Super, Merriam-Webster, https://www.merriam-webster.com/dictionary/super [https://
perma.cc/Y7TN-VE83] (defining the prefix “super” as “situated or placed above, on, or at the top of”).

          [8].      Exec. Order No. 13,868, 84 Fed. Reg. 15,495, 15497 § 4(b) (Apr. 10, 2019) (“The Secretary of Transportation shall propose for notice and comment a rule . . . that would . . . permit LNG to be transported in approved rail tank cars. The Secretary shall finalize such rulemaking no later than 13 months after the date of this order.”).

          [9].      49 U.S.C. § 60102.

        [10].      See infra text accompanying notes 33–35.

        [11].      Kathryn A. Watts, Controlling Presidential Control, 114 Mich. L. Rev. 683, 726 (2016).

        [12].      Kathryn E. Kovacs, Rules About Rulemaking and the Rise of the Unitary Executive, 70 Admin. L. Rev. 515, 562 (2018); see also Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020) (“Under our Constitution, the ‘executive Power’—all of it—is ‘vested in a President’. . . .” (quoting U.S. Const. art. II, §1, cl. 1)).

        [13].      See Stack, supra note 4, at 583 (canvassing proponents of a strong unitary executive theory); see also Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 593–99 (1994); Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1166 (1992); Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1242–43 (1994); Christopher S. Yoo, Steven G. Calabresi & Anthony J. Colangelo, The Unitary Executive in the Modern Era, 1945–2004, 90 Iowa L. Rev. 601, 607 (2005).

        [14].      See infra Part II.

        [15].      Administrative Procedure Act, Pub. L. No. 79–404, 60 Stat. 237 (1946).

        [16].      Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992).

        [17].      See infra Part III.

        [18].     Nina A. Mendelson, Disclosing “Political” Oversight of Agency Decision Making, 108 Mich. L. Rev. 1127, 1131 (2010).

        [19].      Mark Seidenfeld, A Process-Based Approach to Presidential Exit, 67 Duke L.J. 1775, 1781 (2018); see also Harold H. Bruff, Presidential Management of Agency Rulemaking, 57 Geo. Wash. L. Rev. 533, 539 (1989) (“[T]he President may not simply render a decision himself when Congress has vested such authority in another officer.”); William W. Buzbee, The Tethered President: Consistency and Contingency in Administrative Law, 98 B.U. L. Rev. 1357, 1363 (2018) (“[P]olicy shifts cannot be carried out by executive fiat.”); Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 Duke L.J. 963, 965 (2001) (the “conventional wisdom is that the President does not have” “the power to dictate the substance of regulatory decisions that agencies are required by law to make”); Robert V. Percival, Who’s in Charge? Does the President Have Directive Authority over Agency Regulatory Decisions?, 79 Fordham L. Rev. 2487, 2538 (2011) (“the view most accepted by scholars is that the President does not” have “the legal authority to dictate the substance of regulatory decisions entrusted by statute to agency heads”); Peter L. Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 705–06 (2007).

        [20].      Bruff, supra note 19, at 539; Richard J. Pierce, Jr., Saving the Unitary Executive Theory from Those Who Would Distort and Abuse It: A Review of The Unitary Executive by Steven G. Calabresi and Christopher S. Yoo, 12 U. Pa. J. Const. L. 593, 613 (2010) (“I do not believe that the President has the power to veto a decision made by an executive officer to whom Congress has delegated the decision. If the President disagrees with such a decision his only recourse is to remove the officer.”).

        [21].      Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020).

        [22].      Kovacs, supra note 12, at 562.

        [23].      Calabresi & Prakash, supra note 13, at 596 (“[T]he Constitution establishes that the President exclusively controls the power to execute all federal laws, and therefore it must be the case that all inferior executive officers act in his stead.”) (emphasis omitted); Saikrishna Bangalore Prakash, Hail to the Chief Administrator: The Framers and the President’s Administrative Powers, 102 Yale L.J. 991, 991–94 (1993) (similar); Peter M. Shane, Madison’s Nightmare: How Executive Power Threatens American Democracy 34, 37, 145 (2009) (explaining the unitary executive theory).

        [24].      See Stack, supra note 4, at 583 (canvassing proponents of a strong unitary executive theory); see also Calabresi & Prakash, supra note 13, at 593–99; Calabresi & Rhodes, supra note 13, at 1166; Lawson, supra note 13, at 1242–43; Yoo et al., supra note 13, at 607.

        [25].      See, e.g., Buzbee, supra note 19; Thomas O. McGarity, Presidential Control of Regulatory Agency Decisionmaking, 36 Am. U. L. Rev. 443 (1987); Mark Seidenfeld, The Role of Politics in a Deliberative Model of the Administrative State, 81 Geo. Wash. L. Rev. 1397 (2013); Strauss, supra note 19.

        [26].      See Kovacs, supra note 12, at 562; Jerry L. Mashaw & David Berke, Presidential Administration in A Regime of Separated Powers: An Analysis of Recent American Experience, 35 Yale J. on Reg. 549, 551 (2018) (studying the growth of presidential control in the Obama and Trump administrations); Watts, supra note 11, at 729 (“Presidential directive authority with respect to executive agencies is alive and well.”); Christopher S. Yoo, Foreword, 12 U. Pa. J. Const. L. 241, 243 (2010) (“The consistency with which the last several administrations have embraced centralized control over the administration of federal law eloquently demonstrates how the unitary executive has gained general acceptance.”); cf. Gillian E. Metzger, Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 75 (2017) (“[P]residential administration has become the central reality of the contemporary national government.”).

        [27].      Daniel A. Farber, Presidential Administration Under Trump 23 (Aug. 9, 2017) (unpublished manuscript) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3015591 [https://perma.cc/SD5X-RM
HM]; see also Douglas H. Ginsburg & Steven Menashi, Nondelegation and the Unitary Executive, 12 U. Pa. J. Const. L. 251, 274–75 (2010) (detailing President Obama’s “principal strategies to strengthen his control over the executive”).

        [28].      See Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541, 571 (S.D.N.Y. 2018), aff’d, 928 F.3d 226 (2d Cir. 2019) (quoting stipulation that President Trump uses Twitter “to announce, describe, and defend his policies . . . [and] to announce official decisions”); J.B. Ruhl & James Salzman, Presidential Exit, 67 Duke L.J. 1729, 1739–41 (2018). See generally Phillip J. Cooper, By Order of the President: The Use and Abuse of Executive Direct Action (2d ed. 2014).

        [29].      See Lisa Manheim & Kathryn A. Watts, Reviewing Presidential Orders, 86 U. Chi. L. Rev. 1743, 1745, 1762, 1766–69 (2019).

        [30].      The Obama White House, President Obama on America’s Clean Power Plan, YouTube (Aug. 2, 2015), https://www.youtube.com/watch?v=uYXyYFzP4Lc [https://perma.cc/5EAD-BNF3]. See generally Jud Mathews, Presidential Administration in the Obama Era, in The U.S. Supreme Court And Contemporary Constitutional Law: The Obama Era And Its Legacy 67 (Anna-Bettina Kaiser, Niels Petersen & Johannes Saurer eds., 2019) (discussing presidentialism in the Obama administration).

        [31].      Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015) (promulgated under 42 U.S.C. § 7411(d), which delegates rulemaking authority to the EPA Administrator).

        [32].      Exec. Order No. 13,783, 82 Fed. Reg. 16,093 (Mar. 28, 2017).

        [33].      8 U.S.C. § 1103(a).

        [34].      Memorandum from Janet Napolitano, Sec’y of Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs & Border Prot. et al. (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf [https://perma.cc/U5RD
-6XLA]; see also Manheim & Watts, supra note 29, at 1787 (“[T]he DAPA order in some ways felt like an executive order.”).

        [35].      Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 25, 2017).

        [36].      Manheim & Watts, supra note 29, at 1786 (“Trump has acted aggressively throughout his presidency to blur the lines between the President and the agencies he oversees.”).

        [37].      Construction of the Dakota Access Pipeline, Memorandum for the Secretary of the Army, 82 Fed. Reg. 11,129 (Jan. 24, 2017); see also Buzbee, supra note 19, at 1389.

        [38].      The President referenced the Mineral Leasing Act, which delegates authority to the Secretary of the Interior, 30 U.S.C. § 185(a), and the Clean Water Act and the Rivers and Harbors Act, which delegate authority to the Secretary of the Army, 33 U.S.C. §§ 408, 1344.

        [39].      Presidential Memorandum for the Administrator of the Environmental Protection Agency (Apr. 12, 2018), https://www.whitehouse.gov/presidential-actions/presidential-memorandum-administra
tor-environmental-protection-agency [https://perma.cc/57E6-8TU9].

        [40].      Exec. Order No. 13,868, 84 Fed. Reg. 15,495, 15,495 § 3 (Apr. 10, 2019).

        [41].      42 U.S.C. § 7410; 33 U.S.C. § 1341.

        [42].      Exec. Order No. 13,868, 84 Fed. Reg. 15,495, 15,497 § 6(b) (Apr. 10, 2019).

        [43].      See U.S. Dep’t of Energy, Quadrennial Energy Review: Energy Transmission, Storage, and Distribution Infrastructure ch. IX (Apr. 2015), https://www.energy.gov/sites/prod/

files/2015/04/f22/QER-ALL%20FINAL_0.pdf [https://perma.cc/Q6RK-F9QK].

        [44].      Exec. Order No. 13,855, 84 Fed. Reg. 45 (Dec. 21, 2018). Many of these presidential orders include boilerplate statements that they should be “implemented consistent with applicable law and subject to the availability of appropriations.” E.g., id § 7(b); Exec. Order No. 13,868 § 10(b). That language does not prevent Presidents from ordering officers to take specific actions.

        [45].      E.g., 16 U.S.C. § 529; 43 U.S.C. §§ 1701, 1732.

        [46].      Exec. Order 13,828, 83 Fed. Reg. 15,941, 15,943 § 3 (Apr. 10, 2018).

        [47].      E.g., 7 U.S.C. § 2015(b)(4) (Supplemental Nutrition Assistance Program); 42 U.S.C. § 607 (b)(3)(A) (Temporary Assistance for Needy Families).

        [48].      Exec. Order 13,847, 83 Fed. Reg. 45,321 (Aug. 31, 2018).

        [49].      29 U.S.C. § 1135.

        [50].      Streamlining Regulations on Commercial Use of Space, Space Policy Directive-2, 83 Fed. Reg., 24,901 (May 24, 2018).

        [51].      Space Policy Directive-3, National Space Traffic Management Policy, 83 Fed. Reg. 28,969 (June 18, 2018).

        [52].      E.g., 51 U.S.C. §§ 20113(a), 50905(b)(2).

        [53].      Exec. Order No. 13,771, 82 Fed. Reg. 9,339 (Jan. 30, 2017); see also Buzbee, supra note 19, at 1376–77 (“[T]he President directed all agencies to make deregulatory policy shifts, but without regard to the net benefits, legislative edicts, and societal conditions that led to the earlier regulatory actions.”).

        [54].      Joel A. Mintz, The President’s “Two for One” Executive Order and the Interpretation Mandate of the National Environmental Policy Act: A Legal Constraint on Presidential Power, 87 UMKC L. Rev. 681, 693 (2019).

        [55].      E.g., Exec. Order No. 13,948, 85 Fed. Reg. 59,649 (Sept. 23, 2020) (ordering the Secretary of Health and Human Services to adjust prescription drug prices under Medicare).

        [56].      Exec. Order No. 13,778, 82 Fed. Reg. 12,497 (Feb. 28, 2017).

        [57].      Id. § 3, see also Buzbee, supra note 19, at 1383; Michael A. Livermore & Richard L. Revesz, Regulatory Review, Capture, and Agency Inaction, 101 Geo. L.J. 1337 (2013).

        [58].      Buzbee, supra note 19, at 1383.

        [59].      Seidenfeld, supra note 25, at 1453 (arguing that if the President makes their view known before the agency has deliberated, the agency is likely to be biased towards the President’s desired outcome). Manheim and Watts divide presidential orders into those that are “legally binding” (that is those “that carry the force and effect of law”) and those that are not legally binding (that is those that “do not themselves alter legal rights or obligations”). Manheim & Watts, supra note 29, at 1764–65. Orders that regulate private parties directly fall into the former category. Id. That distinction, however, is difficult to draw and not effective, because everything the President does is “binding” in some sense. Indeed, Manheim and Watts recognize that their categories “blur together around the margins,” and non-binding orders have a significant effect, “even if the effect is largely political instead of legal.” Id. at 1766.

        [60].      Intention to Review and Rescind or Revise the Clean Water Rule, 82 Fed. Reg. 12,532, 12,532 (Mar. 6, 2017); see also Buzbee, supra note 19, at 1383.

        [61].      See Jeremy P. Jacobs and Pamela King, Trump’s Rewrite Is Finalized. What Happens Now?, E & E News (Apr. 21, 2020), https://www.eenews.net/stories/1062934329 [https://perma.cc/7T6Y-9MU
M]; Amena H. Saiyid, Lawyers See Maui Opinion as Grounds to Challenge Trump Water Rule, Bloomberg Law (Apr. 27, 2020, 7:37 AM) https://news.bloomberglaw.com/environment-and-energy/
lawyers-see-maui-opinion-as-grounds-to-challenge-trump-water-rule [https://perma.cc/5V7E-59C4].

        [62].      The APA sometimes uses the term “agency” to refer to the officer who heads the agency. See, e.g., 5 U.S.C. § 557(b); see also Michael Asimow, When the Curtain Falls: Separation of Functions in the Federal Administrative Agencies, 81 Colum. L. Rev. 759, 766 (1981) (referring to 5 U.S.C. § 554(d)(C).

        [63].      Kovacs, supra note 5, at 65.

        [64].      5 U.S.C. § 553.

        [65].      Manheim & Watts, supra note 29, at 1759; Stack, supra note 4, at 552, 554–55.

        [66].      5 U.S.C. § 706(2)(A); Kovacs, supra note 12, at 550.

        [67].      Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992).

        [68].      Kovacs,  supra note 5, at 103. Plaintiffs, of course, may wait for the agency to implement the President’s directive and sue the agency. See Franklin, 505 U.S. at 828 (Scalia, J., concurring in part and concurring in the judgment). That approach, however, is inadequate. The agency must follow the President’s instructions; its lack of discretion makes its action unreviewable. Cf. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) (holding that where a presidential order deprives an agency of discretion, the agency need not analyze the environmental effects of its action). Moreover, the agency cannot explain the President’s reasoning, but can only supply a post hoc rationale for an already-final decision. Kovacs, supra note 5, at 112.

        [69].      See Ruhl & Salzman, supra note 28, at 1741; Elizabeth Landers, White House: Trump’s Tweets Are ‘Official Statements,’ CNN (June 6, 2017, 4:37 PM), http://www.cnn.com/2017/06/06/politics/trump

-tweets-official-statements/index.html [https://perma.cc/DXM6-X9GC]; Executive Power—Presidential Directives—In Tweets, President Purports to Ban Transgender Servicemembers, 131 Harv. L. Rev. 934, 937–38 (2018) (“[T]he basic principles governing presidential instruments…tell us that authoritative presidential directives, whatever their form, are legally binding on subordinates.”).

        [70].      Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002) (stating that a rule is legislative if it “binds private parties or the agency itself with the ‘force of law’”); Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 222 (2006) (“[A] decision has the ‘force of law’ if the agency is legally bound by it.” (citing FEC v. Nat’l Rifle Ass’n, 254 F.3d 173, 185–86 (D.C. Cir. 2001))); cf. Elec. Privacy Info. Ctr. v. Internal Revenue Serv., 910 F.3d 1232, 1244 (D.C. Cir. 2018) (“[A]n agency can create a non-discretionary duty by binding itself through a regulation carrying the force of law.”).

        [71].      Stack, supra note 4, at 597 (“[J]udicial enforceability is not necessary to the existence of a norm having the status of law.”).

        [72].      See, e.g. Memorandum of Law in Support of Motion for Summary Judgment at 15, Knight First Amendment Inst. at Columbia Univ. v. Donald J. Trump, No. 1:17-cv-05205-NRB (S.D.N.Y. Oct. 13, 2017), https://static.reuters.com/resources/media/editorial/20171016/knightvtrump–DOJSJmotion.p
df [https://perma.cc/K84L-MF83]; Defendant’s Supplemental Submission & Further Response to Plaintiff’s Post-Briefing Notices at 2, 4, James Madison Project v. Dep’t of Justice, No. 1:17-cv-00144-APM (D.D.C. Nov. 13, 2017), https://assets.documentcloud.org/documents/4200037/Trump-Twitter-20
171113.pdf [https://perma.cc/3K6Y-D84W].

        [73].      See Adam Aton, Trump Tweet Becomes Policy After Firefighters Rebuffed It, E&E News (Aug. 9, 2018), https://www.eenews.net/stories/1060093713 [https://perma.cc/T2K6-6BWC];, U.S. Secretary of Commerce Wilbur Ross Issues Directive for National Marine Fisheries Service to Facilitate Water Access in California Wildfire Relief Efforts, U.S. Dep’t of Com. (Aug. 8, 2018), https://www.com
merce.gov/news/press-releases/2018/08/us-secretary-commerce-wilbur-ross-issues-directive-national-m
arine [https://perma.cc/93TD-Y3CH]; cf. Shawn Snow & Leo Shane III, Trump Says Tweet Serves as ‘Notification’ to Congress that US May ‘Quickly & Fully Strike Back’ Against Iran, Military Times (Jan. 5, 2020), https://www.militarytimes.com/flashpoints/2020/01/05/trump-says-tweet-serves-as-notif
ication-to-congress-that-us-may-quickly-fully-strike-back-against-iran/ [https://perma.cc/N43M-T2EG]. But see Matthew Chou, Agency Interpretations of Executive Orders, 71 Admin. L. Rev. 555, 582 (2019) (“[T]he military declined to act on President Trump’s July 26, 2017 tweets that purported to exclude transgender individuals from the military, until the President issued a presidential memorandum.”).

        [74].      Hawaii v. Trump, 859 F.3d 741, 773 n.14 (9th Cir. 2017) (citing a tweet when noting that “the President recently confirmed his assessment that it is the ‘countries’ that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s ‘travel ban’ ”) (citing Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 6:20 PM), https://twitter.com/realDonaldTrump/status/871899511525961728), judgment vacated, 138 S. Ct. 377 (2017) (mem.), vacated, 874 F.3d 1112 (9th Cir. 2017).

        [75].      See supra text accompanying notes 22–24.

        [76].      Prakash, supra note 23, at 992.

        [77].      See, e.g., Shane, supra note 23; Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725 (1996); A. Michael Froomkin, The Imperial Presidency’s New Vestments, 88 Nw. U. L. Rev. 1346 (1994); Heidi Kitrosser, The Accountable Executive, 93 Minn. L. Rev. 1741 (2009); Percival, Presidential Management, supra note 19; Peter M. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 Geo. Wash. L. Rev. 596 (1989); Jed Handelsman Shugerman, The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I) (Fordham Law Legal Studies Research Paper No. 3596566, June 23, 2020), https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=3596566 [https://perma.cc/6URZ-S46L].

        [78].      M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 Va. L. Rev. 1127, 1130 (2000); see also id. at 1131, 1159.

        [79].      The Federalist No. 51, at 289–90 (James Madison) (Clinton Rossiter ed., 1999).

        [80].      Magill, supra note 78, at 1194–97.

        [81].      Id. at 1175.

        [82].      See id. at 1196; see also Michael J. Teter, Congressional Gridlock’s Threat to Separation of Powers, 2013 Wis. L. Rev. 1097, 1135 (“[N]o matter the approach one chooses to follow, the core elements of separation of powers remain: separated branches performing certain functions while serving as checks on the others as a means of preserving the proper balance of power.”). But see Eric A. Posner, Balance-of-Powers Arguments, the Structural Constitution, and the Problem of Executive “Underenforcement,” 164 U. Pa. L. Rev. 1677, 1682 (2016) (suggesting that the balance of powers “metaphor is not useful”).

        [83].      See Watts, supra note 11, at 724–25 (“[W]e justify the existence and the legitimacy of what would otherwise be a ‘headless fourth branch’ by the fact that the political branches can and do exert control over agency heads.”); cf. Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 108 Colum. L. Rev. Sidebar 1 (2008) (“The Court therefore sees its role as attempting to reconcile the needs of both political branches for control of agency policy. It establishes the conditions for conflict and compromise between the political branches to produce politically reasonable policy outcomes. These conditions are inherent in separation of powers.”).

        [84].      Kovacs, supra note 5, at 89.

        [85].      Michael Ray Harris, Standing in the Way of Judicial Review: Assertion of the Deliberative Process Privilege in APA Cases, 53 St. Louis U. L.J. 349, 380–81 (2009).

        [86].      Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992).

        [87].      See Kovacs, supra note 5, at 78.

        [88].      Id. at 90. Manheim and Watts pointed out that “separation-of-powers principles” cut “in the direction of protecting the president” and “in the direction of checking the president.” Manheim & Watts, supra note 29, at 1810 (emphasis in original). That is particularly so because recent decades have “seen a massive transfer of policymaking authority from the legislative branch to the executive branch, coupled with increasingly aggressive attempts by Presidents to control that policymaking.” Id.

        [89].      See Strauss, supra note 19, at 754 (observing that when Congress delegates rulemaking authority, it intends for that authority to “be exercised at some remove from raw politics, pursuant to the APA and subject to FOIA”).

        [90].      The President & Accounting Offices, 1 Op. Att’y Gen. 624, 625–26 (1823).

        [91].      See Kevin M. Stack, The President’s Statutory Powers to Administer the Laws, 106 Colum. L. Rev. 263, 318 (2006) (“[S]tatutory constructions that imply directive powers disrupt Congress’s interest in specifying the procedures through which statutory delegations should be implemented.”).

        [92].      Valerie C. Brannon, Cong. Research Serv., LSB10172, Can a President Amend Regulations by Executive Order? 2 (2018); see also Seidenfeld, supra note 19, at 1786 (“[I]f Congress can withhold the power from the president entirely, it seems logical that Congress should be able to condition the exercise of that power however it sees fit.”).

        [93].      Seidenfeld, supra note 19, at 1787.

        [94].      See Harold J. Krent, From a Unitary to a Unilateral Presidency, 88 B.U. L. Rev. 523, 550–51 (2008); see also Christopher J. Walker, Restoring Congress’s Role in the Modern Administrative State, 116 Mich. L. Rev. 1101, 1115 (2018) (emphasizing Congress’s lawmaking power as a means of retaining balance of powers).

        [95].      Kendall v. United States ex rel. Stokes, 37 U.S. 524, 613 (1838).

        [96].      Thomas W. Merrill, Presidential Administration and the Traditions of Administrative Law, 115 Colum. L. Rev. 1953, 1980 (2015); see also Krent, supra note 94, at 550–51, 558; cf. Percival, Presidential Management, supra note 19, at 1005 (arguing that it undermines the value of the Senate’s advice and consent if the President can override an officer’s decision in any event).

        [97].      See Morrison v. Olson, 487 U.S. 654, 709 (1988) (Scalia, J., dissenting) (asserting that all “of the purely executive powers of government must be within the full control of the President”).

        [98].      Even if the Constitution requires all executive power to be lodged in the President, “a constitutional requirement of course does not imply that the legislation complies with it.” Stack, supra note 91, at 274.

        [99].      Richard W. Murphy, The DIY Unitary Executive, 63 Ariz. L. Rev. (forthcoming 2020) (manuscript at 35) (on file with author).

     [100].      U.S. Const. art. I, § 8, cl. 18; see also Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2226 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part) (stating that Congress has the power “to structure administrative institutions as the times demand, so long as the President retains the ability to carry out his constitutional duties”).

     [101].      Seila Law LLC, 140 S. Ct. at 2227.

     [102].      Percival, Presidential Management, supra note 19, at 999.

     [103].      Id. at 1008 (“If the president has express authority to overturn the legal consequences of agency decisions in some circumstances, but not others, the argument for inferring congressional intent to permit the president generally to displace agency decisions is somewhat weaker.”); see also Stack, supra note 91, at 227–228.

     [104].      Andrew Kent, Ethan J. Leib & Jed Handelsman Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev. 2111, 2186 (2019).

     [105].      Id. at 2192.

     [106].      Buzbee, supra note 19, at 1390–91; see also Strauss, supra note 19, at 711 (“The important propositions are that Congress (validly) assigned decision here and specified that decision should be taken by this official, following these procedures, within these legal constraints.”); id. at 759 (“Congress’s arrangements of government are a part of the law that the President is to assure will ‘be faithfully executed.’”).

     [107].      See Murphy, supra note 99 (“The executive power to implement the laws does not carry with it the power to violate them (which would, in any event, violate the president’s duties under the Take Care Clause).”).

     [108].      Kovacs, supra note 5.

     [109].      Id. at 82–88.

     [110].      Id. at 88–95.

     [111].      Id. at 97–114.

     [112].      Id. at 114–19.

     [113].      Id. at 64 n.8.

     [114].      5 U.S.C. § 553(b)–(c). As Manheim and Watts observed, a court may consider an order “binding” “[i]f a President or his subordinates treat a presidential order as binding—or if litigants otherwise can demonstrate that an order is binding as a practical matter.” Manheim & Watts, supra note 29, at 1805.

     [115].      5 U.S.C. § 553(c) (“[T]he agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.”).

     [116].      Kovacs, supra note 5, at 103–04.

     [117].      5 U.S.C. § 706(2)(A).

     [118].      See Kovacs, supra note 5, at 97.

     [119].      Id. at 100–01

     [120].      Id. at 98–99, 104–05. Peter Shane explained how presidential usurpation of agency discretion reduces transparency and democratic dialogue and increases the risk that decisions will be “based solely on passion or ‘interest’” rather than the concerns that animated the statute. Shane, supra note 23, at 160, 163, 164, 183; see also Percival, Presidential Management, supra note 19, 1010 (“[T]here is reason to suspect that the White House would be more inclined to intervene to achieve short-term political gains than to promote the objectives of regulatory statutes Congress has entrusted agencies to administer.”).

     [121].      See Lawrence Solum, Legal Theory Lexicon: Second Best & Nonideal Theory, Legal Theory Blog (Sept. 14, 2014, 7:38 PM), http://lsolum.typepad.com/legaltheory/2014/09/legal-theory-lexicon-se
cond-best-nonideal-theory.html [https://perma.cc/69ZR-NLF8].

     [122].      Id. (“[W]hen the first-best policy option is unavailable, then normative legal theorists should consider second-best solutions.”).

     [123].      Cf. Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 479, 485 (2010) (“[S]eeking to enforce constitutional norms through ordinary administrative law better accords with constitutional principles, and may be less intrusive on the policymaking prerogatives of the political branches, than efforts to segregate out [administrative law and constitutional common law].”); id. at 489 (explaining that administrative law requirements can avoid constitutional violations and enable courts to avoid addressing constitutional issues); David Zaring, Toward Separation of Powers Realism, 37 Yale J. Reg. 708, 749 (2020) (arguing that separation of powers claims fail to achieve their remedial goals because the APA provides a “less intrusive alternative”).

     [124].      See Stack, supra note 4, at 543.

     [125].      Id. at 590 (distinguishing the transparency of the Statutory President’s orders from the President’s influence on officers).

     [126].      See Manheim & Watts, supra note 29, at 1764–65; Watts, supra note 11, at 688–705; see also, e.g., Juliet Eilperin & Josh Dawsey, Trump Pushes to Allow New Logging in Alaska’s Tongass National Forest, Wash. Post (Aug. 27, 2019, 2:29 PM), https://www.washingtonpost.com/climate-environment/
trump-pushes-to-allow-new-logging-in-alaskas-tongass-national-forest/2019/08/27/b4ca78d6-c832-11e
9-be05-f76ac4ec618c_story.html? [https://perma.cc/J33C-ZSS8].

     [127].      Cf. Watts, supra note 11, at 725 (“[E]xpertise forcing threatens to drive political influences underground where such influences will be protected from public scrutiny, accountability, and oversight.”). Watts suggests compelling agencies to disclose presidential influence, but necessarily couples that with the incentive of more favorable standards of judicial review. Id. at 735. Absent the “carrot,” the “stick” would “drive political influences underground.” Id. at 725, 735.

     [128].      Cf. id.; Stack, supra note 4, at 590 (“[W]hen the President merely urges administrators to pursue a course of action . . . transparency is lacking.”).

     [129].      Watts does not go so far as to suggest this. Watts, supra note 11, at 735 (suggesting that agencies should be required “to disclose the substance of significant executive supervision” (emphasis added)); see also id. at 743.

     [130].      Underground influence does not eliminate agency control, undermine the legislative bargains underlying statutory delegations, or fail to execute the law faithfully. See supra Part II.

     [131].      See Metzger, supra note 123, at 491, 492, 530.

     [132].      See Kovacs, supra note 5, at 98–99, 104–05.

     [133].      Id. at 104–05.

     [134].      5 U.S.C. § 706(2)(A).

     [135].      See Kovacs, supra note 5, at 78–82, 109–111.

     [136].      For scholarly opposition to that theory, see supra note 77.

     [137].      Cf. Kovacs, supra note 12, at 561–65 (analyzing the problems with unilateral presidential action).

     [138].      Cf. Yoo, supra note 26, at 243 (“[D]ebates over the unitary executive are not merely a matter of partisanship, as some have claimed, but rather raise fundamental issues about the proper balance of power within the federal government that transcend the politics of the moment.”).

Regulatory Entrepreneurship – Article by Elizabeth Pollman & Jordan M. Barry

From Volume 90, Number 3 (March 2017)
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 This Article examines what we term “regulatory entrepreneurship”—pursuing a line of business in which changing the law is a significant part of the business plan. Regulatory entrepreneurship is not new, but it has become increasingly salient in recent years as companies from Airbnb to Tesla, and from DraftKings to Uber, have become agents of legal change. We document the tactics that companies have employed, including operating in legal gray areas, growing “too big to ban,” and mobilizing users for political support. Further, we theorize the business and law-related factors that foster regulatory entrepreneurship. Well-funded, scalable, and highly connected startup businesses with mass appeal have advantages, especially when they target state and local laws and litigate them in the political sphere instead of in court.

Finally, we predict that regulatory entrepreneurship will increase, driven by significant state and local policy issues, strong institutional support for startup companies, and continued technological progress that facilitates political mobilization. We explore how this could catalyze new coalitions, lower the cost of political participation, and improve policymaking. However, it could also lead to negative consequences when companies’ interests diverge from the public interest.


 

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Strategic Rulemaking Disclosure – Article by Jennifer Nou and Edward H. Stiglitz

From Volume 89, Number 4 (May 2016)
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Congressional enactments and executive orders instruct agencies to publish their anticipated rules in what is known as the Unified Agenda. The Agenda’s stated purpose is to ensure that political actors can monitor regulatory development. Agencies have come under fire in recent years, however, for conspicuous omissions and irregularities. Critics allege that agencies hide their regulations from the public strategically, that is, to thwart potential political opposition. Others contend that such behavior is benign, perhaps the inevitable result of changing internal priorities or unforeseen events.

To examine these competing hypotheses, this Article uses a new dataset spanning over thirty years of rulemaking (1983–2014). Uniquely, the dataset is drawn directly from the Federal Register. The resulting findings reveal that agencies substantially underreport their rulemaking activities—about 70 percent of their proposed rules do not appear on the Unified Agenda before publication. Importantly, agencies also appear to disclose strategically with respect to Congress, though not with respect to the president. The Unified Agenda is thus not a successful tool for Congress to monitor and influence regulatory development. The results suggest that legislative, not executive, innovations may help to augment public participation and democratic oversight, though the net effects of more transparency remain uncertain. The findings also raise further inquiries, such as why Congress does not render disclosure requirements judicially enforceable.


 

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Free Trade Through Regulation? – Article by David Zaring

From Volume 89, Number 4 (May 2016)
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 How should the executive branch respond to globalization? The president’s executive order on international regulatory cooperation provides a blueprint. The branch will turn to regulatory cooperation to make progress in freeing trade and will encourage a particular approach to that cooperation—harmonization—that was eschewed during the successful European integrative project. The executive order, which is assessed in this Article, represents a welcome political endorsement of a phenomenon that was previously pursued by agencies acting largely on their own remit. It is also an attempt to galvanize the use of regulatory cooperation by other agencies disinclined to pursue it in the past. In addition to analyzing how the executive order is meant to work, this Article argues that while the executive’s approach is promising, it must be paired with a commitment to political oversight to ensure that regulatory globalization remains legitimate. There are signs that the president is beginning to provide this commitment through the executive order; the Article identifies a roadmap for its continuation and a role for Congress as well.
 

 

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Controlling Supergraphics: A New Challenge Facing Local Governments Aiming to Limit the Spread of Advertising and Prevent Visual Bight – Note by Lauren Glaser

From Volume 89, Number 1 (November 2015)
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People do not like billboards. These off-site signs, or signs advertising goods and services not available in the near vicinity, allegedly create visual blight, cheapening communities and cluttering the landscape. In addition, they have proven to be hard to control. Local government ordinances aimed at limiting the spread of outdoor advertising and controlling its visual impacts are continually challenged by the well-funded billboard industry. While courts have developed criteria, which often incorporate guidance from the Supreme Court, for determining whether billboard-control ordinances are legal, new technologies in the outdoor advertising industry require local governments to update their regulations and include new definitions to maintain visual protections. Specifically, supergraphics, or oversized signs painted on or attached to building façades, are becoming popular in many areas. This new type of sign results in the same negative visual impact as traditional billboards and is often significantly larger in size. In addition, because supergraphics are often vinyl or mesh affixed to a building façade, they can be erected without the investment in infrastructure required to create a traditional, pole-standing billboard. This means that supergraphics are easier and cheaper to erect, while often creating much more visual disruption.


 

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The Clash: Squaring Mandatory Arbitration with Administrative Agency and Representative Recourse – Article by Maureen A. Weston

From Volume 89, Number 1 (November 2015)
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Mandatory predispute arbitration clauses requiring individual, final, and binding arbitration and excluding all class or representative actions, whether in court or arbitration, are often embedded in employment contracts and nearly all aspects of commercial and consumer transactions. The Federal Arbitration Act (“FAA”) requires courts to enforce agreements to arbitrate. However, both state and federal administrative agencies regulate the sectors in which arbitration contracts are used. Likewise, state and federal legislation may authorize or “deputize” private individuals to assert representative private attorney general or qui tam actions to enforce legislation on behalf of the state or agency. Strict enforcement of these arbitration clauses can thus impair an individual’s access to legislative and administrative schemes otherwise established to address specific areas of public policy.

This Article examines the impact of private arbitration on individuals’ rights to access agency regulatory procedures and to assert representative claims under state laws authorizing private attorney general or federal quitam enforcement. Although the scope of FAA preemption is established doctrine, state and federal courts continue to variously analyze the FAA’s preemptive impact on administrative and regulatory schemes. For instance, courts differ on how to square FAA preemption against regulatory administrative procedures providing substantive protections, laws that “deputize” aggrieved individuals to assert representative claims on behalf of the government, and situations in which a federal agency has declared its statutory scheme exempt from FAA preemption.

This Article argues that the FAA, where applied to preempt and thus deny access to simplified and protective state and federal agency procedures, violates not only constitutional guarantees of federalism, with regard to the states’ sovereign right to regulate traditional matters of public concern, but also separation of powers. Established doctrine, requiring exhaustion of administrative remedies, deference to agency rulings and expertise, as well as respect for state authority under the FAA’s “savings clause,” also supports maintaining such access. This Article proposes alternative reforms to retain the benefits of agency regulation and expertise while respecting contractual obligations and promoting informed decision-making.


 

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From Jitneys to App-Based Ridesharing: California’s “Third Way” Approach to Ride-For-Hire Regulation – Note by Ravi Mahesh

From Volume 88, Number 4 (May 2015)
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A new breed of “app-based” ride-for-hire providers has caused a stir in California, helped rewrite the state’s rules governing ridesharing, and stoked tensions among taxicab drivers, state and local regulators, and the technology companies behind the new apps. UberX, Lyft, and Sidecar are among the most well-known of the new app-based rideshare services, which allow customers to hail a ride using smartphone applications by connecting them with drivers who also use the apps. Critically, the drivers need not be professionals; rather, they merely need to have downloaded a ridesharing app and been cleared by the app provider to drive. For a time, the app-based rideshare companies pointed to these novel aspects of their services to flout regulation entirely. New laws and rules in California, however, provide for the regulation of the nascent industry under a statewide scheme mandating insurance coverage, driver background checks, and other safety-based requirements. In substance, the new rules signal the state’s tacit approval of the development of app-based ridesharing services. Users of these app-based services, which are currently available only in major metropolitan areas like Los Angeles, have been impressed by the apps’ lower prices and perceived higher quality of service.


 

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Narrow Banking as a Structural Remedy for the Problem of Systemic Risk: A Comment on Professor Schwarcz’s Ring-Fencing – Postscript (Comment) by Arthur E. Wilmarth, Jr.

From Volume 88, Number 1 (November 2014)
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In Ring-Fencing, Professor Steven Schwarcz provides an insightful overview of the concept of “ring-fencing” as a “potential regulatory solution to problems in banking, finance, public utilities, and insurance.” As Professor Schwarcz explains, “ring-fencing can best be understood as legally deconstructing a firm in order to more optimally reallocate and reduce risk.” Ring-fencing has gained particular prominence in recent years as a strategy for limiting the systemic risk of large financial conglomerates (also referred to herein as “universal banks”). Professor Schwarcz describes several ring-fencing plans that have been adopted or proposed in the United States, United Kingdom, and European Union.

This Comment argues that “narrow banking” is a highly promising ring-fencing remedy for the problems created by universal banks. Narrow banking would strictly separate the deposit-taking function of universal banks from their capital markets activities. If properly implemented, narrow banking could significantly reduce the safety net subsidies currently exploited by large financial conglomerates and thereby diminish their incentives for excessive risk-taking.


 

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Ring-Fencing and Its Alternatives – Postscript (Response) by David Zaring

From Volume 88, Number 1 (November 2014)
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Steven Schwarcz’s “Ring-Fencing” gets much of its impact from its broad definition of the term, which is usually heard these days when thinking about whether a multinational bank ought to be forbidden from removing the assets of its branches in one country to support its activities in another.

One of the singular contributions of the article lies in its willingness to look beyond that use of the term to think about what ring-fencing means more broadly and conceptually. As Schwarcz observes, ring-fencing is nothing less than a way to allocate resources, regulate firms, and reassure stakeholders that could be applied any enterprise. The ring-fencing metaphor posits the separation of assets within a firm—some are inside the ring fence, and others are not. To Schwarcz this amounts to “legally deconstructing a firm in order to more optimally reallocate and reduce risk,” which could include any restructuring involving holding companies, off-balance sheet entities, and even the creation of corporate subsidiaries.


 

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