David J. Barron · August 2008
76 GEO. WASH. L. REV. 1095 (2008)
The Reagan administration’s aggressive efforts to deregulate the national economy touched off a sharp debate over the proper relationship between the White House and the federal bureaucracy—and that debate continues to this day. Peter Strauss’s foreword last year directly joined it by setting forth an elegant and incisive critique of the notion that the President should be empowered to act as if he is the regulatory “decider” in chief. But as persuasive as that critique is, I want to focus on the important legal questions that come to the fore once we move beyond the now nearly thirty-year-old controversy surrounding the President’s attempts to order administrative agencies to comply with his preferred policy prescriptions.
Professor Strauss’s critique took direct aim at White House efforts to countermand federal administrative agency judgments—whether by rejecting proposed actions or mandating new ones. In doing so, Strauss implied that, absent such aggressive presidential interference, the national bureaucracy would be well positioned to offer a countervailing perspective, presumably rooted in norms of expertise and professionalism. Significantly, defenders of the President’s right to veto and direct agency decisions have usually operated from a similar premise. They have argued that such presidential authority, aggressive though it is, is necessary to make the regulatory system democratically accountable and administratively coherent. But they, too, have assumed that, if left to their own devices, agencies would serve as a substantial counterweight to the White House. Indeed, that is precisely the problem that, in their view, needs to be overcome. Both advocates of presidential control and defenders of agency autonomy thus seem to agree on the key question going forward: whether the President should be permitted to mount a hostile takeover of a bureaucracy that is otherwise substantially independent?
In making this question central, each side has essentially ignored the fact that for the last three decades, Presidents have been doing much more than looking for ways to wrest discretionary decisionmaking power from agencies. Over that same period of time, Presidents also have been making novel and aggressive use of their powers of appointment to remake agencies in their own image. As a result, agencies increasingly want to align their own judgments with the White House view—even if top agency officials are not ordered to do so by the political aides working at 1600 Pennsylvania Avenue. Agencies are now to an unprecedented extent governed by a thick cadre of political appointees; these individuals have been chosen either for having close ties to the President or for making strong prior commitments to his regulatory vision. For all the debate over the legality of a White House hostile takeover, therefore, the real story may be that Presidents have effected a peaceful merger with the federal bureaucracy by transforming the nation’s administrative agencies from within.
