Bijal Shah
90 Geo. Wash. L. Rev. 1165
When the President directs agency action, this is known as “presidential administration.” Without fail, presidential administration furthers the President’s own policy aims. Accordingly, this dynamic has intensified greatly in recent years, which has rendered agencies highly responsive to the President’s interests.
However, agencies must be responsive also, if not primarily, to legislative directives. Furthermore, the President has a constitutional duty to execute statutes per their own aims. And yet, no one has questioned the pervasive assumption that presidential administration should be exercised for the President’s purposes alone. Furthermore, neither Justice Elena Kagan’s seminal work on presidential administration nor the subsequent literature on this topic considers the legitimacy of presidential agenda-setting as a means for fulfilling the Executive’s fundamental responsibility to implement legislation. This Article, a contribution to the Annual Review of Administrative Law, fills that gap in the scholarship.
First, this Article illustrates that presidential influence on agency action has disrupted administrative fidelity to statutory law. Despite common views that the Trump presidency was exceptional, this dysfunction began long before and continues today. In order to pursue their own policy goals, presidents have neglected their duty to put the law above their own interests for the last thirty years, and the Biden Administration appears to be no exception.
Second, this Article argues that the motivation that underlies presidential administration—namely, the executive desire to further the President’s own policy goals—should be redirected toward an interest in accomplishing the aims of the statutory scheme that the administrative agency is purporting to enforce. This Article’s appeal for statute-focused presidentialism is motivated by an interest in infusing separation of powers considerations into the mix of values that drive presidential administration, which is currently overwhelmed by the immediate pull of political and partisan interests. Notably, however, statute-focused presidentialism would neither require curbing the scope of the President’s power nor preclude presidentially directed policymaking, and may very well be consistent with a unitary executive.
But how can presidential administration be released from the clutches of the President’s own policy agenda? Third, this Article proposes a blueprint to shift the incentives that underlie agency action resulting from presidential administration. More specifically, this Article proffers a framework of congressional, judicial, and even administrative oversight and intervention to encourage the President to align the administrative execution of law with the goals and thrust of legislation.
Ultimately, this Article makes three contributions. One, this Article is the first to contribute to the literature and conversation the insight that the problems of presidentialism as they relate to the lawfulness of agency action stem from the overwhelming focus of presidential administration on the President’s own policy goals. Two, while most substantive or functionalist arguments in favor of checking presidential power do not gain traction with presidentialists or unitary executive theorists, this Article offers a proposal that should. After all, this Article’s argument is not concerned with the scope or allocation of presidential power, but rather, with the incentives that drive presidential administration. Three, this Article offers a number of novel technical administrative interventions constructed to facilitate modest change in an era during which significant legislative action or judicial constraint of presidentialism on its face is unlikely.
