This Article examines a recent and dramatic transformation in the relationship between the President (and his staff) and the administrative state. Professor Kagan argues that President Clinton, building on a foundation President Reagan laid, increasingly made the regulatory activity of the executive branch agencies into an extension of his own policy and political agenda. He did so, primarily, by exercising directive authority over these agencies and asserting personal ownership of their regulatory activity – demonstrating in the process, against conventional wisdom, that enhanced presidential control over administration can serve pro-regulatory objectives. Professor Kagan offers a broad though not unlimited defense of the resulting system of “presidential administration” against legal and policy objections. This form of controlling agency action, she argues, comports with law because, contrary to the prevailing view, Congress generally should be understood to have left authority in the President to direct executive branch officials in the exercise of their delegated discretion. In addition, and relatedly, this form of controlling agency action advances core values of accountability and effectiveness, given notable features of the contemporary administrative and political systems. In comparison with other forms of control over administration, which continue to operate, presidential administration renders the bureaucratic sphere more transparent and responsive to the public and more capable of injecting energy as well as competence into the regulatory process. Professor Kagan concludes this Article by considering ways in which courts might promote presidential administration in its most beneficial form and scope, discussing in particular potential modifications to the nondelegation doctrine and two judicial review doctrines.
Why convicting one innocent person may be better than letting ten guilty people go free