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Administrative Law

Structural Deregulation

Modern critics of the administrative state portray agencies as omnipotent behemoths, invested with vast delegated powers and largely unaccountable to the political branches of government.  This picture, we argue, understates agency vulnerability to an increasingly powerful presidency. One source of presidential control over agencies in particular has been overlooked: the systematic undermining of an agency’s ability to execute its statutory mandate. This strategy, which we call “structural deregulation,” is a dangerous and underappreciated aspect of what then-Professor, now-Justice Elena Kagan termed “presidential administration.”

Structural deregulation attacks the core capacities of the bureaucracy. The phenomenon encompasses such practices as leaving agencies understaffed and without permanent leadership; marginalizing agency expertise; reallocating agency resources; occupying an agency with busywork; and damaging an agency’s reputation. Structural deregulation differs from traditional “substantive” deregulation, which targets the repeal of particular agency rules or policies. While substantive deregulation may have serious consequences, it is relatively transparent, limited in scope, and subject to legal challenge. By contrast, structural deregulation is stealthier. It is death by a thousand cuts.

We argue that structural deregulation is in tension with constitutional, administrative, and democratic norms. Nevertheless, public law is remarkably ill-equipped to address it. Constitutional and administrative law both have blind spots when it comes to presidential management of the bureaucracy, especially when the President’s mission is incapacitation. Specific statutes meant to protect the civil service or inoculate agency budgets from presidential control do not help much either — they are vulnerable to workarounds. These blind spots and workarounds have allowed structural deregulation to flourish as a method of presidential control, with serious consequences for the future of the administrative state. We therefore propose legislative and regulatory reforms that could help to control the risks of structural deregulation.

Introduction

Critics of the modern administrative state characterize the federal bureaucracy as an imperious and unaccountable behemoth that threatens core principles of democratic governance.1×1. See, e.g., Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 91 (2015) (Thomas, J., concurring in the judgment) (“We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus . . . .”); City of Arlington v. FCC, 569 U.S. 290, 313 (2013) (Roberts, C.J., dissenting) (“The Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities.” (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499 (2010))); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring) (observing that executive bureaucracies “swallow huge amounts of core judicial and legislative power and concentrate federal power” and thus that “[m]aybe the time has come to face the behemoth”); Philip Hamburger, The Administrative Threat 4 (2017) (“Administrative power is . . . all about the evasion of governance through law, including an evasion of constitutional processes and procedural rights.”); David Schoenbrod, Power Without Responsibility: How Congress Abuses The People Through Delegation 19 (1995) (describing delegation to agencies as the phenomenon by which Congress “broadens the federal government’s regulatory jurisdiction over our lives, even while it reduces government’s capacity . . . to protect us from the harms about which we care the most”); Charles J. Cooper, Confronting the Administrative State, Nat’l Affs., Fall 2015, at 96, 97 (“It is fitting that we refer to the administrative state as a ‘state,’ for it has become a sovereign power unto itself, an imperium in imperio regulating virtually every dimension of our lives.”). This portrayal misses the extent to which agencies are vulnerable to an increasingly powerful President capable of undermining them in unappreciated ways. This undermining, what we call “structural deregulation,” targets an agency’s core capacities. Structural deregulation erodes an agency’s staffing, leadership, resource base, expertise, and reputation — key determinants of the agency’s capacity to accomplish its statutory tasks.

Structural deregulation has serious long-term consequences for the administrative state, and a President committed to it can do lasting damage. The Supreme Court has enabled structural deregulation by simultaneously countenancing a strong presidency while expressing skepticism about the legitimacy of administrative power.2×2. See, e.g., Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2211 (2020) (holding that the President must have plenary authority to remove the single head of an executive agency because such removal is a key component of “the executive Power” delegated to the President in Article II); id. at 2218–19 (Thomas, J., concurring in part and dissenting in part) (opining that independent agencies are unconstitutional because their heads are shielded from presidential removal); Lucia v. SEC, 138 S. Ct. 2044, 2051–54 (2018) (concluding that administrative law judges at the Securities and Exchange Commission (SEC) were “Officers” and therefore that their appointment by SEC staff members was unconstitutional and that they could be appointed only by the President, heads of department, or the courts). On statements from members of the Court that suggest skepticism about the administrative enterprise, see cases cited supra note 1. This combination of enthusiasm for presidential authority and animus toward the administrative state3×3. Professor Gillian Metzger has observed that this combination of opposition to bureaucracy and enthusiasm for presidential power is a hallmark of “contemporary anti-administrativism.” Gillian E. Metzger, The Supreme Court, 2016 Term — Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 3–7 (2017). helps to create the ideal conditions for structural deregulation to take root.

Structural deregulation is distinct from what we call “substantive” deregulation, which aims to weaken or rescind particular agency rules or policies but falls short of a wholesale attack on agency capacity. Substantive deregulation might include regulatory rollbacks that weaken health, safety, financial, or labor standards;4×4. See, e.g., Tracking Deregulation in the Trump Era, Brookings Inst. (Jan. 19, 2021), https://www.brookings.edu/interactives/tracking-deregulation-in-the-trump-era [https://perma.cc/H3Q2-48SF] (collecting delayed, repealed, and new rules across environmental, health, labor, and other categories). shifts in an agency’s enforcement priorities;5×5. Daniel T. Deacon, Note, Deregulation Through Nonenforcement, 85 N.Y.U. L. Rev. 795, 796 (2010). or legal interpretations that shrink an agency’s authority or jurisdiction.6×6. For a treatment of this last approach, see generally William W. Buzbee, Agency Statutory Abnegation in the Deregulatory Playbook, 68 Duke L.J. 1509 (2019). Typically, instances of substantive deregulation take the form of notice-and-comment rulemaking, but sometimes they occur via interpretive rules, guidance, or other policy vehicles. These decisions typically must comply with legal procedures requiring transparency and afford opportunities for judicial review, and are thus relatively straightforward for an incoming administration to reverse. By contrast, structural deregulation tears at an agency’s foundation and does so largely out of view and beyond legal redress, causing potentially enduring harm.7×7. While an extreme campaign of substantive deregulation may converge with structural deregulation at some point, we treat them as conceptually distinct. Structural deregulation is not about any one, or even a handful, of particular regulatory policies. And it does not include standard policy differences, or enforcement priorities, which are expected to swing somewhat from administration to administration. It is concerned rather with steps Presidents can take to incapacitate institutions and prevent them from fulfilling their statutory mandates.

The Trump Administration presents perhaps the most extreme example of structural deregulation in recent history,8×8. The Trump Administration aggressively pursued both substantive and structural deregulation. It sought to repeal or weaken regulations related to environmental protection, civil rights, education, health care, and immigration, among other areas. While not the first administration to employ such tactics, the Trump Administration used them more aggressively, comprehensively, and in a more coordinated fashion than its predecessors. See sources cited infra notes 29–33 and accompanying text. These instruments are likely to remain appealing to deregulatory Presidents. The history of regulation shows that new tools, once exercised, tend to remain in the deregulatory arsenal. See, e.g., Bethany A. Davis Noll & Richard L. Revesz, Regulation in Transition, 104 Minn. L. Rev. 1, 64–65 (2019). but it is not the only one. Other Presidents, including both Richard Nixon and Ronald Reagan, also sought to weaken agencies by undermining their capacity to do their work, through strategies ranging from impoundment to intentional understaffing.9×9. See Jeff Gerth, Absent Watchdogs–A Reagan Legacy; Regulators Say 80’s Budget Cuts May Cost U.S. Billions in 1990’s, N.Y. Times (Dec. 19, 1989), https://www.nytimes.com/1989/12/19/us/absent-watchdogs-reagan-legacy-regulators-say-80-s-budget-cuts-may-cost-us.html [https://perma.cc/DB48-REW8]; David E. Rosenbaum, The Savings Debacle: A Special Report: A Financial Disaster with Many Culprits, N.Y. Times (June 6, 1990), https://www.nytimes.com/1990/06/06/business/the-savings-debacle-a-special-report-a-financial-disaster-with-many-culprits.html [https://perma.cc/3CDP-H4T5]; infra notes 139–140 and accompanying text (discussing President Nixon’s impoundment practices). And while Republican Presidents historically have been more likely to engage in structural deregulation, that pattern may not always hold true. The same tools we identify can be used by a President of any party, who for whatever reasons wishes to destroy the institutional capacity of particular agencies or of the administrative state as a whole.

In Part I, we offer a typology of structural deregulation, with examples organized into several broad categories. The examples show that presidential undermining can be piecemeal and incremental, with the cumulative impact becoming clear only over time. In essence, it is death by a thousand cuts.

Our account has several important implications, which we discuss in Part II. First, structural deregulation exemplifies a different, more troubling side of “presidential administration.” It shows that while Presidents may sometimes embrace agency achievements for political gain — the trend then-Professor, now-Justice Elena Kagan identified in her iconic article10×10. Elena Kagan, Presidential Administration, 114 Harv. L. Rev 2245 (2001). — they also can seek political advantage by undermining agency capacity. Justice Kagan’s portrayal assumed a good faith chief executive on the hunt for credit-claiming opportunities that would amplify agency competence and, inevitably, tie the agency tightly to the President.11×11. See id. at 2252. Rather than aligning the President with his agencies, however, structural deregulation drives a wedge between them.12×12. The literature on presidential control of agencies is both broad and deep. See, e.g., Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 Mich. L. Rev. 47, 49 (2006) (interviewing agency officials to develop a portrait of presidential control as more complex and less positive than Justice Kagan’s account suggests); Daphna Renan, Pooling Powers, 115 Colum. L. Rev. 211, 234–35 (2015) (identifying the President’s ability to pool resources across agencies as a key tool of presidential control); Peter L. Strauss, Foreword, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 704–05 (2007) (concluding that the President should oversee the bureaucracy but not make decisions on agencies’ behalf unless Congress has assigned that authority to him by statute); Kathryn A. Watts, Controlling Presidential Control, 114 Mich. L. Rev. 683, 734–35 (2016) (expressing optimism about the potential for transparency and process to constrain the worst aspects of presidential control).

Second, structural deregulation has repercussions for the separation of powers. By making it harder for agencies to fulfill their statutory mandates, a campaign of structural deregulation can be seen as both an encroachment on Congress’s lawmaking authority and, arguably, a dereliction of the President’s constitutional duty to faithfully execute the laws.

Third, structural deregulation’s relative obscurity and informality — the very qualities that make it appealing to Presidents as a tool of control — mean that it contravenes longstanding administrative law norms of procedural regularity, transparency, rationality, and accountability. If these norms continue to represent desirable features of American government, their systematic erosion is troubling.

Finally, structural deregulation can be difficult to undo. It forces a President’s successor to take time away from governing in order to rebuild what has been torn down. Structural deregulation is thus in tension with democratic norms disfavoring political and policy entrenchment.

Preventing or remediating structural deregulation presents a considerable challenge — especially when “presidential administration” is at its apex, courts are unwilling to check executive power, and Congress is gridlocked.13×13. See, e.g., Sarah A. Binder, Going Nowhere: A Gridlocked Congress, Brookings Inst. (Dec. 1, 2000), https://www.brookings.edu/articles/going-nowhere-a-gridlocked-congress [https://perma.cc/GZJ9-7NP3]; Lisa L. Miller, Too Little Too Late: The Supreme Court as a Check on Executive Power, Mother Jones (Feb. 16, 2006), https://www.motherjones.com/politics/2006/02/too-little-too-late-supreme-court-check-executive-power [https://perma.cc/8PFF-DPVQ]. To pose the question starkly: If the other branches are disinclined, who can stop a President from dismantling the administrative state? In Part III, we explore legal strategies for redressing structural deregulation but conclude that existing public law does not offer much of a foothold.

Constitutional law seems unavailing: even if the President’s constitutional duty to faithfully execute the laws includes a commitment to maintain the core capacities of agencies, it is not clear that there is a judicial remedy for its violation.14×14. See Jack Goldsmith & John F. Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1847 (2016) (arguing courts have understood the Take Care Clause as creating “exclusive presidential authority to assure government officials’ fidelity to law”). Existing statutes are similarly unhelpful. In most instances, substantive statutes do not provide the basis for a lawsuit challenging presidential undermining of agencies. The various procedural protections in the Pendleton Civil Service Reform Act,15×15. Ch. 27, 22 Stat. 403 (1883), amended by Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111. Federal Vacancies Reform Act of 1998,16×16. 5 U.S.C. §§ 3345–3349. and Impoundment Control Act of 197417×17. 2 U.S.C. §§ 601–688. do not effectively block Presidents from manipulating agency resources, despite being designed to do so.18×18. See infra section III.B.2, pp. 644–48. The Administrative Procedure Act19×19. 5 U.S.C. §§ 551–559, 561–570a, 701–706. (APA) is not much help either. Although Congress defined “agency” broadly in the APA,20×20. Id. § 551(1). the President is generally considered exempt from its scope.21×21. See Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992). Congress also expressly exempted from the statute’s rulemaking requirements “matter[s] relating to agency management or personnel.”22×22. 5 U.S.C. § 553(a)(2). “[R]ules of agency organization, procedure, or practice” are exempt from the Act’s notice and comment requirements as well.23×23. Id. § 553(b)(A). And while statutes such as the Freedom of Information Act24×24. 5 U.S.C. § 552. and other “sunshine” laws force some agency transparency,25×25. See, e.g., id. § 552b(b) (requiring that government agencies’ meetings be open to the public); id. app. §§  2–12 (Federal Advisory Committee Act). these laws are limited in their reach, subject to exemptions, and can be circumvented.26×26. See infra p. 651. The upshot is that Presidents can do a lot to undermine agencies without incurring significant legal risk.

With legal strategies so limited, the best response to structural deregulation is likely to be political. In Part IV, we suggest tools that Congress might use to limit structural deregulation, ranging from ex ante statutory safeguards to ex post oversight. All of these potential responses face serious political hurdles, however, and even if politically viable, they each bring significant downsides. Nevertheless, we conclude that the only way to stop a President bent on structural deregulation is for Congress to push back.


* Archibald Cox Professor of Law, Harvard Law School.
** Associate Professor of Law, University of Colorado Law School. The authors thank participants in the University of Texas School of Law Faculty Colloquium, the Power in the Administrative State Workshop, the University of Colorado Law School Faculty Workshop, and the Harvard Law School Faculty Workshop for helpful feedback on early drafts. We are grateful to the following colleagues for generously providing detailed comments: Ming Hsu Chen, Jane Cohen, Dan Farber, Brian Feinstein, Erik Gerding, John Goldberg, Jack Goldsmith, Howell Jackson, Vicki Jackson, Craig Konnoth, Richard Lazarus, John Manning, Daphna Renan, Ganesh Sitaraman, Jonathan Skinner-Thompson, Sloan Speck, Mark Squillace, Matthew Stephenson, and Oren Tamir. For excellent research assistance, we thank Emma Zarriello, Gabrielle Falcon, and Grace Weatherall.