Twenty years ago, Justice Elena Kagan published Presidential Administration in the Harvard Law Review.1 Seventy-five years ago, President Harry Truman signed the Administrative Procedure Act2 (APA). The most important statute in administrative law and Kagan’s enormously influential article are like ships passing in the night. Kagan interrogated the fundamental question of how to control agency discretion.3 Yet she engaged with the APA only in passing. Her failure to recognize the APA’s significance yielded an analysis that, with the benefit of twenty years’ hindsight, stands as an apologia for the United States’ continuing slide toward authoritarianism.
In her “seminal”4 article, then-Professor Kagan celebrated presidential control of the administrative state. “[P]residential supervision” of federal agencies, she argued, “could jolt into action bureaucrats suffering from bureaucratic inertia.”5 It would make agencies “more transparent and responsive to the public, while also better promoting important kinds of regulatory competence and dynamism.”6 Accordingly, Kagan advocated interpreting statutes that delegate authority to agency officials “as allowing the President to assert directive authority.”7 This interpretive move allowed her to bypass the constitutional objections to a President usurping power that is delegated by statute to another officer.8 Her tour de force in administrative law released a flood of scholarship both celebrating and criticizing her analysis.9
Twenty years later, presidential administration is beginning to resemble authoritarianism. As Professor Paul Gowder recently observed:
[A] president may decide that he dislikes Muslims, and hence may decree that immigrants from a bunch of predominantly Muslim countries are not allowed; he may decide to deter the exercise of the lawful right of asylum by taking helpless children, separating them from their families, and locking them up in cages; or he might decide that he dislikes a number of cities who have offered him insult and send federal SWAT teams to beat people up in some of them, while having his Department of Justice declare others among them “anarchist jurisdictions” and seek to withhold law enforcement funds from them.
Structural Deregulation, an article by Professors Jody Freeman and Sharon Jacobs in the most recent issue of the Harvard Law Review, reveals some fundamental flaws in Kagan’s analysis.11 Unlike Kagan, Freeman and Jacobs do not assume that every President acts in good faith to enhance the capacity of federal government agencies to fulfill their statutory mandates.12 Rather, some Presidents employ “structural deregulation,” which “targets an agency’s core capacities” and “erodes [its] staffing, leadership, resource base, expertise, and reputation.”13 While a President employing the tools of “substantive” deregulation aims to weaken “particular agency rules or policies,”14 a President pursuing “structural deregulation” targets “the agency’s capacity to accomplish its statutory tasks.”15 Freeman and Jacobs assert that their analysis “complicates Justice Kagan’s narrative by showing that not all Presidents are committed to maintaining the institutional capacity of the bureaucracy.”16 Actually, their analysis does far more than complicate Kagan’s narrative; it undermines that narrative substantially.
Professor David Noll, in an upcoming issue of the Michigan Law Review, dubs a similar phenomenon “Administrative Sabotage.”17 Like Freeman and Jacobs, Noll rejects the assumption that Presidents administer statutory programs in good faith.18 On the contrary, Noll states that “presidents use agencies to pursue statutory retrenchment that is costly, if not impossible, to obtain directly from Congress.”19 Under a deregulatory President, “presidential administration is a transmission belt for sabotage.”20
Like Freeman and Jacobs, Noll understates the significance of his analysis. Both articles help to demonstrate that we face a major problem with the American presidency, a problem that extends beyond structural deregulation or administrative sabotage. Whether the President favors regulation or deregulation, building agencies or tearing them down, Presidents now overstep their bounds regularly.21 For American democracy, the problem is existential.22
This Essay builds on Freeman and Jacobs’ Structural Deregulation by examining the consequences of Kagan’s failure to engage with the APA in Presidential Administration. She searched for the best means to control agency discretion,23 but overlooked Congress’s superstatutory answer to that question.24 Over the past twenty years, many scholars have interrogated Kagan’s analysis,25 but none has analyzed her failure to recognize the importance of the APA.26 The APA is the fundamental charter of the modern administrative state. Its enactment in 1946 marked a constitutional moment at which Congress, the President, and the Supreme Court accepted broad delegations of policymaking authority to agencies, but only if the agencies were procedurally constrained and subject to judicial oversight.27
Part II of this Essay shows that presidential administration has led the United States’ democracy down the path toward authoritarianism. Presidents from both parties regularly make final decisions unilaterally with little check from Congress or the courts.28
Part III sketches the strategy Kagan employed in Presidential Administration to avoid the constitutional difficulties her theory posed. Kagan bypassed those issues by interpreting statutes that delegate authority to a particular officer as allowing the President to assume that power. With the benefit of hindsight, we can see now that her strategy enabled dangerous growth of presidential power.29
Part IV then argues that the APA undermines the constitutional foundation upon which presidential administration stands. The APA reflects Congress’s proper role as the primary overseer of the administrative state. It codifies the conditions that legitimize statutory delegations of authority to agencies and the procedures that Congress, the President, and the Supreme Court agreed were appropriate before imposing agency authority on citizens. And it reflects the judgment of those who lived through the Great Depression, European fascism, and World War II about how best to construct a federal bureaucracy without paving a path to tyranny.
Finally, Part V argues that refocusing on the APA’s core values — public participation, transparency, deliberation, and uniformity — would help to forestall the United States’ democratic backsliding. Overlooking the APA allowed Kagan to substitute her values — efficiency and accountability — for Congress’s values. The APA represents the grand bargain of the administrative state, as well as an agreed-upon set of normative principles motivated by constitutional and rule of law values. By devaluing it, Kagan undermined this monumental political bargain, long-standing constitutional principles, and values that prevent the federal bureaucracy from becoming the tool of a dictator. In administrative law, we ignore the APA at our peril.
II. Democratic Backsliding in the United States
Kagan’s Presidential Administration has turned out to be an important piece. It was the most cited article of 2001.30 Leading minds in the field call Presidential Administration “foundational”31 and “enormously influential.”32 Moreover, Kagan was a preeminent academic and public servant before taking a seat on the Supreme Court, where she has become a brilliant and influential Justice.33 As attorney Kevin Bohm observed: “This is a person whose thoughts on constitutional issues matter a great deal.”34
In Presidential Administration, Kagan observed that “the courts usually have ignored the very existence of the President in their articulation of administrative law,”35 seemingly assuming “the absence of strong presidential involvement in agency decisionmaking.”36 Now it is impossible to ignore the President’s power over the federal bureaucracy and the dangers of presidential administration.37
Twenty years after Kagan celebrated presidential administration, the United States’ democracy is moving toward authoritarianism.38 The umbrella term “[a]uthoritarianism . . . refers to non-democratic systems,” including totalitarian, fascist, and dictatorial regimes that “rely on a mix of legitimacy and coercion” to retain power.39 Authoritarian governments may conduct elections and have some democratic institutions, as well as courts and constitutions. But “they use those elements to maintain their power.”40 A democracy may become authoritarian through a gradual process that Professor Nancy Bormeo calls “democratic backsliding” or “executive aggrandizement” whereby “an elected executive uses legal channels to disassemble institutional checks on executive power and interbranch accountability.”41 In other words: “A constitutional liberal democracy can degrade without collapsing.”42
The hallmark of authoritarianism is unilateral decisionmaking by a single person.43 Certainly, the United States is not an authoritariannation, but unilateral presidential decisionmaking has grown steadily over the past fifty years.44 Professor Phillip Cooper dedicated a fantastic volume to detailing the many mechanisms of “presidential direct action.”45 Sometimes Presidents act as the “Statutory President” pursuant to statutes that delegate power to the President.46 President Obama, for example, redirected up to $70 million to meet “unexpected urgent refugee and migration needs” and entered into the Trans-Pacific Partnership Agreement.47 President Trump withdrew from the Trans-Pacific Partnership Agreement and redirected billions of dollars to build a wall between the United States and Mexico.48 On the day he was inaugurated, President Biden halted construction of the wall.49 Other times, Presidents act pursuant to statutes that delegate authority not to the President but to some other officer, effectively putting the President in the position of Supersecretary in Chief.50 For example, even though the Immigration and Nationality Act delegates enforcement discretion to the Secretary of Homeland Security,51 Presidents Obama, Trump, and Biden all dictated U.S. immigration enforcement policy.52
Presidents have created new mechanisms for controlling the substance of broad swaths of regulatory activity. Ten days after his inauguration, for example, President Trump issued an executive order that required agencies to repeal two regulations for every new one issued.53 The same Order imposed on all agencies a regulatory budget capping the incremental cost of new regulations.54 A month later, Trump ordered agencies to create Regulatory Reform Task Forces to evaluate which existing regulations could be repealed or modified.55 Trump made unprecedented forays into agency adjudication. For example, he prohibited agencies from initiating enforcement action or taking any action with legal consequences based on standards of conduct that have not been “publicly stated.”56 Trump even politicized the hiring and firing of all federal employees in policymaking positions.57 For his part, President Biden ordered all federal agencies to advance equity for “communities that have been historically underserved”58 and “make evidence-based decisions guided by the best available science and data.”59
Much unilateral presidential decisionmaking goes unchecked. Certainly, Congress does not rein in the President effectively.60 Judicial oversight also falls short.61 As Freeman and Jacobs observe, while “‘presidential administration’ is at its apex, courts are unwilling to check executive power.”62 The President is not amenable to suit under the APA.63 Indeed, the federal courts of appeals are split on the most basic question of whether the courts may ensure that the Statutory President has acted within the scope of their statutory authority.64 No federal court will review presidential decisions for abuse of discretion.65 Suing the agency that implements the President’s decision does not provide complete judicial oversight because where an agency lacks discretion — as when it is following a presidential order — its action is unreviewable.66 Freeman and Jacobs elucidate other reasons for the courts’ failure to oversee structural deregulation adequately: constitutional and prudential doctrines governing the availability of judicial review; deference to agency inaction and delay; and inadequate statutory provisions for judicial review.67 Despite some notable exceptions,68 overall the courts have not constrained presidential power adequately.
Twenty years’ experience has demonstrated that “presidential administration . . . raises the specter of tyranny.”69 It “is downright dangerous.”70 Obviously, national elections do not prevent autocracy.71 By centering “national politics around a single, charismatic leader who claims a democratic mandate,” presidential administration “walks perilously close to a kind of plebiscitary dictatorship.”72 Hence, in his book analyzing the dangers of presidential unilateralism, Professor Peter Shane warns that we face a “constitutional perfect storm [that] has put the design of our democratic republic at risk.”73 To make matters worse, presidential administration is a “one-way ratchet.”74 Each President builds on the prior President’s framework for controlling the government.75 In Shane’s words: “The groundwork has been laid for an executive branch dangerously excessive in its exercise of effectively unchecked power, no matter who is in the White House.”76
III. Kagan’s Statutory-Interpretation Detour
Kagan recognized that presidential administration posed constitutional challenges. Rather than face those issues head-on, however, Kagan used a theory of statutory interpretation to bypass them. That strategy ultimately failed. Kagan legitimated presidential administration by offering a high-profile defense from a prominent Democratic scholar and public servant and thus helped to grease the skids for the United States’ slide toward authoritarianism.77
Kagan recognized that presidential administration raises “serious constitutional questions.”78 She located the problem in separation of powers doctrine: when the President assumes power delegated by statute to another federal officer, “the President . . . exceeds the appropriate bounds of [the] office.”79 She agreed that the President “must respect” Congress’s decision to delegate decisionmaking authority to a particular officer.80 President Truman’s seizure of the steel mills, for example, “violated the Framers’ decision to ‘entrust the lawmaking power to the Congress alone.’”81 Kagan further acknowledged the “conventional view”82 that “Congress, under the [Supreme Court’s] removal precedents, can insulate administrative policymaking from the President, and Congress has exercised this power by delegating the relevant discretion to a specified agency official, rather than to the President.”83 In other words, Congress can limit the President’s ability “to direct administrative officials in the exercise of their substantive discretion,” effectively forcing the President to fire an official who refuses to follow a presidential directive.84
Kagan did not employ the contrary unitary executive theory, which posits that the President has “plenary control over all heads of agencies,” to justify presidential administration.85 Proponents of the unitary executive theory had not proven their claim to her satisfaction “as a matter of constitutional mandate.”86 The original meaning of Article II, she said, “is insufficiently precise” and the “constitutional values” supporting the theory “too diffuse.”87 She also thought the case law supporting the “conventional view” was “almost certain to remain the law.”88
Rather than face head-on the constitutional problems with her theory,89 however, Kagan treated the entire matter as “an interpretive question”90 and employed a presumption that “a statutory delegation to an executive agency official . . . usually should be read as allowing the President to assert directive authority.”91 Stated plainly, her assertion was: presidential administration is legal because Congress hasn’t said it isn’t.92 She reasoned that Congress must know that executive branch officials are subordinate to the President.93 Hence, “when Congress delegates to an executive official, it in some necessary and obvious sense also delegates to the President.”94 Moreover, the difficulty of distinguishing presidential directives from other forms of presidential control reinforced Kagan’s guess that Congress does not intend to limit presidential directives absent “specific evidence of that desire.”95
Later in the piece, Kagan returned to the potential downsides of her theory. Presidential administration, she recognized, “pose[s] a risk of both tyranny and instability.”96 To her, those objections reflected “conservative values” that should yield to the countertradition supporting a vigorous executive.97 Kagan believed that divided government and the resulting lawmaking gridlock necessitate “energetic leadership” from the President.98 Kagan did not fear presidential overreach because she believed that the President’s political accountability to the public would “keep energy in check by mooring it to current . . . public opinion.”99 Congress, the courts, interest groups, and other federal officers also would help to constrain the President.100 She acknowledged that Presidents may be more likely than other officers to exceed the bounds of statutory authority, but she believed that the courts could keep the President in line.101 Although the President is not an “agency” subject to judicial review under the APA,102 when the President “has stepped into the shoes of an agency head, . . . the review provisions usually applicable to that agency’s action should govern.”103
Determining the President’s proper role through an interpretive presumption, as Kagan did, failed to respond to the serious constitutional problems she herself acknowledged. That was her strategy.104 She even acknowledged that the entire discussion had a “fictive aspect”105 and ultimately turned on administrative law values.106 In short, Kagan bypassed the constitutional questions her analysis raised and followed a statutory interpretation detour driven by her values. That detour led Presidential Administration down the path toward authoritarianism.
IV. Congress’s Solution: The APA
Had Kagan paid the APA sufficient heed, she probably would not have taken the statutory interpretation detour, but would have stayed the constitutional course and recognized that presidential administration is deeply problematic. The APA is premised on Congress having the authority to arrange the administrative state. It codified the conditions that legitimize statutory delegations of authority to agencies. It represents an agreed-upon set of principles cabining agency authority over citizens. And it embodies the wisdom of those who lived through the Great Depression and World War II, and who witnessed the growth of European fascism, about how to build a federal bureaucracy without enabling authoritarianism. Indeed, Kagan’s analysis is inconsistent with the APA’s very existence.
A. Kagan and the APA
Kagan paid scant attention to the APA in Presidential Administration.107 She mentioned it for the first time on the eighteenth page of her 141-page article. There she explained that Congress’s shift towards delegating power to agencies spurred a backlash against expertise. The APA reflects that skepticism by procedurally constraining agency policymaking.108 She also recognized that judicially imposed procedural requirements that exceed the APA’s requirements have made agencies hesitant to change policy.109 And she noted that President Clinton adhered to APA procedures when he “effectively placed himself in the position of a department head.”110
Most importantly, though, Kagan opined that the APA’s judicial review provisions should apply to the President when the President usurps another officer’s statutory authority.111 She recognized that “presidential administration . . . poses a danger of . . . lawlessness” because “Presidents . . . tend to push the envelope when interpreting statutes.”112 The “simple, if sometimes imperfect, solution,” she opined, is judicial oversight.113 I agree that, absent an order striking down the President’s usurpation as unconstitutional, the APA should apply to a President acting as Supersecretary in Chief.114 Unfortunately, no federal court agrees with us.115 Her engagement with the APA went no further.
Ultimately, Kagan sought to answer the “perennial question of how to ensure appropriate control of agency discretion.”116 She began: “The history of the American administrative state is the history of competition among different entities for control of its policies.”117 Her answer was “presidential administration.”118 Yet Congress had already answered the question of how to control the burgeoning bureaucracy when the APA passed both houses without objection in 1946 and earned President Truman’s concurrence.
B. The APA’s Constitutional Valence
The APA undermines the constitutional foundation of presidential administration. First and foremost, the APA reflects Congress’s proper constitutional role as the primary creator, organizer, and controller of the administrative state. In the 1930s and 1940s, as the federal bureaucracy blossomed, it was Congress that created the new agencies, specified their organization in organic statutes, and ultimately controlled their procedures and subjected their actions to judicial review through the APA.
Alongside the seventeen-year debate about administrative reform that culminated in the APA of 1946, Congress simultaneously explored the President’s power to organize and control the executive branch.119 President Roosevelt created the Brownlow Committee to investigate updating the administrative management of the federal government.120 He transmitted the Committee’s report to Congress in 1937, expressly denying that he was trying to increase the powers of the presidency.121 Nonetheless, the report was seen as an attempt to shift power from Congress to a potentially dictatorial President.122 Ultimately, Congress gave President Roosevelt only some of the power he sought. Under the Reorganization Act of 1939, the President’s proposals to reorganize executive branch agencies would go into effect sixty days after their submission to Congress unless rejected in a concurrent resolution.123
Less than two months after President Truman signed the APA, he signed the Legislative Reorganization Act of 1946.124 Concerned that it had lost control over the growing federal bureaucracy, Congress enhanced its oversight of federal agencies by moving agency oversight from ad hoc investigatory committees to a smaller number of standing committees.125 The Act “promised to end administrative abuses of authority by restoring Congress to its rightful place of primacy over the administrative state.”126 In the end, it may have been “more of a political achievement than a legal one,”127 but it too reflects Congress’s proper constitutional role in controlling the administrative state.
Kagan’s presumption that Congress’s delegations of authority to particular officials may be disregarded flies in the face of that history and the basic constitutional tenet it reflects. Of course, Kagan knew about the Brownlow Committee.128 Yet she failed to recognize the significance of Congress’s response to the Brownlow Report, followed by the APA. She did not even mention Congress’s assertion of authority in the Legislative Reorganization Act. At the time in our nation’s history when the federal bureaucracy was growing by leaps and bounds, it was Congress that exercised primacy over agencies, and it was Congress that determined how much power the President had to organize the executive branch.
Second, the APA codified the conditions that legitimize statutory delegations of authority from Congress to agencies. Professors Daniel Rodriguez and Barry Weingast explained that beginning in the Progressive Era, the Supreme Court confronted a “long series of questions . . . concerning the appropriate scope of agency power.”129 During the New Deal era, “the federal government . . . expanded at a break-neck pace.”130 As Congress attempted to address “new and vexing problems” with novel “institutional strategies,” the Court instructed Congress on “how to reconcile these new regulatory innovations with constitutional doctrine.”131 Essentially, the Court “provide[d] a template for Congress in solving these problems.”132 Congress could delegate power to agencies if it provided “intelligible principles”133 to cabin agency discretion and “suitable procedural safeguards.”134 Crowell v. Benson,135 A.L.A. Schechter Poultry Corp. v. United States,136 SEC v. Chenery Corp.,137 and other cases, “put forth standards for agencies to follow to ensure fidelity to an emerging conception of the rule of law in the administrative law.”138 In addition, if statutory delegations to agencies were to pass muster, the judiciary would have to maintain “a supervisory role.”139
The APA grew out of that Court-Congress dialogue.140 It marked the culmination of Congress’s response to those Supreme Court opinions and codified a bargain between Congress and the Supreme Court: Congress would be permitted to delegate authority to agencies if it provided for certain procedures and judicial oversight.141 Essentially, the APA’s enactment marked a constitutional moment142 at which all three branches of government accepted the existence of the administrative state and broad delegations of authority to agencies in exchange for procedure and judicial oversight.143 This superstatute144 provided the “necessary quid pro quos for the creation of administrative agencies combining traditionally separated functions and exercising broad discretionary authority.”145 Thus, the legitimacy of statutory delegations of power to federal officers is premised on control of those officers as provided in the APA.
When the President exercises power assigned by statute to another federal officer, that control is missing, and the legitimacy of the delegation itself is undermined. Indeed, underlying statutory delegations is the assumption that the officers exercising delegated power will be subject to the APA’s procedural requirements and judicial review, unless the statute itself provides otherwise.146 The President, however, is not an “agency” under the APA (according to the Supreme Court), and hence is not bound by its procedural constraints or judicial oversight.147
Third, the APA codifies the procedures Congress, the President, the Supreme Court, the American Bar Association (ABA), and other interested parties agreed were appropriate before imposing agency authority on citizens. To begin, presidential administration amends the rulemaking process without bicameralism. The APA requires an agency to publish notice, accept comments, and consider the relevant matter presented before imposing a binding rule on the public.148 Presidential administration short-circuits that process by allowing the President to dictate the agency’s final decision. Even if the agency goes through the notice-and-comment process following the President’s mandate, at that point the process is somewhat superfluous because the agency doesn’t have the discretion to disagree.149 Presidential administration thus upends the judgment reflected in the APA about what process should precede an agency’s imposition of rules on citizens.
Professor Kenneth Culp Davis advanced a parallel point in 1982 when he argued that regulatory review in the Executive Office of the President (EOP) under Executive Order 12,291 allowed the EOP to alter agencies’ final rules without notice and comment.150 The APA’s rulemaking procedures, he said, had “crystalized” the United States’ advance away from autocratic governance.151 Executive Order 12,291 thus represented “a return, to some extent, to autocratic government.”152
Relatedly, presidential administration may violate the President’s duty to faithfully execute the law. As Freeman and Jacobs explain, the Take Care Clause “impose[s] an affirmative obligation on the President to enforce the laws Congress passes.”153 Like any fiduciary, the President “must diligently and steadily execute Congress’s commands”154 and “ensure that the laws are implemented honestly, effectively, and without failure of performance.”155 Among other things, that obligates the President to provide whatever procedure statutes require before taking final action, including, of course, notice and comment under the APA.156
Fourth and finally, the APA reflects the Greatest Generation’s judgment about how to construct a federal bureaucracy that does not lead to authoritarianism.157 I described recently how the fear that FDR would become the United States’ first dictator shaped the APA.158 Many of its provisions were designed to prevent agencies from being controlled by an authoritarian President.159 Judicial review, separation of functions, procedural constraints, and publication of agency materials were designed to “permit extensive government, but . . . avoid dictatorship.”160 Ultimately, the APA “codified the consensus that the federal bureaucracy need not result in authoritarianism.”161 Of course, the APA has not prevented democratic backsliding.162 But it’s better than presidential administration. Interpreting it correctly would be better still.163 In any event, it’s the law of the land, and using a theory of statutory interpretation to bypass the constitutional difficulties with her theory, as Kagan did, was flatly inconsistent with the APA.
Ultimately, Kagan’s analysis is itself constitutionally suspect insofar as it puts courts in the position of rebalancing statutory bargains based on ungrounded statutory interpretation theories and administrative law values. As a Supreme Court Justice, Kagan now recognizes that courts don’t have the expertise to judge executive branch structure. In Seila Law LLC v. Consumer Financial Protection Bureau,164 the Court held unconstitutional a statute requiring the President to have cause to remove the Director of the Consumer Financial Protection Bureau.165 Kagan dissented. The Constitution, she wrote, “mostly leaves disagreements about administrative structure to Congress and the President, who have the knowledge and experience needed to address them.”166 In her estimation, the courts’ “understanding of the realities of administration” is simply “inferior.”167 As a consequence, when Congress assigns responsibilities to a particular officer and mandates a particular decisionmaking procedure, the courts should respect that judgment.
By the same token, courts are not equipped to weigh the various values at play in designing the administrative state. The APA struck a balance “between a host of incommensurate values,” and ultimately, “[i]t is Congress’s role, not the courts’, to strike that balance.”168 The political branches are simply “better qualified to order and balance the complex . . . interests in the structure of the administrative state.”169 Any attempt to rebalance those interests “is likely to be arbitrary.”170
V. Moving Forward by Looking Back
The APA represents the grand bargain of the administrative state. It also reflects an agreed-upon set of normative principles that were grounded on constitutional and rule of law values and designed to prevent the federal bureaucracy from becoming a dictator’s tool. In the APA, Congress prioritized public participation, transparency, deliberation, and uniformity. Refocusing on those values would help forestall the United States’ slide toward authoritarianism.
Kagan’s analysis in Presidential Administration hinged on accountability and effectiveness as “the principal values that all models of administration must attempt to further.”171 In particular, her theory that statutes delegating authority to a particular officer should be read as permitting the President to exercise that authority hinged on her belief that accountability and effectiveness “optimally should determine Congress’s and the President’s choices.”172 Those values’ intellectual roots reach at least as far back as Progressive Era public administration thinking,173 if not considerably further.174 Yet Kagan never explained why those values should prevail at the expense of others.175
As Professor Jessica Bulman-Pozen observed, accountability and effectiveness “may scan as more autocratic than democratic.”176 Had Kagan recognized 1946 as the turning point it was, she may have noticed that the grand bargain codified in the APA involved far more than just accountability and efficiency. The APA itself put other values front and center: public participation, transparency, deliberation, and uniformity. Regardless of whether that set of values is normatively superior to accountability and efficiency, Kagan allowed her own values to undermine Congress’s core values, and her focus on those values in such an influential piece of scholarship exacerbated democratic backsliding in the United States.
A. Public Participation
Justice Scalia dubbed notice-and-comment rulemaking “probably the most significant innovation” in the APA.177 That process prioritizes public participation in federal policymaking. Under section 4 of the APA, agencies must publish proposed rules, solicit public comment on their proposals, and consider any input before publishing final rules.178 These procedures make APA rulemaking perhaps “the most open and deliberative of any processes in American federal governance.”179 Those who designed the APA believed that allowing the public to comment on proposed rules would ensure that agencies were fully informed — thus improving the quality of agency rules — and protect private interests — thus making rules more fair.180
In contrast, when the President dictates policy decisions, public input is often entirely absent.181 No mechanism ensures the accuracy of the President’s factual assumptions or hones the President’s decision to make it just. President Obama, for example, solicited no public input before announcing a new immigration enforcement policy, and President Trump didn’t consult the public before rescinding it.182 Similarly, President Trump didn’t go through notice and comment before limiting immigration from certain Muslim-majority nations a week after his inauguration. It took three attempts to draft an order that would withstand judicial review.183 As I observed previously, soliciting public input may have yielded “a more accurate and honed policy” that would have better “accomplish[ed] Trump’s asserted national security goals” and “reduced public dissent simply by making the process more transparent and fair.”184 Likewise, Presidents do not consult the public before cutting agency staffing, leaving leadership positions open, reducing agency budgets, or taking any of the other actions Freeman and Jacobs detail in Structural Deregulation.185 Certainly public input could influence all of those decisions to make them better informed and fair.
Notice-and-comment procedures in an agency that implements a presidential directive will not help much. Once the President stakes out a position on a policy matter, the implementing agency is unlikely to change course.186 Indeed, the agency lacks the discretion to contradict a presidential order.187 Consequently, an agency may ignore public comments on a proposal that suggest the agency act contrary to an executive order.188
Kagan devalued the rulemaking process, asserting that it “has little to do with genuine exchange between regulators and interested parties.”189 Presidential decisionmaking, she believed, would not hinder less formal contacts between policymakers and interested parties.190 Indeed, Kagan asserted that, because the President has a national constituency, presidential decisionmaking would be “more likely to broaden” such informal contacts.191 Of course, she provided no foundation for those assumptions. Professors Jerry Mashaw and David Berke have the better of the argument in asserting that presidential decisionmaking “tends by its very nature to limit the actors who are engaged in policy discussions.”192 Presidential administration tends to cut the public out of the process, thus exacerbating its authoritarian tendencies.
“[T]ransparency is among the APA’s central values.”193 Well before the APA, Congress had begun to prioritize transparency in the Federal Register Act, which required agencies to publish their substantive regulations.194 The APA extended that requirement to procedural and organizational rules, policy statements, and interpretations.195 In addition to those publication requirements, the APA advances transparency by requiring agencies to reveal their proposed rules and explain their final rules.196
The APA’s transparency is designed to reveal the machinations behind agency policymaking, machinations that the office of the President generally hides from public view.197 The Federal Register Act requires publication of any presidential proclamation that binds the public.198 Beyond that, the President determines the opacity of presidential procedures and decisions. Consequently, presidential decisions often are made in a black box with no means of uncovering what information the President considered, who influenced the President, or what process the President followed.199 Indeed, Presidents may invoke executive privilege to hide all of this material.200
Thus, Freeman and Jacobs undoubtedly are correct in asserting that “[s]tructural deregulation’s relative obscurity . . . contravenes longstanding administrative law norms [such as] . . . transparency.”201 Consider, for example, President Trump’s interference with the Centers for Disease Control and Prevention, which Freeman and Jacobs describe,202 or President Obama’s creation of twenty-nine national monuments.203 What process did the Presidents follow in reaching those decisions? Whom did they consult? What did they read? Without the APA, we may never know.
Kagan argued that presidential administration “enhances transparency”204 insofar as it enables the public to “understand the sources and levers of bureaucratic action.”205 Agencies, she asserted, are “the ultimate black box . . . impervious to full public understanding.”206 The President, in contrast, has “visibility” and “personality” that she believed “render the office peculiarly apt to exercise power in ways that the public can identify and evaluate.”207 Presidential administration, she asserted, is more “conducive to public understanding” than agency policymaking.208
Kagan’s use of the term “transparent” diverged from the normal use of that term in administrative law. She seemed to mean that policy decisions could be attributed to the President.209 In other words, “the direct connection between the President and public” makes it transparent who is driving the bureaucratic train.210 What Kagan labeled “transparency,” then, is more accurately seen as a matter of political accountability.211 Regardless of whether she was correct, she allowed her value — accountability — to override Congress’s value — transparency — and, in undermining transparency, she exacerbated the United States’ drift toward authoritarianism.
Deliberation is another of the APA’s core values.212 The APA’s architects designed notice-and-comment rulemaking “to assure due deliberation” in agencies.213 Scholars count it among the most deliberative processes in U.S. governance.214 In adjudications, the deciding official must consider facts and arguments, among other things.215 Deliberation requires agencies to consider their actions carefully,216 and it prevents them from acting based on raw politics and contrary to the public interest.217
Presidents, by contrast, are “inherently non-deliberative,” political actors.218 Freeman and Jacobs highlight, for example, President Trump’s diversion of federal funds away from the military and the Federal Emergency Management Agency to pay for a wall between the United States and Mexico and immigration enforcement.219 Had the President been subject to the APA, he may have considered the ramifications of that decision for the larger public interest and found other ways to pursue his policy. Moreover, presidential decisionmaking necessarily reduces deliberation within agencies.220 As explained above,221 when the President dictates a decision, the deliberative processes that normally would lend democratic legitimacy to the agency’s decision are short-circuited.222
Kagan did not address deliberation directly. On a related note, she asserted that most administrative policymaking is premised on “value judgments” that are “essentially political choices.”223 This relates back to her emphasis on accountability. Kagan preferred a policymaking process that “best promotes responsiveness to the policy preferences of the general public.”224 Unfortunately, the APA — the statutory constitution for the “fourth branch”225 — does not share that value. The APA does not envision administrative decisionmaking as a popularity contest.
Finally, as I explained in detail elsewhere, one of Congress’s primary goals in the APA was to achieve some level of uniformity in agency policymaking.226 That goal constituted a normative commitment.227 In its effort to make agencies less confusing and more fair, Congress designed the APA “to be operative ‘across the board.’”228 All agencies were subject to the same procedures and the same judicial review.229
Presidential decisionmaking undermines uniformity by substituting ad hoc decisionmaking for statutory procedure.230 Freeman and Jacobs explain that structural deregulation “is largely informal,” unilateral, and avoids the notice-and-comment process.231 The many mechanisms for structural deregulation reach fruition through varied processes, making presidential decisionmaking obscure and inequitable — exactly what the APA sought to avoid. Yet again, Kagan failed to recognize, much less justify her departure from, this core commitment in the APA.
E. Don’t Let Perfect Be the Enemy of Good232
Freeman and Jacobs are no doubt correct that the APA “offers an unsatisfying response to structural deregulation.”233 First, they point out that it does not apply to the President.234 But the Supreme Court’s conclusion that the President is not an “agency” under the APA is wrong as a matter of statutory interpretation, history, and constitutional analysis, as I explain elsewhere.235 That decision should be overturned by the Court or overridden by Congress.236
Freeman and Jacobs also point out that the APA “shields an agency’s managerial decisions from public scrutiny.”237 Section 553 exempts “rules of agency organization, procedure, or practice” from notice-and-comment rulemaking requirements,238 and section 552 exempts from public disclosure “matters . . . related solely to the internal personnel rules or practices of an agency.”239 Assessing whether the many judicial applications of those provisions are correct is beyond the scope of this paper. Perhaps those provisions deserve amendment or clarification to combat the excesses of presidential administration. Likewise, the courts’ reluctance “to police agency inaction and delay”240 may reflect erroneous interpretation or necessitate an amendment of the APA. Even with those limitations, though, effectuating the APA’s constitutional valence and normative vision would go a long way towards stalling the United States’ slide toward authoritarianism.241
In Presidential Administration, then-Professor Elena Kagan celebrated the Clinton Administration’s effectiveness. Twenty years later, we see that the cost of that vigor was too high. As Freeman and Jacobs explain, presidential control of the federal bureaucracy has made agencies vulnerable to evisceration. It allows a deregulatory President to undermine the substantive goals Congress sets for an agency by statute. It thus encroaches on Congress’s lawmaking authority and undermines “longstanding administrative law norms,”242 doing “lasting damage” to our nation.243
However, the problem Freeman and Jacobs discuss is merely one part of a larger phenomenon. If there is a flaw in their article, it’s that they don’t go far enough. Their analysis accomplishes far more than they claim; it helps to demonstrate that we face a much larger problem with the American presidency. Whether the President favors regulation or deregulation, building agencies or tearing them down, Presidents now overstep their bounds regularly. They act not merely as Administrator in Chief, guiding the officers who are charged with implementing federal statutes. Rather, Presidents also act as Supersecretary in Chief. They regularly direct agency action despite statutory delegations to another officer and without the procedure and judicial oversight that accompany agency decisionmaking.244 The American President is now the dictator of the administrative state.
Kagan’s paean to presidential administration turns out to have been shortsighted. She focused on effectiveness in part because she observed that agencies had become ossified.245 With a divided Congress failing to take the lead on policy formation, and agencies stuck in a procedural mire, she turned to the President to make government work.246 She didn’t anticipate that a President could or would meddle with “all, or even all important, regulation.”247
In many ways, the pendulum of agency effectiveness has swung back the other way, and Kagan’s assumption that no President could “substitute all his preferences for those of the bureaucracy”248 has proven to be myopic. In its first one hundred days, every presidential administration releases a flurry of policy changes on the most significant issues facing our nation.249 Agencies rush to keep pace and implement the President’s agenda before the clock runs out.250 At the direction of the Supersecretary in Chief, agencies may sacrifice deliberation and fairness for speed.251
We must rein in the presidency to forestall the United States’ slide toward authoritarianism. I’ve suggested one way to move in that direction: recognize that the President is an “agency” under the APA.252 Thus, when the President exercises purely statutory authority, the APA’s rulemaking and judicial review provisions would apply as they would to any agency. I’ve also argued that the Supersecretary in Chief should not be tolerated; the President should not be permitted to usurp statutory authority delegated to another officer.253 Recognizing that the current Supreme Court is unlikely to follow that path, I argued that subjecting the Supersecretary in Chief to the APA provides a second-best alternative.254
Beyond rebuilding agency policymaking capacity,255 Freeman and Jacobs recommend that Congress mandate minimum staffing levels in legislation;256 require agencies to report to Congress before relocating staff and resources; enhance civil service protections; provide for APA review of structural changes like hiring freezes and funding reallocations; and narrow the exemption from notice-and-comment rulemaking for rules related to “agency management or personnel.”257 They also counsel agencies to establish criteria governing such changes in binding regulations.258 And they caution courts not to allow Presidents to “incapacitate agencies and then later claim incapacitation as grounds for inaction.”259 Other scholars advance their own proposals for controlling the President.260
The APA must be part of the solution. It is not just the law of the land; it also “represents an extraordinary moment of deliberative democracy.”261 Congress debated administrative reform bills for the better part of seventeen years, with dozens of federal agencies, the ABA, and other interested parties playing crucial roles.262 The bottom line, as attorney Steven Croley observed, is that the APA “really matters,” and omitting it from any “theory of regulation is leaving much out indeed.”263 Returning to the APA’s constitutional and normative vision would help forestall democratic backsliding in the United States.
* Professor, Rutgers Law School, The State University of New Jersey. The author received funding from the C. Boyden Gray Center for the Study of the Administrative State to prepare and present this Essay at the Presidential Administration and Political Polarization Research Roundtable. Many thanks to Roundtable participants for assistance in shaping this paper. Thanks also to David Noll, Chris Walker, and the Harvard Law Review editors for helpful comments.