Introduction
Contemporary American governance is the product of a recent constitutional transformation. Previously, we may have had “Congressional Government,”1 “a state of courts and parties,”2 or “a Regime of Separated Powers.”3 But now we live in an era of presidential primacy.4 Control of the White House is so central to our governance that the transition from one President to another amounts to “regime change.”5
The dominant narrative of how this shift occurred is incomplete. It overlooks the legal bases of presidential power over administrative agencies and how they were forged. As a result, it does not grapple enough with the legal nature of presidential administration, its political economic stakes, or the range of possible alternatives.
This Article offers a historical corrective. It reconstructs how the law was reshaped to make presidential dominance of the administrative state possible. It shows that the administrative presidency began as a collaborative project of Congress and the President to enhance government efficacy and accountability. It then traces how this tradition, consistent with what we term “administration under law,” was eclipsed in the second half of the twentieth century, as Presidents sought grounds for unilateral action. Starting with President Ronald Reagan, Presidents began to assert claims to direct administrative action drawn from the Constitution, relying on the Opinions Clause and the Take Care Clause to claim the authority to direct administrative action.6 These moves developed into the theory of the “Unitary Executive,”7 the Supreme Court’s neo-formalist separation of powers jurisprudence, and the presidentialist government we have today.8
At first, Reagan’s power grab was politically explosive. The new “presidential administration” was explicitly deregulatory.9 Congress fought back, but was thwarted, in part due to Supreme Court intervention and in part due to the election of President Bill Clinton, whose administration embraced Reagan’s legal innovations and aspects of his policy agenda.10 Subsequently, the tradition of administration under law, which Congress had defended, was repressed and then largely forgotten.
Today, we live in the world the presidentialists made. Even as scholars and critics rethink the power of an overweening Executive, they do so within the presidentialists’ legal frame. We no longer question whether the President has the power to direct agencies; we ask how far that power extends. Whether it is the power to remove agency heads or the unitariness of the Executive, our current debates are fundamentally about the outer limits of presidential primacy. A different balance of power between the branches involving other tools — such as congressional oversight or agency self-monitoring — is rarely considered.
Our narrowed imagination is in part a result of our historical misremembering. The standard account of the rise of presidential administration offers a sanitized, motivated, Whig history. According to its terms, presidential control of the administrative state is perhaps inevitable and certainly welcome. For instance, one scholar praised Clinton’s emphasis on executive review as a step toward “the restoration of two central principles of the original Constitution — tricameralism . . . and federalism.”11 Similarly, another professor, reflecting on his “personal perspective,” concluded that “presidential regulatory review . . . is warranted on policy grounds.”12 Even critics of the new presidentialism recount the history of the growth of presidential administrative power in primarily theoretical terms. For example, in an important article, Professor Thomas Merrill described the shift to presidential administration as a misguided attempt to replace an American “positivist tradition,” with its emphasis on statutory authority, with a “process tradition” and norms of reasonableness,13 reprising the dominant scholarly approach to this history as a story of bloodless, independent ideas, succeeding each other in neat progression.
No scholar has been more influential in framing the standard account or better exemplifies its shortfalls than then-Professor Elena Kagan. In a 141-page article in the Harvard Law Review, Kagan reconstructed the development of presidential administrative primacy, portraying presidential administration as the logical culmination of an evolutionary process.14 Her article, Presidential Administration, was at once a meditation on the path of American administrative governance and a defense of presidential superintendence.15 While scholarly attention in subsequent years has understandably focused on the normative merits of presidential administration,16 Kagan’s historical account —which was generally reflected in the work of her contemporaries17 —has gone mostly unexamined.18
Yet her history is flawed. It represses conflict and contingency and, oddly for legal history, overlooks changes in legal doctrine. Kagan’s partisanship comes across most clearly in her stadial account of the growth of presidential administrative power. Presidential Administration presents the development of the administrative state as a passage from one form of governance to another, with congressional primacy giving way to agency self-rule before culminating in presidential administration.19 This Hegelian development is driven by the search for greater rationality in the regulatory state. On her account, each of the prior stages of administrative management suffered from flaws that endangered the state’s effectiveness or legitimacy.20 Only the emergence of presidential administration resolved these contradictions and put the administrative state on firm democratic and practical footing.21 The story is presented as uncontroversial and fundamentally progressive. For Kagan, the Clinton Administration becomes something like the end of history for administrative law.22
This narrative generates two blind spots. First, it obscures the risks posed by constitutionalized presidentialism. As Merrill warned, “[t]he long-term prospects of an administrative law based solely on process norms are cause for concern[,] [u]nless process norms are themselves embodied in and enforced as positive law.”23 Second, it submerges the substantive political agenda that drove the rise of presidential administration as well as the legal revolution that rise produced. Virtually absent from Kagan’s account are the institutional politics, legal innovations, and ideological conditions that made the shift to presidential administration possible. By offering a selective and irenic history of presidential administration, the standard account deprives us of tools to assess its internal dangers, as well as the concepts to push back against its excesses.
This Article offers a new history of the rise of presidential administration. Instead of presenting, as the standard account often does, the recent past of presidential administration as a smooth working out of a particular notion of administrative governance, we turn our attention to the political, intellectual, and legal battles in which it was forged.24 We show how the passage to presidential administration was deeply contested, both institutionally and intellectually, during the period from 1975 to 2000, with special emphasis on the Reagan Administration. We argue that presidential administration’s triumph required the demise of a prior form of governance where Congress played a larger role and that presidential administration’s entrenchment was the product of a bipartisan consensus about the dangers of government interventions in markets and an ever-expanding regulatory state.
Our account unfolds in four parts. Part I examines the 1970s and its antecedents. During that time, administration under law prevailed. Presidents recognized the nineteenth-century “primacy of Congress’s statutes.”25 Accordingly, Congress and the executive branch worked together to build out “the managerial presidency.”26 Their goal was to make government efficacious and accountable through statutory enactments that granted the President specific powers.
This regime simultaneously empowered and constrained the presidency. It empowered the Executive, since Congress regularly enacted new laws that gave the President additional authority over administrative agencies. But it kept the Executive bounded, since statutory grants were often temporary, conditioned on a legislative veto, or otherwise limited. Congress, for its part, continued to use legislation and oversight to carefully influence administrative agencies and check the President’s administrative powers.
Part II turns to the Reagan years. Reagan’s immediate predecessors chafed against legislative constraints. Administration under law prevented the President from taking aggressive administrative action without congressional cooperation. This limited the President’s ability to implement deregulatory policies, as Congress proved more hostile to deregulation (and more committed to the New Deal order) than the White House.
Reagan changed the managerial presidency from a collaborative executive-legislative statutory project into a White House prerogative. The key break came early, when Reagan issued Executive Order 12,29127 (E.O. 12,291), invoking the Constitution to justify executive direction of certain aspects of agency rulemaking. Reagan’s lawyers claimed that Article II empowered the President not only to request information from agencies but also to prevent them from promulgating significant rules without White House sign-off.28
To contemporaries in Congress and in the legal academy, Reagan’s arguments were baseless. Congressional witnesses and scholars catalog-ued the many problems: Reagan had usurped legislative authority in violation of the separation of powers; amended the Administrative Procedure Act29 (APA) without an Act of Congress; and presumed to edit, by mere executive decree, the enabling acts of every nonindependent agency in the federal government.30
The outcry proved in vain. Part III tells the story of how the opposition was quieted and how a new constitutional baseline was constructed. In part, legislative resistance to Reagan’s assertions was undercut by the Supreme Court. In a series of decisions, including INS v. Chadha31 and Bowsher v. Synar,32 the Justices added new constitutional limits to Congress’s ability to direct administrative lawmaking, indirectly bolstering the President’s case for control.
Meanwhile, legal academics developed more expansive visions of executive power. Building on Justice Antonin Scalia’s jurisprudence, especially his dissents in two executive power cases, Morrison v. Olson33 and Mistretta v. United States,34 a cohort of law professors turned the Reagan Administration’s skeletal constitutional claims into a robust theory of presidential power. Professors Steven Calabresi and Saikrishna Prakash became the most prominent members of a group of originalist academics who championed strong claims of executive control.35 In an ironic twist, they appropriated the separation of powers arguments wielded by the defenders of administration under law to justify their competing vision of the presidency. And they revived dicta from Myers v. United States36 that had been largely left for dead following the Court’s unanimous opinion in Humphrey’s Executor v. United States.37
To the extent that the originalists’ most prominent liberal opponents contested the Unitary Executive, they did so less on substance than on method, rejecting originalism for functionalism.38 By the mid-1990s, the scholarly imagination on presidential control over the administrative state had shifted; administration under law had faded39 and the relevant alternatives became presidential administration (an Article II power in the President to superintend agencies in the absence of limits set by statute) and the Unitary Executive (a power in the President to superintend agencies not subject to legislative constraint).
Part IV describes the consolidation of presidential administration in theory and practice. It recounts the ideological and political context in which Clinton entrenched presidential administration as a mode of governance. And it explores how Kagan and her peers legitimated it intellectually. When Reagan announced his executive order in 1981, Democratic party elites resisted what they saw as a Republican power grab. But by the 1990s, the Reagan Revolution had reoriented the Democratic party itself.40 Bill Clinton won the White House in 1992 not by repudiating Reagan but by promising a kind of continuity. The self-proclaimed New Democrats would adopt Reaganite tools — principally Executive Order 12,86641 (E.O. 12,866) — and a Reaganite orientation toward the regulatory state, reducing its scope and ambition. For an observer at the start of the 2000s, presidential administration appeared intellectually triumphant and politically secure.
By reconstructing the making of presidential administration, this Article aims to liberate legal thinking from the constraints of a misleading historical narrative. In this vein, it offers five scholarly interventions.
First, it recenters law and politics. The received story on presidential administration paints the shifts from one form of governance to another as largely changes in styles of thought. Missing is a sense of the political, legal, and ideological battles that fueled and indeed smoothed the way for presidential administration. By doing so, the standard account casts our current institutional arrangements as a fait accompli. But a fuller account reveals historical specificity and contingency. Presidential administration was not an idea working itself pure in real time. It had to be made. It was the result of localized interventions in concrete political and legal fights. It occurred during a generational shift in attitudes to-ward regulation and the role of the state. And it was first challenged and legitimated by legal scholars and enabled by judges.
Restoring our understanding of presidential administration’s origins is especially important given recent trends in administrative law and scholarship.42 The move from statutory to constitutional foundations for presidential oversight of administrative agencies has limited positive law’s place in constraining Presidents and led to a greater reliance on norms and internal executive branch practices. For many scholars, the Trump Administration highlighted the risks of this mode of governance.43 Over the past forty years, executive power over the administrative state has become increasingly deformalized. As the limits on presidential administration shifted from enacted law and congressional and judicial oversight to the Constitution and nonjusticiable internal norms, the President became difficult to subject to traditional legal controls. Rule of law in the executive branch has been replaced with the rule of conventions and the good-faith actions of executive branch lawyers. For contemporary critics of presidential administration, those institutions have turned out to be more malleable than many had expected. Their flexibility is a function of their susceptibility to epistemic drift. As the legal academy and appellate bar shift their views, the meaning of executive branch conventions change.44 The history shows how Reagan’s and Kagan’s theories unsettled the administrative state — and how powerless Congress has been to reverse them. It suggests, in turn, that the kinds of reforms critics propose to bring a presidentially directed administrative state back under the rule of law may require a more thoroughgoing change in our thinking than has been heretofore appreciated.
Second, and relatedly, this Article’s history contributes to our understanding of the relationship between constitutional norms and structure. During the two decades in which presidential administration emerged and consolidated, little changed in judge-made doctrine or statutory law. Insofar as the Supreme Court played a role in building presidential administration, it was indirect: it stripped Congress of tools to resist executive overreach and, through Justice Scalia’s dissents, provided intellectual resources for making unitary executive arguments.45 The driving forces behind presidential administration were executive orders and institutional acquiescence. The baseline prior to presidential administration — administration under law — required the President to seek specific congressional authorization for directing or restructuring agency action. E.O. 12,291 upended that norm by introducing a presidentialist default rule: where Congress did not legislate, the President had residual administrative powers.46 Despite its inchoate constitutional grounds, neither a Democratic Congress nor the courts decisively rejected executive oversight. This history is thus an example of how constitutional structure often depends on and dramatically changes in response to norm erosion and reinvention.47
Third, the narrative underlines the importance of ideology in shaping constitutional structure. According to a leading account, contemporary separation of powers depends on partisan conflict.48 Interbranch conflict follows divided government. This model builds on the assumption that parties are ideologically opposed. This Article and the history it explores show what happens in periods of ideological consensus: Opposed parties and divided government can nevertheless enable tectonic shifts in constitutional structure. In this case, hostility toward an expansive administrative state among elites in both parties helped entrench presidential primacy, as it offered an efficient way to reverse it.49
Fourth, our history of presidential administration reveals the relative novelty of originalist arguments about the role of the President in the administrative state. Unitarianism turns out to be so new that its core arguments were largely missing or ignored forty years ago, including by Reagan Administration lawyers. To use Professor Jack Balkin’s language: the idea that the President has a constitutional power to remove any official outside the Article III judiciary would have struck people in 1981 as “off the wall.”50 It took a new generation of law professors, practitioners, and ultimately judges in the 1990s and 2000s to put these arguments on the wall and bring them within the bounds of legitimate legal disagreement. In making this point, we do not mean to invoke a scholarly version of the antinovelty canon.51 Rather, we mean to point out that the unitary executive theory rests its claims to legitimacy in part on its being a long-accepted, widely shared theory of constitutional interpretation. But the history reveals otherwise and therefore gives us a reason to read unitarian claims differently. Rather than timeless arguments about constitutional interpretation and the structure of government, unitary executive arguments flourished in the wake of extensive economic deregulation.52 Law followed politics.
Finally, this Article highlights an important connection between the separation of powers and political economy. Presidential administration is not, and has never been, merely a matter of institutional design. It has always been about creating a certain kind of government designed to accomplish certain kinds of ends. For most of the last forty years, these ends were generally “neoliberal.” In other words, Reaganite-Clintonite presidential administration was a type of rule by elite lawyers and technocrats that sought, where possible, to free market actors and subordinate legislative politics.53 The resulting shift in administrative law since 1981 parallels neoliberal turns in the law of networks, platforms, and utilities,54 antitrust law,55 and the law of money and bank-ing.56 Each transformation has contributed to central state atrophy, political polarization, and democratic decline. In the broader project of analyzing neoliberal administrative law and understanding how it leads to structural deregulation,57 the rise of presidential administration deserves significant attention.
As a policy matter, this Article’s history suggests caution about historical triumphalism and the costs of unintended consequences. Kagan and her contemporaries carefully staked out a position that they believed would satisfy both regulatory conservatives and progressives alike. They failed, however, to account for the dynamic effects of carving out space for presidential control between the lines of statutory text. The presidential lawmaking they endorsed lacked traditional legal safeguards.58 And the arguments they raised left the administrative state open to existential critique. Presidential administration’s legitimators mistakenly assumed that the Supreme Court’s longstanding jurisprudence on executive power would serve as a bulwark against an imperial presidency — that changing executive interpretations of Article II might lead to changing judicial ones as well. As it happened, in the years that followed Presidential Administration, the judicial branch further hobbled Congress and aggrandized the presidency.59
Today, the specter of a nonmajoritarian, plebiscitary president lurks in the U.S. Reports, ready to co-opt what is left of administration under law. The history in this Article offers resources for understanding the recent constitutionalization of a “disfigured” democracy.60 Denaturalizing presidential primacy in administration is the first step toward imagining a different world.
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* Associate Professor of Law at Columbia Law School.
** Associate Professor of Law at Columbia Law School.
*** Assistant Professor of Law at New York University School of Law. For comments and conversation, thanks to Kate Andrias, Yochai Benkler, Jessica Bulman-Pozen, Daniel Carpenter, Josh Chafetz, Isaac Cui, John Dearborn, John Ferejohn, Kellen Funk, Rick Hills, Amanda Hollis-Brusky, Olati Johnson, Sanjay Jolly, Andrea Scoseria Katz, Jeremy Kessler, Lewis Kornhauser, Gary Lawson, Daryl Levinson, Jane Manners, Henry Monaghan, Jennifer Nou, Rick Pildes, David Pozen, Miriam Seifter, Peter Shane, Jed Shugerman, Karen Tani, Jim Tozzi, Adam White, and participants at workshops and conferences including the Boston University School of Law Clark Legal History Series, the Harvard Law & Political Economy Workshop, the NYU Law Colloquium on Law, Economics, and Politics, the Administrative Law New Scholarship Roundtable, the C. Boyden Gray Center for the Study of the Administrative State Public Policy Conference on Presidential Administration in a Polarized Era, and the National Conference of Constitutional Law Scholars. For invaluable research assistance, thanks to Nathaniel Berman, Isaac Buck, Anisha Dangoria, Ben Healy, Miranda Litwak, Sami Stafford, Nathaniel Thompson, and Isabelle Wechsler. Special thanks to the staff of the Harvard Law Review for superlative edit- ing. Research for this article was supported in part by the Abraham M. Bushman Fellowship for Administrative Law at Columbia Law School and the C. Boyden Gray Center for the Study of the Administrative State at George Mason University.