Presidential Control of Administrative Agencies: A Debate Over Law or Politics?

Abstract:     
Recent controversy over the unitary executive may be part of what Steven Calabresi and Christopher Yoo have called the “oldest debate in constitutional law.” Yet in this essay, I ask whether this debate is as much legal as it is political. Focusing on the Environmental Protection Agency’s decision to grant California a waiver from national automobile emissions standards, I contrast the divergent reactions to presidential influence under President Bush and President Obama. In both administrations the EPA faced clear presidential pressure, but critics of President Bush’s involvement generally applauded the actions taken by President Obama. The main difference appears to be the policy outcomes the EPA adopted in the Bush and Obama administrations, not that one president interfered and one did not interfere. I further suggest that politics appears to dominate the debate over presidential involvement in administrative decision making because the purported constitutional line between permissible and impermissible involvement is murky and incapable of providing any solid constraint on presidential power. If no meaningful or practical legal constraint on presidential supervision really exists, then perhaps politics is exactly where the debate over presidential authority should remain.

Number of Pages in PDF File: 14

Keywords: Administrative law, unitary executive, constitutional law, independent agencies, presidential power, politics, public policy, directives, oversight

Accepted Paper Series