The Statutory President

Abstract:     
American public law has no answer to the question of how a court should evaluate the president's assertion of statutory authority. This Article aims to develop an answer by making two arguments. First, the same framework of judicial review should apply to claims of statutory authority made by the president and federal administrative agencies. This argument rejects the position that the president's constitutional powers should shape the question of statutory interpretation presented when the president claims that a statute authorizes his actions. Once statutory review is separated from consideration of the president's constitutional powers, the courts should insist, as they do for agencies, that the president's actions be justified by an identifiable statutory authorization. The statutory president, I suggest, is subject to administrative law.

Second, within the framework of judicial review applicable to agencies, the president's claims of statutory authority should receive deference under the rule of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. The president's accountability, visibility, and the transparency of presidential orders provide strong grounds for applying Chevron deference to the president's assertions of statutory authority. This theory thus emphasizes the role of Congress in defining the boundaries of presidential power, while according deference to the president's interpretations of ambiguities within those boundaries. In this way, it aims to structure the judicial role to demand that political accountability be the basis for political power.

Accepted Paper Series