Presidential Administration Under Trump

Abstract

In an enormously influential 2001 article about the increasingly dominant role of the President in regulation, then-Professor Elena Kagan celebrated the rise of what she called presidential administration. Recognizing the unpredictability of future developments, however, she observed that “the practice of presidential control over administration likely will continue to evolve in ways that raise new issues and cast doubt on old conclusions.” In that spirit, this Essay reexamines her thesis in light of experience under subsequent presidents, with a particular focus on the Trump Administration.

Though the Trump Administration is still less than a year old, it is not too early to start drawing conclusions about its institutional structure and decision-making processes. These seem to be at odds with Kagan’s assumptions about the implementation of presidential administration. Doctrines must be designed with a range of possible executive behavior in mind, not on the basis of one presidency. But that range has turned out to be broader than many scholars had assumed. The Trump Presidency has highlighted risks to presidential administration that were less evident previously. As a result, we need to recalibrate our expectations about presidential behavior and correspondingly our understanding of the functioning of the executive branch. Thus, we may gain a newfound appreciation for some of the institutions and doctrines such as State Farm that may blunt presidential power and strengthen the role of agencies and their professional staffs.

Keywords: Donald Trump, presidential administration, administrative law, administrative agencies, judicial review