The Emptiness of Decisional Limits: Reconceiving Presidential Control of the Administrative State
41 Pages Posted: 22 Sep 2017
Date Written: 2017
The heads of administrative agencies exercise authority delegated directly to them through legislation. To what extent, then, may presidents lawfully direct these agency heads to carry out presidential priorities? A prevailing view in administrative law holds that, although presidents may seek to shape and oversee the work of agency officials, they cannot make decisions for those officials. Yet this approach of imposing a decisional limit on presidential control of the administrative state in reality fails to provide any meaningful constraint on presidential power and actually risks exacerbating the politicization of constitutional law. A decisional limit presents these problems because the concept of a decision in the governmental setting lacks precision, failing to provide a coherent line between permissible oversight and impermissible decisionmaking. A decisional limit also cannot in practice be enforced against either presidents or agencies. Presidents have available to them four easy strategies, each documented in this article, that allow them ready escape from legal criticism that they have overridden agencies' autonomy in violation of any purported decisional limit. Instead of continuing to invoke an unworkable standard that only invites unhelpful politicization of constitutional law, legal scholars would do well to invoke the virtues of a bright-line rule in this particular setting and favor a rule that requires agency officials to sign off, literally, on agency actions before they can take effect. Such a formal "signature limit" will serve to constrain presidential power but will do so by avoiding the unnecessary risks that a decisional limit poses to law's legitimacy.
Keywords: Administrative agencies, constitutional law, executive branch, presidential authority, delegation, Take Care clause, regulatory decisions, oversight, decisionmaking, unitary executive, limits on power, rule of law, separation of powers
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