77 Pages Posted: 26 Mar 2019 Last revised: 3 Jun 2019
Date Written: March 1, 2019
The current account of executive power is incomplete. In a famous article, now-Justice Elena Kagan wrote that the President seeks control over the executive branch. Kagan referred to this paradigm as “presidential administration.” As groundbreaking as it was, Kagan’s work and the significant body of literature it spawned has a flaw: it assumes that the President is the only executive entity that exercises influence over the administrative state.
This Article reveals that executive agencies also seek and wield control for reasons that are distinct from the President’s interests, which results in what this Article calls “executive administration.” More specifically, executive agencies exert influence via litigation brought on their behalf by the Department of Justice against independent agencies before Article III courts. This contention is supported by an original data set of approximately 175 cases spanning the mid-twentieth century through the present day.
Litigation has consistently furthered the interests of executive agencies, including their desire to limit independent agencies’ power to regulate them and in overlapping areas of policymaking authority. For instance, courts have reversed independent agency decisions binding executive agencies, and constrained independent agencies’ authority to implement their enabling statutes. This may be for the better, but also for the worse. On the one hand, litigation offers a meaningful vehicle for beneficial, ex post executive oversight of independent agencies, particularly in light of the dearth of presidential mechanisms of quality control. On the other hand, a recent Supreme Court decision suggests litigation may be used to walk back Chevron deference to independent agencies, to the detriment of their ability to enforce the law with nonpartisanship and expertise.
Finally, recent cases brought by the Trump administration have sought to dislocate independent agencies in pursuit of a more unitary executive branch. These cases suggest that litigation could be a tool of presidential administration as well. Theoretically, this litigation exemplifies a constitutional prophylactic; in order to intensify control over the administrative state, the executive branch must cede power to the judiciary. However, courts will continue to serve as barriers to presidential abuse only as long as they remain nonpartisan.
Keywords: President, Presidential Administration, Executive Agency, Independent Agency, Executive Branch, Administrative Law, Political Insulation, Arbitrary and Capricious, Chevron, Separation of Powers
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