Administrative States: Beyond Presidential Administration

61 Pages Posted: 30 Jul 2019 Last revised: 30 Dec 2019

Date Written: July 1, 2019

Abstract

Presidential administration is more entrenched and expansive than ever. Most significant policymaking comes from agency action rather than legislation. Courts endorse “the presence of Presidential power” in agency decisionmaking. Scholars give up on external checks and balances and take presidential direction as a starting point. Yet presidential administration is also quite fragile. Even as the Court embraces presidential control, it has been limiting the administrative domain over which the President presides. And when Presidents drive agency action in a polarized age, their policies are not only immediately contested but also readily reversed by their successors.

States complicate each piece of this story. In critical respects, federalism further strengthens presidential administration. Waivers, grants, nonpreemption of state law, and other intergovernmental techniques enable Presidents to effectuate policy agendas when federal agencies lack sufficient authority. States also furnish durability because their policies may outlast a President’s tenure when federal policies do not. At the same time, federalism diversifies administration and broadens its representative base. Defenses of presidential power as “accountable” and “effective” sound increasingly empty, if not dangerously autocratic. Yet it is easier to condemn presidential administration than to locate alternatives that connect the administrative state to electoral politics and representative institutions as well as to expertise and deliberation. Because state legislators and governors may furnish these connections, plural administrative states offer the most promising path forward for the contemporary administrative state.

Keywords: presidential administration, agencies, federalism, administrative state, Brownlow Committee, National Resources Committee, Clean Power Plan, DACA, net neutrality, centralization, politicization, Gundy, Kisor, waivers, preemption, Obama, Trump, states

Suggested Citation

Bulman-Pozen, Jessica, Administrative States: Beyond Presidential Administration (July 1, 2019). Texas Law Review, Vol. 98, 2019; Columbia Public Law Research Paper No. 14-631. Available at SSRN: https://ssrn.com/abstract=3427260

Jessica Bulman-Pozen (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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