76 Pages Posted: 23 Dec 2020 Last revised: 12 Feb 2021
Date Written: February 12, 2021
We know a great deal about how agencies exercise power. They use notice-and-comment procedures to create rules and trial-like adjudication when applying law to individuals. This is the field of administrative law. But what of the President? Like agencies, the President issues law-like rules, adjudicates whether individuals have violated applicable law, and does much more. Yet, unlike when agencies exercise power, the President is not subject to the Administrative Procedure Act’s requirements. So, what law governs? The perhaps surprising answer is that we simply do not know. This Article argues that, although administrative law does not govern the President’s exercise of power, a body of “presidential law” does.
The Article first identifies the vast realm of power delegated directly to the President rather than agency heads. Such direct delegation is remarkably frequent and consequential but has yet to be the study of sustained scholarship. The Article then argues that the President has an existing procedural obligation to deliberate—that is to gather information and make a considered decision before exercising power. This duty is grounded not only in the text of the Constitution, but also in a wide array of Supreme Court case law on presidential power, as well as historic internal executive branch practice.
After identifying the President’s existing procedural obligations, the Article explains how they might be enforced. First, understanding the President’s first-order obligations can help us identify the proper form of judicial review to enforce them—i.e., courts can require the President to establish that she deliberated before exercising power. Second, the President could help enforce the duty herself by formally requiring such deliberation before exercising significant power and clarifying that orders not subject to due deliberation are not binding. Indeed, identifying the duty to deliberate might shed light on numerous instances of subordinates’ failure to comply with President Trump’s off-the-cuff directives. Third, Congress could enforce the duty by passing legislation explicitly requiring such deliberation. The Article ends by questioning the normative sufficiency of the President’s positive obligations to deliberate by reference to ongoing debates in administrative law scholarship about the legitimacy of agency exercises of power.
Keywords: Presidential Power, Constitutional Law, Administrative Law, National Security Law, Executive Branch, Procedure
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