The President's Fourth Branch?

51 Pages Posted: 27 Mar 2023 Last revised: 27 Nov 2023

See all articles by Bijal Shah

Bijal Shah

Boston College Law School

Date Written: March 17, 2023

Abstract

Unitary executive theory has taken hold of the administrative state, motivated by the view that agencies constitute a rogue fourth branch of government. Emboldened by the U.S. Supreme Court, the President has begun to interfere with administrative accountability to important criteria including statutory procedural requirements that impact both public participation and administrative due process, the expectation that agencies engage neutral expertise to implement the law, and the obligations of judicial review. As a result, this Essay argues, rather than constituting a fourth branch that is unaccountable to the President, the administrative state has been encouraged by the President and courts to become unaccountable to Congress. It is possible, however, that congressional and judicial oversight and intervention could encourage administration that is more consistent both with legislative mandates and with norms that legitimate the administrative state.

This Essay, written for a Fordham Law Review symposium, proceeds in two Parts. Part I describes how Presidents have interfered both with the administration of law and with agency accountability to essential civil service values. First, this part suggests that administrative circumvention of statutory procedural requirements—as a result of presidentialism—has undermined the Take Care Clause, hindered administrative adherence to the text of statutory requirements, and interfered with agencies’ obligation to engage in policymaking in a manner that weighs the policy’s impact on and responsiveness to the public. To substantiate this assertion, Part I draws on the examples of presidentialism undercutting the notice-and-comment mandates of the Administrative Procedure Act (APA), the environmental impact statement requirement of the National Environmental Policy Act of 196922 (NEPA), and other APA provisions for judicial review of agencies.

Second, Part I notes that the increasing number of agency officials subject to presidential appointment and removal power interferes with the legislature’s authority to structurally insulate agency adjudicators and officials per the Necessary and Proper Clause. Politicized appointments and removal have also reduced administrative accountability to the values and expectation, held by Congress and the public, that agencies promote impartiality and expertise in administrative decision- and policymaking. To support this position, this part highlights the judiciary’s efforts to enlarge the category of agency officials subject to constitutional appointments requirements and at will removal, as well as the resulting negative influence of this development on fair adjudication and competent policymaking.

Part II argues that targeted congressional, judicial, and even administrative intervention could encourage the President to align the administrative execution of law with procedural requirements and expertise-focused norms. The Supreme Court has signaled acceptance of deteriorated policy and rulemaking procedures and begun to dismantle agency structures that foster administrative independence. Nonetheless, even conservative justices (such as Justices Thomas and Roberts) have indicated that there are some limits to the Court’s willingness to expand presidential power. Accordingly, this part advocates for the reinvigoration of the APA’s notice-and-comment provisions and reiterates that agencies are distinctly accountable, as compared to the President, to statutory mandates such as NEPA and to judicial review under the APA. Part II also beseeches scholars and the Court to take seriously the repercussions of politicized appointments and removal decisions. More specifically, this part argues for detailing standards that limit the scope of political power to hire and fire experts and adjudicators and reinforcing the provisions of the APA that preserve deliberative and nonpartisan decision-making.

Suggested Citation

Shah, Bijal, The President's Fourth Branch? (March 17, 2023). Fordham Law Review, Forthcoming, Boston College Law School Legal Studies Research Paper No. 608, Available at SSRN: https://ssrn.com/abstract=4392122

Bijal Shah (Contact Author)

Boston College Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

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