The President's Fourth Branch?

Abstract

This Essay, written for a Fordham Law Review symposium on unitary executive theory, argues that presidential interference in administrative compliance with procedural requirements, control over the appointment of administrative adjudicators, power over the removal of independent agency heads, and shielding of agencies from judicial review has compromised administrative fidelity to the provisions of the Constitution that empower Congress and accountability to legislative requirements and the legislature’s expectations. Arguably, the Supreme Court has begun to warp presidential power by reducing administrative adherence to the procedural requirements and expertise values of positive law. Rather than a fourth branch that is unaccountable to the President, administrative agencies are becoming unaccountable to Congress—both as a result of the Court’s refashioning of the administrative state as well as of the result of presidential cover from judicial review.

This Essay proceeds in two Parts. First, Part I describes how presidents have interfered with administrative accountability to the legislature. First, this Part suggests that administrative circumvention, as a result of presidentialism, of statutory procedural requirements has interfered with the Take Care Clause, as well as with administrative accountability to the text of legislative requirements and to the legislative mandate that agencies engage in policymaking in a manner that weighs the policy’s impact on and responsiveness to the public. To substantiate this assertion, it draws on the examples of agencies undercutting the environmental impact statements requirement of the National Environmental Policy Act (NEPA), the notice-and-comment mandates under the Administrative Procedure Act (APA), and APA and other provisions for judicial review.

Second, Part I notes that the increasing number of agency officials subject to presidential appointment and removal power interferes with constitutional expectations of due process and that the legislative power to structurally insulate agency adjudicators and officials that is inherent to 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 policy-making. 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, and the resulting negative influence of this development on impartial adjudication and competent policymaking. Third, Part I observes how accountability to legislative mandates has been further compromised by the ways in which presidentialism provides agencies cover from judicial review that might better ensure they adhere to the requirements of law.

Part II advocates for intervention to reinvigorate the requirements of NEPA and APA notice and comment provisions. It also beseeches scholars and the Court to take seriously the repercussions of politicized appointments and removal decisions, by, at least, detailing standards that limit political decisions to hire and fire experts and adjudicators, and reinforcing the provisions of the APA that preserve deliberative and nonpartisan decisionmaking. Despite the fact that the Supreme Court has signaled acceptance of deteriorated policy- and rulemaking procedures, and furthered the dismantling of agency structures that foster minimal administrative independence, it is possible that targeted congressional, judicial, and even administrative oversight and intervention could encourage the President to align the administrative execution of law with procedural requirements and expertise-focused norms.