Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law

64 Pages Posted: 8 Aug 2023 Last revised: 13 Oct 2023

See all articles by Jed H. Shugerman

Jed H. Shugerman

Boston University - School of Law

Jodi L. Short

UC Law, San Francisco

Date Written: August 4, 2023

Abstract

A contradiction about the role of the president has emerged between the Roberts Court’s Article II jurisprudence and its Major Questions Doctrine jurisprudence. In its appointment and removal decisions, the Roberts Court claims that the president is the “most democratic and politically accountable official in Government” because the president is “directly accountable to the people through regular elections,” an audacious new interpretation of Article II; and it argues that tight presidential control of agency officials lends democratic legitimacy to the administrative state. We identify these twin arguments about the “directly accountable president” and the “chain of dependence” as the foundation of “Roberts Court presidentialism.”

Meanwhile, each of the policies in dispute in the Major Questions cases over the past three decades are the product of the “directly accountable president” and the “chain of dependence” in action. This Article documents seven MQD cases, from 1990s tobacco regulation to the recent student debt waiver: presidents campaigning on the policy, directing agencies to adopt the policy, and then publicly taking credit and responsibility for the policy. Nevertheless, the Supreme Court has almost always ignored the presidents’ role in Major Questions policies and has instead blamed the agency for overstepping its delegated power. The erasure of presidents serves the Court’s narrative of blaming “unaccountable bureaucrats,” rather than either granting the policy more democratic legitimacy for its presidential backing or holding the president who ordered the policy accountable for overstepping the separation of powers. The erasure also suggests the Court has an underlying ambivalence or anxiety about the problems of presidential power, which Roberts Court presidentialism has exacerbated. Ironies abound: relying on a theory of presidential accountability, but then retreating from holding presidents accountable; unaccountable judges expanding judicial power based on a narrative of “unaccountable bureaucrats.”

The rule of law requires consistent reasoning. We suggest five doctrinal opportunities to resolve the contradictions between the Roberts Court’s Article II presidentialism and its Major Questions’ erasures of presidents: 1) SEC v. Jarkesy on the removal of administrative law judges; 2) future MQD cases crediting or blaming presidents; 3) the applicability of MQD to presidents; 4) the future of Chevron deference; and 5) in applying the non-delegation doctrine. The Roberts Court can untangle the “chain of dependence” with more consistency in either direction, but perhaps the most important lessons from these contradictions are for judicial restraint and of acknowledging the costs of direct presidential power, not just the benefits.

Suggested Citation

Shugerman, Jed H. and Short, Jodi L., Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law (August 4, 2023). Available at SSRN: https://ssrn.com/abstract=4531721 or http://dx.doi.org/10.2139/ssrn.4531721

Jed H. Shugerman (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Jodi L. Short

UC Law, San Francisco ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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