THE COMMON LAW POWERS OF THE PRESIDENCY

Abstract

The Supreme Court this past term curbed administrative agencies’ ability to conduct enforcement actions before administrative tribunals, increased the ability of regulated entities to challenge regulations in court, and limited the deference that agencies previously received for their interpretations of ambiguous language in statutes they administer.  Those rulings may well persuade agencies under both Democratic and Republican administrations that social change at times can best be attained not through traditional regulation but rather by encouraging the President to attach conditions to federal contracts and funds that protect covered employees’ benefits, their welfare, and right to a healthy environment – after all, over twenty percent of the nation’s workforce is employed by federal contractors.  In the last generation, presidents used statutory procurement authority to direct federal contractors to ensure that their workforces be integrated, that they follow affirmative action policies, that their workers be paid a particular minimum wage, and even that their workers be shielded from DEI instruction.  But lower courts recently have pushed back at Presidents’ authority to enhance employee welfare through federal contracting, including President Biden’s mask or vaccinate mandate, creating a split in the circuits.  The skeptical courts have reasoned that Congress did not delegate to the President the power through procurement to enhance employee welfare not closely tied to the efficient performance of federal contracts.

In so doing, such courts have ignored that Presidents since the Founding have deployed common law-type authorities to exercise both contractual and proprietary authority in managing the country’s funds and property.  Such authority – albeit subject to congressional abridgement -- plainly extends beyond ensuring the efficient performance of federal contracts.  Just as private corporations and landowners have pursued nonprofit maximization through Environmental, Social, and Governance (ESG) initiatives, so the executive branch in managing the nation’s funds has sought social objectives as well.  Indeed, in comparison to private proprietors, the executive branch pursuant to delegations from Congress has a much more variegated mission than do private corporations, not just to conduct efficient procurement but also to administer environmental protection laws, health laws, and so much more.  Accordingly, this Article is the first to investigate the history of such common law presidential powers, address their limits, and  assess their contemporary significance.