61 Pages Posted: 3 May 2006
When does a statute grant powers to the President as opposed to other officials? Prominent theories of presidential power argue or assume that any statute granting authority to an executive officer also implicitly confers that authority upon the President. This Article challenges that statutory construction. It argues that the President has statutory authority to direct the administration of the laws only under statutes which grant to the President in name. Congress's enduring practice of granting power to executive officers subject to express conditions of presidential control supports a strong negative inference that the President has no directive authority when a statute grants authority to an executive officer without any mention of presidential control. Such a construction also has significant institutional advantages: Not only is Congress generally ill equipped to police the validity of the President's assertions of statutory authority, but the President has strong incentives to claim that his actions are authorized by existing statutes. Limiting the occasions for the President to claim statutory power to those statutes in which Congress has expressly granted him authority helps to restrict the President's adventurous assertions of statutory power and provides a check on the President internal to the executive branch, while still recognizing Congress's important interests in placing certain matters in the President's own hands.
This statutory conclusion further implies - contrary to the suggestion of Dean Elena Kagan - that presidential direction of administrative agency action may not qualify for judicial deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. unless the statute expressly grants authority to the President. In the terms of Chevron, the President "administers" only those statutes. It also provides an account of the legal status of executive orders and other presidential directives that lack independent constitutional authorization: Those directives may legally bind the discretion of executive officials and the public only if the President acts under a statute granting power to the President in name.
Keywords: presidential power, directive authority, judicial review of presidential action, Chevron deference, unitary executive
Suggested Citation: Suggested Citation
Stack, Kevin M., The President's Statutory Powers to Administer the Laws. Columbia Law Review, Vol. 106, No. 2, pp. 263-323, March 2006; Cardozo Legal Studies Research Paper No. 152. Available at SSRN: https://ssrn.com/abstract=898228