44 Pages Posted: 7 Dec 2006
All will agree that the Constitution creates a unitary chief executive officer, the President, at the head of the government Congress defines to do the work its statutes detail. Disagreement arises over what his function entails. Once Congress has defined some element of government and specified its responsibilities, we know that the constitutional roles of both Congress and the courts are those of oversight of the agency and its assigned work, not the actual performance of that work. But is it the same for the President? When Congress confers authority on the Environmental Protection Agency to regulate various forms of pollution, on the Occupational Safety and Health Administration to regulate workplace safety, on the Food & Drug Administration to regulate the safety of food, drugs and medical devices, etc., etc., is it in legal contemplation giving the President the authority to decide these matters, or only to oversee them? One might think this a fairly elementary question, yet it is one that has divided Attorneys General from the beginning of the Republic and that divides scholars still. Does it deny the unitary characteristic of the American presidency to suggest that in relation to the general concerns of administrative law, and absent actual congressional delegation of decisional authority to the President, his role is limited to executive oversight of the agency on whom that authority is statutorily conferred?
Our Constitution explicitly gives us a unitary head of state, but it leaves the framework of government almost completely to congressional design. If its text makes any choice between President as overseer of the resulting assemblage, and President as necessarily entitled "decider," the implicit message is that of oversight, not decision. Congress's arrangements of government are a part of the law that the President is to assure will "be faithfully executed," and the text anticipates that those arrangements will place "duties" elsewhere in the executive branch it defines. The size and ambition of contemporary government, in a country dedicated to the rule of law and resolute to defend itself against unchecked individual power, point the same direction. Congress can, to be sure, give the President decisional authority, and it has sometimes done so. In limited contexts - foreign relations, military affairs, coordination of arguably conflicting mandates - the argument for inherent presidential decisional authority is stronger. But in the ordinary world of domestic administration responsibilities that Congress has delegated to a particular governmental actor it has created, that delegation is a part of the law whose faithful execution the President is to assure. Oversight, and not decision.
Keywords: President, Administrative Law, Oversight, Article II
Suggested Citation: Suggested Citation
Strauss, Peter L., Overseer, or 'the Decider'? The President in Administrative Law. George Washington Law Review, Forthcoming; Columbia Public Law Research Paper No. 06-130. Available at SSRN: https://ssrn.com/abstract=949649