Making Sense of Absence: Interpreting the APA’s Failure to Provide for Court Review of Presidential Administration

Federal governance is increasingly characterized by presidential direction of administration. Yet the main statute that governs court review of administrative action, the Administrative Procedure Act, has strikingly little to say about the President. This Essay seeks to make sense of this absence. It uses a brief survey of historical materials from the new Bremer-Kovacs Collection to sound the depths of the Administrative Procedure Act’s silence on the President. It then seeks to explain this omission by reference to contemporaneous discussions of the place of the president in the administrative state. The Essay hypothesizes that, at the time, the presidency was not a driver of administrative action in the way it is now, and that, when it was involved in the minutiae of administration, it was often in service of the same goals as the Administrative Procedure Act. This history highlights some of the limitations of the Administrative Procedure Act for contemporary administrative law. It suggests the value of more research into the history of administration and raises questions about the possibility of returning to the world of governance the Administrative Procedure Act presumed. Despite the Act’s long history and success—marked by this recent celebration of its seventy-fifth anniversary—to keep court review of agency action at the center of administrative law might require new legal forms better adapted to an age of plebiscitary presidentialism

The Making of Presidential Administration

Today, the idea that the President possesses at least some constitutional authority to direct administrative action is accepted by the courts, Congress, and the legal academy. But it was not always so. For most of American history — indeed until relatively recently — Presidents derived their authority over the administrative state largely from statute. Any role for the White House in agency rulemaking or adjudication had to be legally specified. Scholars mostly agree about when this change occurred. But the dominant shared narrative — exemplified by then-Professor Elena Kagan’s seminal article Presidential Administration — is Whig history. It offers a depoliticized interpretation that presents White House primacy as the product of steady progress toward greater administrative rationality. This Article offers a historical corrective. It explains how “administration under law” was lost and replaced with a new constitutional baseline, “presidential administration.” It is both an account of constitutional change — how one understanding of constitutional text and structure gave way to a different one — as well as a history of the regulatory state and how, beginning in the 1980s, federal officials reworked the relationship between the President, Congress, and administrative agencies in order to expand the role of market actors in governing economic activity. The Article draws attention to the intense political conflict that accompanied the advent of presidential administration. What is today bipartisan was originally nothing of the sort. It also reveals how a new interpretation of Article II took hold without any fundamental doctrinal or statutory change or shift in formal law. It highlights the emergence of a neoliberal consensus around aspects of economic regulation that incentivized and buttressed presidential administration as an approach to administrative governance. And it reveals the relative novelty of originalist arguments about the “Unitary Executive.

Presidential Administration: An Intellectual and Legal History, 1888-1938

This dissertation explores the intellectual and legal history of presidential administration — that is, the president’s ability to direct the operations of the administrative state. The dissertation argues that presidential administration was closely connected to changing ideas about how to realize democratic government. It shows how, in the late 19th and early 20th century, the presidency acquired the institutions that lay the foundations for executive control of administration. This was a deliberate reform project, driven by ideas about what would make government responsible. The dissertation tells this story by tracking transformations in democratic thought and law through attention to court cases and scholarship, among other genres, and looks at both published and archival sources. It draws on methods from legal history, intellectual history, and American Political Development, and occasionally makes use of an Atlantic perspective. Besides historians, law professors, and political scientists, it may be of interest to scholars of the presidency, public administration, and analysts of current legal debates about presidential power and administration

Building Presidential Administration

https://scholarship.law.bu.edu/clark_speakers/1097/thumbnail.jp

Building Presidential Administration

https://scholarship.law.bu.edu/clark_speakers/1097/thumbnail.jp

Making Sense of Absence: Interpreting the APA’s Failure to Provide for Court Review of Presidential Administration

Federal governance is increasingly characterized by presidential direction of administration. Yet the main statute that governs court review of administrative action, the Administrative Procedure Act, has strikingly little to say about the President. This Essay seeks to make sense of this absence. It uses a brief survey of historical materials from the new Bremer-Kovacs Collection to sound the depths of the Administrative Procedure Act’s silence on the President. It then seeks to explain this omission by reference to contemporaneous discussions of the place of the president in the administrative state. The Essay hypothesizes that, at the time, the presidency was not a driver of administrative action in the way it is now, and that, when it was involved in the minutiae of administration, it was often in service of the same goals as the Administrative Procedure Act. This history highlights some of the limitations of the Administrative Procedure Act for contemporary administrative law. It suggests the value of more research into the history of administration and raises questions about the possibility of returning to the world of governance the Administrative Procedure Act presumed. Despite the Act’s long history and success—marked by this recent celebration of its seventy-fifth anniversary—to keep court review of agency action at the center of administrative law might require new legal forms better adapted to an age of plebiscitary presidentialism

The Making of Presidential Administration

Today, the idea that the President possesses at least some constitutional authority to direct administrative action is accepted by the courts, Congress, and the legal academy. But it was not always so. For most of American history — indeed until relatively recently — Presidents derived their authority over the administrative state largely from statute. Any role for the White House in agency rulemaking or adjudication had to be legally specified. Scholars mostly agree about when this change occurred. But the dominant shared narrative — exemplified by then-Professor Elena Kagan’s seminal article Presidential Administration — is Whig history. It offers a depoliticized interpretation that presents White House primacy as the product of steady progress toward greater administrative rationality. This Article offers a historical corrective. It explains how “administration under law” was lost and replaced with a new constitutional baseline, “presidential administration.” It is both an account of constitutional change — how one understanding of constitutional text and structure gave way to a different one — as well as a history of the regulatory state and how, beginning in the 1980s, federal officials reworked the relationship between the President, Congress, and administrative agencies in order to expand the role of market actors in governing economic activity. The Article draws attention to the intense political conflict that accompanied the advent of presidential administration. What is today bipartisan was originally nothing of the sort. It also reveals how a new interpretation of Article II took hold without any fundamental doctrinal or statutory change or shift in formal law. It highlights the emergence of a neoliberal consensus around aspects of economic regulation that incentivized and buttressed presidential administration as an approach to administrative governance. And it reveals the relative novelty of originalist arguments about the “Unitary Executive.