Ninety years ago, a unanimous Supreme Court thought it obvious that Congress has constitutional authority to restrict presidential removal authority over FTC Commissioners because, without such limits, the President would have unconstitutional power to direct the FTC’s quasi-legislative and quasi-adjudicative functions. Humphrey’s Ex’r v. United States, 295 U.S. 602, 628 (1935). These days, thanks in large part to a series of executive orders issued over the last fifty years, it is broadly accepted that presidents have power to direct agency rulemaking discretion, at least if we exclude independent agencies (which, on a closely related note, are hanging on to their independence by the thinnest of constitutional threads). We live in an “age of presidential administration.” (P. 2221).
In The Making of Presidential Administration, Professors Ahmed, Menand, and Rosenblum (collectively, “AM&R”) provide a fascinating, critical retelling of this transformation that focuses on the roles of politics and ideology in driving institutional and legal development. Plus, they accuse Justice Kagan of committing Whig history. Whigs, as note 685 explains, like to “present historical arcs as ‘progressive,’ moving from primitive pasts to enlightened presents.” (P. 2212 n. 685).
AM&R maintain that bloodless accounts of the development of presidential administration have helped lend it a false sense of inevitability, a bit like death and taxes. Debate does not center on whether there should be presidential administration; rather, it centers on the degree to which Article II of the Constitution demands an especially potent form of it. (P. 2198). AM&R seek to undo this intuition that “our current institutional arrangements” amount to a “fait accompli.” (P. 2139). To this end, they seek to refocus attention on the “political, intellectual, and legal battles” that gave rise to presidential administration. (P. 2136).
AM&R contend that, for most of the Republic’s history, “[p]residents derived their authority over the administrative state largely from statute.” (P. 2131). Under this regime of “administration under law,” absent statutory authorization, the President lacked authority to direct administrative action. Part I of The Making develops this claim by offering an account of the “Managerial Presidency” that starts with the Progressive Era and then focuses on developments during the Nixon, Ford, and Carter administrations in the 1970s. These administrations, while generally continuing to hew to a model of “administration under law,” began to explore means for exercising greater influence, if not direct control, over agency rulemaking through devices such as the Nixon administration’s scheme for “Quality of Life” review of select rules. (P. 2149).
The Making next turns to President Reagan’s “hot wiring” of the administrative state via Executive Order 12,291, which gave the Office of Management and Budget (OMB) “something close” to veto power over major agency rules. (P. 2156). This seizure of power prompted “shock” and “major resistance” in Congress and the legal academy that, according to AM&R, has been largely forgotten. (Pp. 2153, 2159-2171). It also rested on a remarkably thin legal basis, “a stretched reading of a single clause of Article II, namely the Take Care Clause.” (Pp. 2157-2158).
This “stretched reading” of the Take Care Clause proved to be one of the foundations for the Unitary Executive theory that now dominates the courts’ understanding of presidential constitutional authority over administration. Part III of The Making provides a blow-by-blow account of early judicial and scholarly development of this doctrine that “claimed for the President expansive, exclusive authority over huge swaths of government action.” (P. 2173). AM&R focus on how the Burger Court’s decisions in INS v. Chadha, 462 U.S. 919 (1983), and Bowsher v. Synar, 478 U.S. 714 (1986), laid the groundwork for future developments by limiting congressional power to control administration. With their acute eyes for fascinating historical detail, the authors note that these cases made for “strange bedfellows,” with the Reagan administration and Alan Morrison of Public Citizen teaming up together against Congress, albeit with different political and institutional goals in mind. (Pp. 2180, 2183). AM&R then provide a brief intellectual history of the development of the Unitary Executive theory during the 1980s and 1990s, canvassing contributions from Justice Scalia, Peter Strauss, Geoffrey Miller, Steven Calabresi, Kevin Rhodes, Lee Liberman, Saikrishna Prakash, Lawrence Lessig, and Cass Sunstein. (Pp. 2186-2198).
For a contested practice to mature into a settled norm or expectation, the major interested parties need to stop fighting about it. Part IV of The Making recounts development of this consensus for presidential administration, explaining how the Clinton administration entrenched rather than abandoned White House control of agency rulemaking by adopting E.O. 12,866, which made substantial revisions to E.O. 12,291 but kept its basic substance and structure. AM&R attribute this decision to the Clinton administration’s ideological commitment to neoliberalism, market solutions, efficiency, and deregulation. Keeping centralized control over rulemaking gave the administration a means to ensure that New Deal agencies toed a neoliberal line.
After steering us from the Progressive Era through the Clinton administration, The Making culminates with its critique of Justice Kagan’s magisterial, Presidential Administration, 137 Harv. L. Rev. 2131 (2001). According to AM&R,
Kagan adopted and reworked the dominant account to make presidential administration appear, if not inevitable, at least logical and providential—the obvious solution to the problems generated by the whole history of American administration. In that sequence, Clintonian presidentialism has a special place: as the riddle of history solved, resolving the problems that President Reagan’s near-solution had generated.
(P. 2212). For Clinton’s former Solicitor General Kagan, “Clintonian presidential administration ‘represents the best accommodation of democratic and efficiency values,’ and ‘may well generate the optimal form of political oversight over administrative action, measured in terms of both accountability and effectiveness.’” (P. 2215 (quoting Presidential Administration at 2341 & 2348)).
AM&R criticize Justice Kagan’s account for offering a Whig history, i.e., telling a story of things getting better. History does, every now and then, work out this way, so a Whig history is not necessarily a wrong history. For AM&R, however, Justice Kagan’s Whig history of presidential administration suffers from two big problems. One is that it “obscures the risks posed by constitutionalized presidentialism.” (P. 2136). Modern governance demands a vast and powerful administrative apparatus. Is it really such a great idea to put one person in charge of all its power? Might the possibility of “plebiscitary dictatorship” spring to mind? (P. 2143). Presidential control of agency discretion may look a little different in 2024 than it did in 2001 when Presidential Administration was published.
The other problem is that Kagan’s “irenic” account “submerges the substantive political agenda that drove the rise of presidential administration as well as the legal revolution that rise produced,” and it leaves out the “institutional politics, legal innovations, and ideological conditions that made the shift to presidential administration possible.” (P. 2136). This leads us back to AM&R’s claim at the outset of The Making that sanitized stories regarding the development of presidential administration “deprive [ ] us of tools to assess its internal dangers, as well as the concepts to push back against its excesses.” (P. 2136). Most of The Making, as we have seen, is devoted to redressing this problem by offering its unsanitized history of presidential administration redder in tooth and claw.
Across its span of 90 pages, The Making contains so many thought-provoking claims and arguments that I imagine every reader somewhat familiar with the development of presidential administration and the Unitary Executive theory will find some bone of contention or doubt. (Ideological opponents will find lots, of course). For example, I find myself wondering if we need to attribute the Clinton administration’s decision to build upon rather than abandon Reagan-era presidentialism to neoliberal reflexes. Might it simply be the case that presidents, regardless of ideology, don’t like giving up power over government institutions?
But one need not accept all (or maybe even many) of the characterizations and critiques that AM&R level at presidential administration to find their account of its development extremely illuminating and interesting. It is also a fluid, excellent read, which is not the easiest thing to pull off when giving detailed accounts of topics like the evolution of executive orders governing agency rulemaking. Maybe, like me, you sometimes read a long law review article with 774 footnotes, and, absent special effort, only a modest bit sticks in your brain. I feel like a much larger bit of The Making is sticking with me thanks to its authors’ combination of clarity, coherence, and eye for telling details.
In short, I learned a lot from The Making and thoroughly enjoyed reading it. If you have made it all the way to the end of this jot, I bet you will, too.
