Constitutional administration.

• Author: Wurman, Ilan
• Position: II. A Tripartite Theory of Administrative Law A. The Legislative Veto and a Rulemaking Enabling Act 6. Proposed Text of a Rulemaking Enabling Act through Conclusion: Formalism, Functionalism, and "Balance", with appendix and footnotes, p. 398-434

6. Proposed text of a Rulemaking Enabling Act

A Rulemaking Enabling Act that requires all rulemakings legislative in character to be considered by Congress--which could then take action or approve by inaction--would be constitutionally permissible were the Court to accept the reality of delegation. The following is a proposed draft of a Rulemaking Enabling Act, which can serve as the basis of legislative discussions:

Any agency of the United States, as defined by Chapter 5 of the Administrative Procedure Act, shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under section 553 of that chapter is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. All independent commissions, which engage in the making of prospective rules generally applicable in nature, shall, notwithstanding anything to the contrary in governing statutes existing at the time of this statute's enactment, transmit to the Congress not later than May 1 of the year in which such a rule is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. If the Congress enacts such rule, or an amended version of it, the rule, or the amended version, shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives. If any rule shall not be returned by the President within ten days after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it. If Congress takes no action in the allotted time, such inaction shall be construed as assent to the rule, but such rule must still be presented to the President and, before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives. If any such rule shall not be returned by the President within ten days after it shall have been presented to him, the same shall be a law. If either house of Congress takes action on the rule but no final bill is enacted by the allotted time, Congress shall be construed to have taken no action and the rule shall become law. But if the full Congress enacts a resolution of disapproval, the rule shall not become law. (173) This law is not only simple; it is politically practicable. It would leave much of the administrative state undisturbed, but both Congress and the President would have an incentive to enact it: each would get a new power over the administrative state.

2. Presidential Administration and a Modified Unitary Executive

   Formalists find themselves in a quandary when it comes to executive power. Many believe that a unitary executive is constitutionally required. According to this view, the President should have full control over not only the rulemakings and other activities of executive branch agencies but also the activities of independent commissions over which he currently has far less control. (174) On the other hand, those who hold this view lament the tremendous growth of the President's power that attended the rise of the administrative state. (175) The combination of an unconstitutional state of affairs--a toothless nondelegation doctrine--with a constitutional unitary executive should be frightening to formalists. If Congress is to delegate great authority, is it not better to divide up that power rather than have it accumulate in one unitary executive?

   Functionalists also find themselves somewhat ambivalent about the modern chief executive. On the one hand, as Elena Kagan has demonstrated, they find tremendous value in the political accountability afforded by a regime of presidential administration, a regime that is also more effective at achieving their desired policy outcomes. (176) But on the other, they wistfully recall the dream of apolitical bureaucrats applying technical expertise to social problems. (177)

   Constitutional administration creates a compromise between these competing positions and should satisfy both functionalists and formalists. The idea is simple: the President ought to have unitary authority over all of the administrative state--independent commissions as well as executive branch agencies--but over its executive functions only. Formalists can then rest assured that their constitutional unitary executive will not have combined legislative, judicial, and executive powers. Functionalists, too, should appreciate political accountability across executive actions but recognize the remaining role for technocratic expertise--and responsiveness to Congress-when it comes to rulemaking or other legislative functions.

   To be sure, it would be nigh impossible to prevent the President from exercising some legislative control over the rulemaking activities of executive branch agencies, in the same way that the President can also draft and propose legislation for introduction in Congress. Congress would, however, have a mechanism by which it could delegate legislative authority to independent commissions that would be largely independent of the President but whose executive activities would nevertheless be under his control.

   But what functions are "executive"? Scholars debate whether the executive must be unitary or whether there is a class of "administrative" functions that the Constitution leaves Congress authority to structure as it sees fit. (178) This Article does not seek to resolve this debate; it is unnecessary to do so here. What it does seek to show is that prosecution--or the enforcement of rules against private citizens--is an executive function over which the President must have ultimate control. Thus, whatever "administrative" power is, it does not include prosecution, and so the President must have control over the enforcement authority of independent commissions.

   Whatever nonexecutive "administrative" power might otherwise include, it does not include purely judicial or legislative power. (179) That means the President should have no special power over the administrative state's legislative or judicial functions. Independent commissions, then, should be free to engage in rulemaking without fear of presidential control (or removal), but their enforcement activities must be subject to such control. (180) Whatever other functions such commissions might exercise, the argument presented here leaves it to others to decide whether those functions are more "administrative" or "executive." Over those functions, Congress and the President can seek their own compromises.

   This Subpart will proceed as follows: It first elaborates upon the debate over the unitary executive and then briefly discusses Elena Kagan's model of presidential administration. It then explains where constitutional administration fits. In so doing, it argues that the President must have control and authority over the enforcement activity of all agencies, including independent commissions, and explores some doctrinal consequences for Humphrey's Executor v. United States. (181) Finally, it proposes a short statutory provision, based on the statute creating U.S. Attorneys, to effectuate this reform.

   1. Unitary administration

   The "conventional" view in administrative law is that "the President lacks directive authority over administrative officials," that is, he "lacks the power to direct an agency official to take designated actions within the sphere of that official's delegated discretion." (182) Gary Lawson admits that "early American history and practice reflect ... to a considerable extent" the view of "most contemporary scholars ... that Congress may vest discretionary authority in subordinate officers free from direct presidential control." (183) Lessig and Sunstein point to the early Postmaster General, the structure of the early Treasury Department, and the battle over the Bank of the United States to show that Congress seems to have had the authority to structure the executive branch such that some officials were not directly controllable by the President. (184) And Attorneys General in the nineteenth century divided over the question of direct presidential control of administrative officials, (185) though they all appear to have accepted the legality of removal. (186)

   Lessig and Sunstein nicely sum up the conventional view, arguing that it is supported by the historical record: "It was clear that 'executive' functions must be performed by officers subject to the unlimited removal and broad supervisory power of the President. But it was equally clear that Congress had the constitutional power to remove from the President's authority officers having quasi-legislative' and 'quasi-judicial' functions." (187) That, indeed, is the line drawn in Humphrey's Executor v. United States, (188) which held that President Roosevelt could not remove a commissioner of the FTC except for the causes permitted by the governing statute. (189) The Court explained: "The commission is to be non-partisan; and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative." (190) This conventional view, adopted by the Court and scholars alike, appears to rest on the notion that there is something about "law-administration" or "administrative power" that is distinct from "law-execution" or "executive power." (191)

   Unitary executive theorists dispute this theory and history. They claim that there was no conception of "administration" different from "execution" in the eighteenth century; rather, the Founding...