CONSTRAINING THE STATUTORY PRESIDENT.

• Author: Kovacs, Kathryn E.

ABSTRACT

When agencies make decisions that are binding on the public, they must provide public notice, accept and consider public comments, and provide explanations for their final decisions. Their actions are then subject to judicial review to ensure that they acted within the scope of their authority and the decision was not arbitrary or capricious.

The President, however, is not subject to such constraints, even when exercising purely statutory authority, i.e., acting as the "Statutory President." That autonomy is due to the Supreme Court's holding in Franklin v. Massachusetts that the President is not an "agency" under the Administrative Procedure Act (APA). Thanks to Franklin, the President exercises delegated authority to make policy decisions that have enormous implications for the public without the public involvement, transparency, deliberation, and political and judicial accountability that we demand when agencies make such decisions.

This Article is the first to take Franklin v. Massachusetts head on. It demonstrates that the Court's 1992 holding conflicts with the plain language and history of the APA; it explains the flaws in the Court's constitutional analysis; and it presents the normative case for treating the Statutory' President like any other agency.

Having shown that Franklin was wrong, this Article sketches a new model for treating the Statutory President like an "agency " under the APA. It concludes by explaining how both the process and outcome o/Trump v. Hawaii, in which the Supreme Court upheld the President's order barring immigration from certain Muslim-majority nations, would have been different had the President been subject to the APA.

INTRODUCTION I. FRANKLIN V. MASSACHUSETTS A. Pre-Franklin B. Briefing and Argument C. The Supreme Court's Decision D. Avoiding the Issue E. Dalton v. Specter F. Fallout II. FRANKLIN WAS WRONG A. The Text B. The History C. Constitutional Concerns 1. Constitutional Balance 2. APA Exceptions 3. Privileges D. Changed Circumstances III. FRANKLIN SHOULD BE OVERTURNED A. Procedure 1. Public Participation 2. Political accountability 3. Transparency 4. Deliberation 5. Uniformity 6. Objections B. Judicial Review 1. Under the APA 2. Of the Statutory President 3. Objections IV. THE NEW MODEL A. Trump v. Hawaii B. Next Time CONCLUSION INTRODUCTION

Congress is the primary policymaker in the United States government, but it often delegates authority to make binding decisions to the President. (1) The Supreme Court observed in 1936 that nearly every volume of the U.S. Statutes contained a statute authorizing the President to take particular actions. (2) Congress has delegated authority to the President to take action in wartime, in other emergencies, (3) and "in the name of national security." (4) The President also acts as Congress's delegate when taking certain actions with respect to immigration, (5) trade, (6) and federally owned lands, (7) among many others.

Kevin Stack dubbed the President when acting pursuant to statutory authority "the statutory president." (8) As Colin Diver explained, "[t]he President acts as delegate when he carries out specific operational responsibilities conferred upon him or his office by statute." (9) When acting as Congress's statutory delegate, "the President occupies a position quite similar to that of any other administrative officer in that his legal sanction to carry out those responsibilities is derived solely from the enacted law." (10) Unlike an administrative agency, however, the Statutory President is not subject to the Administrative Procedure Act of 1946 (APA). (11)

The APA codified a monumental compromise. (12) It was an extraordinary moment of deliberative democracy, following years of debate between Congress, dozens of federal agencies, the American Bar Association, and other interested parties. (13) The Act essentially legitimated the administrative state through process and judicial review. The Supreme Court and congressional conservatives accepted the new reality that statutes would delegate congressional authority to administrative agencies. They gave their approval on the condition that the exercise of such delegated power would be subject to procedural constraints and judicial review. (14) That bargain permeated the APA, which has since become the constitution for the administrative state. (15) Thus, when federal government agencies make binding decisions, they must satisfy the APA's procedural requirements, and their decisions are subject to judicial review under the APA.

The Supreme Court held in Franklin v. Massachusetts, however, that the President is not an "agency" under the APA. (16) Therefore, the Statutory President's actions are not subject to the APA's procedural requirements or judicial review provisions. (17) For example, when Donald Trump assumed the presidency, he issued a series of orders limiting immigration from certain Muslim-majority nations pursuant to his authority under the Immigration and Nationality Act (INA). (18) Unlike an agency, he did not publish a proposed order, solicit and consider public input, or even explain his decision fully. (19) The President made his decision in a black box, with little deliberation and no transparency.

Judicial review of the Statutory President's actions is available but is constrained significantly. When the Supreme Court reviewed President Trump's final immigration order in Trump v. Hawaii, it decided that the President made the finding the INA required: that allowing the specified people to enter the country "would be detrimental to the interests of the United States." (20) But the Court did not decide whether that finding was reasonable and consistent with the record. (21) In other words, the Court limited its inquiry to determining that the President had acted within the scope of the statutory delegation; it did not determine whether the President's order was arbitrary, capricious, or an abuse of the discretion Congress granted by statute, as it would have if the order had come from an agency. (22)

Unilateral presidential action is not a new phenomenon. (23) In recent years, though, presidents increasingly have exercised statutory authority without following the APA's procedural mandates and without full judicial review. (24) President Obama, for example, issued Executive Orders relying on delegated authority to prohibit the import of jade and rubies from Burma, (25) prohibit federal employees from texting while driving on the job, (26) and block the property of individuals deemed to have contributed to the conflict in Somalia. (27) He also used statutory power to create twenty-nine national monuments (28) and declare twelve national emergencies. (29) He redirected up to $70 million to meet "unexpected urgent refugee and migration needs," (30) determined that it was in the national interest to admit up to 110,000 refugees in fiscal year 2017, (31) and entered into the Transpacific Partnership Agreement. (32)

President Trump exercised statutorily delegated powers to withdraw from the Trans-Pacific Partnership Agreement, (33) block all property of the Government of Venezuela, (34) incentivize domestic production of rare earth metals, (35) impose a twenty-five percent duty on imported steel, (36) regulate the acquisition and use of technology from foreign adversaries, (37) sequester agency appropriations across the board, (38) cap the admission of refugees for 2020 at 18,000 people, (39) bar the immigration of people who do not have health insurance, (40) bar Europeans from traveling to the U.S., (41) and redirect billions of dollars appropriated for military construction to building a wall between the U.S. and Mexico. (42)

Despite these developments, scholars take Franklin's holding as a given, (43) and those who address presidential administration tend to focus on judicial review. (44) But Franklin's analysis was flawed, and there is far more to the APA than judicial review. As Kevin Stack observed, "[procedure provides a check on the potential abuses of statutory delegations, and its absence, particularly when the president is involved, may raise a concern about the arbitrary exercise of power." (45) Yet, Stack advocated elsewhere for a limited form of judicial review for the Statutory President, and he proposed no procedural requirements. (46)

This Article is the first to take Franklin head on. (47) It argues that Franklin was wrong and that the Statutory President should be subject to the APA's procedural and judicial review provisions. A President who acts pursuant to a congressional delegation of authority should be subject to the same constraints as any other statutory delegate. In the words of Douglas Adams, "If it looks like a duck, and quacks like a duck, we have at least to consider the possibility that we have a small aquatic bird of the family Anatidoe on our hands." (48) If the President looks like an agency and acts like an agency, they might be an agency. (49) Even if they are not actually an agency, perhaps they should be treated like one. (50)

Like any agency, the Statutory President should be constrained both procedurally and judicially. Nicholas Bagley correctly criticized administrative law's fetish with procedure. (51) On the other hand, Chris Walker is also correct that administrative law is over-reliant on judicial review: "it is a mistake to fixate on courts." (52) Both procedure and judicial review are critical to constraining the Statutory President effectively.

No doubt, Lisa Bressman and Michael Vandenbergh also are correct that "presidential control is more complex than scholars generally have acknowledged." (53) Members of the Office of Management and Budget and others in the Executive Office of the President certainly wield considerable influence in decisionmaking. Thus, Nina Mendelson appropriately cautioned that "references to the President ought to include 'his immediate policy advisors in OMB and...