Controlling presidential control.

• Author: Watts, Kathryn A.
• Position: Introduction through II. Three Case Studies from the George W. Bush and Barack Obama Administrations B. The EPA and Ozone Standards: Covert and Overt Pressure, p. 683-716

Presidents Reagan and Clinton laid the foundation for strong presidential control over the administrative state, institutionalizing White House review of agency regulations. Presidential control, however, did not stop there. To the contrary, it has evolved and deepened during the presidencies of George W. Bush and Barack Obama. Indeed, President Obama's efforts to control agency action have dominated the headlines in recent months, touching on everything from immigration to drones to net neutrality.

Despite the entrenchment of presidential control over the modern regulatory state, administrative law has yet to adapt. To date, the most pervasive response both inside and outside the courts has been a reflexive form of "expertise forcing, " which simplistically views presidential influence as "bad" and technocratic decisionmaking as "good." In narrowly focusing on the negative aspects of presidential control, expertise forcing overlooks key benefits that flow from presidential control--namely, political accountability and regulatory coherence. It also ignores the fact that presidential control is here to stay. A more realistic and nuanced response to presidential control is needed. After examining three different case studies and discussing the inadequacies of expertise forcing, this Article provides a roadmap for how a wide range of nonconstitutional administrative law doctrines could be coordinated to enhance the positive attributes and restrain the negative attributes of presidential control. The Article gives attention to doctrinal tools, such as judicial review doctrines and notice-and-comment procedures, falling into three general categories: statutorily facing rules; transparency-enhancing mechanisms; and process-forcing rules. If used in a coordinated fashion, doctrinal tools falling into each of these three categories provide a powerful and much-needed framework for responding to the new realities of presidential control and ultimately controlling--without unnecessarily constraining--presidential control.

Table of Contents Introduction I. The Entrenchment of Presidential Control A. Early Presidential Responses to Rulemaking's Rise 1. White House Review of Agency Rules via OMB 2. Presidential Directives and Personal Appropriation B. Modern Presidential Control Under George W. Bush and Barack Obama 1. George W. Bush 2. Barack Obama II. Three Case Studies from the George W. Bush and Barack Obama Administrations A. The FDA and Plan B: Covert Influence in a Scientific Arena B. The EPA and Ozone Standards: Covert and Overt Pressure C. The FCC and Net Neutrality: Leveraging Online Media Tools to Publicly Exert Pressure III. Expertise Forcing: A Pervasive but Misguided Reaction A. The Push for Expertise B. The Inadequacy of Expertise Forcing IV. Controlling Presidential Control Through a Coordinated Doctrinal Response A. Statutorily Facing Rules 1. The Statutorily Allowable Space for Presidential Directions 2. The Statutorily Allowable Space for Presidential Suggestions B. Transparency-Enhancing Mechanisms 1. Forcing Transparency via Disclosure Rules 2. Rewarding Transparency via Judicial Review. C. Process-Forcing Rules Conclusion Introduction

In 2001, then-Professor and now Supreme Court Justice Elena Kagan published a foundational article that documented a dramatic rise in presidential control over the regulatory state. (1) Kagan argued that a "distinctive form of administration and administrative control," which she called "presidential administration," emerged under Ronald Reagan and surged during Bill Clinton's presidency. (2) Kagan saw the emergence of this strong form of presidential administration as a positive development because, by her account, presidential control promotes political accountability and transparency, (3) and it furthers effective and coherent regulatory policy. (4) Yet, when she published her article in 2001, (5) Kagan noted that it was unclear whether future developments might raise new problems and challenge old assumptions about presidential administration. (6)

This Article picks up where Kagan left off nearly fifteen years ago, demonstrating that presidential control has deepened during the most recent two presidencies and confirming Kagan's intuition that a reassessment of presidential control would be necessary. As this Article shows, both Republican President George W. Bush and Democratic President Barack Obama have exerted significant control over the regulatory state. Bush often did so by relying on various forms of covert command. The Bush administration, for example, demonstrated a behind-the-scenes willingness to influence agencies' scientific findings. (7) In addition, Bush relied heavily on the Office of Management and Budget (OMB), which reviews executive agencies' proposed and final regulations as well as their regulatory plans, to exert aggressive and often-veiled White House control over agency rules. (8) Obama likewise has relied on the somewhat secretive OMB review process. (9) Obama, however--taking a cue from Clinton--has also relied heavily on overt command, trying to turn the regulatory state into an extension of his own political agenda by frequently issuing written directives and publicly claiming ownership of regulatory policy. (10) Indeed, many of Obama's very public efforts to direct the regulatory state have been splashed across the headlines in recent months. (11) From net neutrality (12) to drones (13) to immigration, (14) Obama has openly and aggressively sought to influence or outright control regulatory policy, frequently harnessing social media to maximize the impact of his efforts. (15)

Both Bush's and Obama's efforts to steer regulatory policy highlight just how complex presidential control has become. Not only does it operate in covert and overt ways, but it is exerted through a variety of different tools. Some of these tools, such as presidential directives and speeches made readily available via social media, can help to further key values, including political accountability and regulatory coherence. Yet other tools, including more veiled OMB review and behind-closed-door communications, may undermine transparency and the rule of law, taint agency science, and cast doubt on the legitimacy of agencies' decisions.

As of now, administrative law has failed to take the complexity and variety of presidential control into account. Indeed, administrative law doctrine has not adapted to presidential control in any meaningful way. This Article aims to move administrative law forward in this area, exploring how a variety of nonconstitutional administrative law doctrines can and should respond to the new status quo. (16) While numerous scholars have weighed in on long-standing debates about the constitutionality of presidential attempts to control the executive branch (17) and whether the Constitution demands that the President have authority over all executive actors, (18) scholars have given little attention to analyzing how nonconstitutional administrative law principles could be used to respond to the new realities of presidential control. (19) This Article represents the first attempt to set forth a legal framework for how a variety of nonconstitutional administrative law doctrines can be coordinated to enhance the positive and restrain the negative aspects of presidential control. (20) It identifies three relevant doctrinal categories: (1) "statutorily facing" rules, which would clarify when, as a matter of statutory construction, the President may either direct or more softly influence agencies' discretionary decisions; (2) "transparency-enhancing" mechanisms, which would both incentivize disclosure of presidential control and penalize agencies for hiding presidential influences; and (3) "process-forcing" rules designed to ensure that presidential influence does not undermine the notice-and-comment process. These three doctrinal categories provide a powerful and much-needed roadmap for responding to many current controversies swirling around presidential control, including Obama's recent efforts to influence the FCC's net neutrality rules and his executive action in the immigration arena.

This Article proceeds in four parts. Part I briefly describes how Presidents Reagan and Clinton played key roles in laying the foundation for strong presidential control over the administrative state. Then--drawing on the recent experiences of the George W. Bush and Barack Obama presidencies--Part I shows how presidential control has evolved and deepened over time, turning into an entrenched feature of the regulatory state that transcends party lines. Part II analyzes three case studies from the Bush and Obama administrations, illustrating how presidential control involves a complex mix of both positive and negative attributes. Part III critiques as inadequate the most prevalent reaction both inside and outside of the courts to presidential control--a reflexive kind of "expertise forcing" (21) that simplistically views political influence as "suspect" and expert-driven decisionmaking as "good." Finally, Part IV sets forth a powerful new roadmap for how different administrative law doctrines can be coordinated to control--but not unnecessarily constrain--presidential control.

1. The Entrenchment of Presidential Control

   As a result of important work by Kagan and other scholars, the story surrounding presidential control through the end of Clinton's presidency is now well known. (22) But legal scholars have yet to give much attention to presidential control during the two most recent presidencies--those of George W. Bush and Barack Obama. This Part begins by briefly recounting the now-familiar narrative of how Presidents from Nixon through Clinton laid the foundation for strong presidential control over the regulatory state. Then it tells the next and less-familiar chapter of the story, describing how presidential control evolved post-Clinton, during...