Introduction: the bounds of executive discretion in the regulatory state.

Author:Coglianese, Cary
  1. THE FACES OF EXECUTIVE DISCRETION A. Three Faces of Executive Power B. Executive Discretion: Presidential and Administrative.... II. THE BOUNDS OF EXECUTIVE DISCRETION A. The Scope of Executive Power B. Executive Power to Defer C. Assessing Possible Bounds III. THE FUTURE OF EXECUTIVE DISCRETION Today's Congress appears to be far from the kind of robust institution that the Framers of the U.S. Constitution feared when they characterized the legislature as the most dangerous branch of government. (1) Political polarization and gridlock have hampered Congress's ability to act and undoubtedly contributed to the fact that today's worries about the concentration and abuse of federal power usually center on the executive branch. (2) Legal scholar Bruce Ackerman, for example, has decried how modern circumstances have "transformed the executive branch into a serious threat to our constitutional tradition." (3) Arguing that executive power threatens American democratic governance, scholar Peter Shane has plainly declared that "the President is the most dangerous branch." (4)

    Such claims of excessive executive power call to mind historical examples of forceful exertions of presidential authority, such as when President Truman asserted inherent executive authority to seize and run the nation's steel mills, a move the Supreme Court famously blocked in Youngstown Sheet & Tube Co. v. Sawyer (5) But present-day concerns over executive power have emerged as more than a matter of historical interest. Contemporary scholarly voices of alarm join with those of political leaders from both the right and the left who, not surprisingly, in their turn deplore exercises of executive authority by administrations of their opposing parties. (6) Democrats have resoundingly criticized President George W. Bush and his Administration's invocation of the unitary executive theory, while Republican members of Congress have taken to criticizing--even suing--the Obama Administration over executive initiatives on policies as varied as health care, immigration, and gun control. (7)

    Although fierce, many recent legal controversies over executive power have involved what remains, at least to the larger public, a relatively obscure aspect of government: namely, the implementation of domestic policies by the many cabinet departments and other administrative agencies that carry out governmental functions on a day-to-day basis. This vast apparatus of the regulatory state, centered within the executive branch, has grown dramatically since the founding of the United States. Although less visible to most Americans than other governmental institutions like Congress or the presidency, federal departments and agencies wield power over vast segments of the economy, affecting almost every important facet of contemporary life. What actions these domestic agencies take and how they make their decisions matter greatly, making the discretion exercised by these administrative institutions a proper matter for both investigation and concern.

    Not only do contemporary controversies revolve around the day-to-day operation of the regulatory state, but they also increasingly involve still subtler exercises of executive discretion than (merely) deciding what policies to adopt or actions to take. Several important controversies in recent years center not so much on executive action at all--as was the case with Truman's attempt to seize control of steel mills--but rather on the strategic deployment of executive faction. When the Obama Administration announced in 2013 that it was effectively extending certain compliance deadlines under the Affordable Care Act, it did so by declaring that it would refrain from taking enforcement actions for the period of the extension. (8) Similarly, when President Barack Obama announced a major immigration reform initiative in 2014, the centerpiece of that reform package was the Administration's stated commitment not to enforce immigration laws against certain undocumented immigrants whose children are U.S. citizens or legal permanent residents. (9) In both of these instances, the Obama Administration justified its policy choices at least in part on executive discretion not to pursue certain enforcement actions. (10)

    It has long been accepted that, absent any express statutory restriction to the contrary, the executive branch possesses broad discretion over which cases it prosecutes and which ones it does not. (11) Legal restrictions on executive authority have typically applied only after the executive branch has decided to act, not before it acts. Before any final action occurs, the executive branch possesses what the Supreme Court has recognized as an "absolute discretion," at least when it comes to enforcement. (12) Yet today, the absoluteness of that discretion is being put up for debate. As Presidents and their appointees increasingly find more creative ways to achieve substantive policy results through what have previously been considered completely discretionary means, it becomes understandable that scholars, governmental leaders, and the public are beginning to wonder about whether there should be any limits on this approach to the exercise of executive power. It was not very surprising that the Supreme Court granted certiorari to review a district court injunction blocking the Obama Administration's immigration policy. (13) But it was telling that the Court, on its own accord, added to the questions raised by the parties a constitutional question involving the duty of a President to take care that federal laws are faithfully executed. (14)

    Although the Court ultimately declined to answer any of the questions raised in that case, (15) the central question remains: what are the proper bounds of executive discretion in the regulatory state, especially over administrative decisions not to take enforcement actions? This question, which, just by asking it, would seem to cast into some doubt the seemingly absolute discretion the executive branch has until now been thought to possess, has become the focal point of the latest debate to emerge over the U.S. Constitution's separation of powers. That ever-growing, heated debate is what motivated more than two dozen distinguished scholars to gather for a two-day conference held late last year at the University of Pennsylvania Law School, a conference organized around the papers appearing in this special Issue of the University of Pennsylvania Law Review. We are pleased to introduce this insightful collection of scholarship by explicating the conceptual contours underlying the contemporary debate over executive discretion, and its bounds, in the regulatory state.


    To begin to understand how executive discretion is or should be bounded, it helps to define what "executive discretion" means. We take "discretion" plainly to mean the unconstrained exercise of governmental power. We take "executive" to encompass not only the President but also the White House staff as well as the appointees and other officers who serve within the administrative agencies that carry out the laws adopted by Congress. To ask about the bounds of executive discretion, then, is to ask about how much unconstrained power the President and administrative officials should possess. In this introductory Article, we do not offer answers to that question, for, broadly speaking, that question is what the articles that follow in this Symposium seek to address. Here, we simply note that what bounds are, or should be, placed on executive discretion will likely depend on the type of power under consideration.

    1. Three Faces of Executive Power

      Political scientists have long grappled with the meaning of power, and, over forty years ago, political theorist Steven Lukes offered a significant advance by articulating what have come to be known as the three faces of power. (16) Greatly simplifying, these three faces comprise the powers to make decisions, set agendas, and shape preferences. (17) Lukes's framework conceptualizes power within any social and political arena, including government.

      Without denying the value of Lukes's framework as a matter of sociology, we think that, from the standpoint of constitutional and administrative law, it is helpful to recognize three slightly different ways of conceiving of the faces of executive power: the power to command, persuade, and defer. These three faces of executive power are not incompatible with Lukes's framework, but they serve to illuminate key questions about how (or by how much) each type of executive power should be constrained by law.

      The first face of executive power is the power to command. For most readers, this will be the kind of power that most naturally springs to mind when thinking about executive discretion. It is also very closely related to Lukes's first face of power of decisionmaking. The power to command is the power, as political scientist Robert Dahl once wrote, to compel people to do what they "would not otherwise do." (18) Truman's executive order seeking to seize control of the nation's steel mills is a paradigmatic example of the power to command. It is a power that compels action, invoked any time government adopts an order or a rule. (19)

      Well-accepted principles of U.S. constitutional and administrative law treat this type of power most suspiciously, making it more likely to be subject to judicial review than any other type of executive power. The Supreme Court's decision in Youngstown Sheet & Tube Co. v. Sawyer, (20) blocking President Truman's steel seizure order, makes plain that presidential action of this first type must be grounded in law and will be scrutinized by the courts. As Justice Robert Jackson's concurring opinion in Youngstown makes clear, when a President acts in contravention of a statute, "his power is at its lowest ebb." (21)

      Likewise, when an administrative agency exercises its power to command...

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