MAKING SENSE OF ABSENCE: INTERPRETING THE APA'S FAILURE TO PROVIDE FOR COURT REVIEW OF PRESIDENTIAL ADMINISTRATION.

• Author: Rosenblum, Noah A.

INTRODUCTION 2144 I. THE PRESIDENT IN THE ADMINISTRATIVE STATE 2147 A. Presidential Administration Today. 2147 B. Presidential Administration 's Recent Triumph 2149 C. The Roberts Court and Presidential Legitimation 2151 II. JUDICIAL REVIEW IN THE ADMINISTRATIVE STATE 2153 A. The Development of American Administration 2153 B. Judicial Review, Historical Keystone of Administrative Legality 2157 C. Judicial Review and the APA 2159 III. (NO) JUDICIAL REVIEW OF PRESIDENTIAL ADMINISTRATION? 2162 A. Sounding the Silence 2169 B. The ABA 's Special Committee on Administrative Law 2163 C. The Attorney General's Committee on Administrative Procedure. 2165 D. Congressional Hearings 2166 E. The Attorney General's Manual on the APA 2167 IV. EXPLAINING THE MISSING PRESIDENT 2169 A. Two Hypotheses 2169 B. One Entailment 2172 C. Three Paths Forward 2173 CONCLUSION 2174 INTRODUCTION

Where is the President in the APA?

The question is in earnest. Modern government is agency government. But much of the most significant agency action today is driven by the President. Yet the most important law governing agency action is oddly silent about the Chief Executive.

The puzzle is especially striking when we focus on what the Administrative Procedure Act (APA) does and why it is so important. As the academic literature has repeatedly emphasized, the APA memorialized a basic administrative law settlement. Regulated parties would get a "day in commission" instead of a "day in court." (1) But they could appeal to judges post-facto to check administrative overreach. This model--allowing for limited judicial review of agency action in the name of protecting basic rights--found its way into the organic acts and practices of several pre-APA agencies. And it became the core of the APA itself. Agencies came to act in the shadow of judicial review.

This makes the APA's silence about court review of the President troubling. For the past seventy-five years, the statute has helped structure the administrative state, giving it a statutory frame, if not an actual constitution. Yet it leaves today's leading administrative actor out.

Hence our difficulty. Where is the President in the APA? How can it be that the most important statute for governing administration should be silent on the most important factor in administrative action? What is this alleged statutory constitution that it could be so defective? And what does it mean for the legacy of this venerable Act?

This Essay motivates these questions and offers a tentative historical answer. The Essay hypothesizes that the President is missing from the APA because he was not the kind of administrative actor the APA worried about. This in turn suggests that the President played a different role in administration at the time the APA was enacted, and that the purposes of judicial review then may have been different too. At the time, court review of administrative action was justified as a last-ditch, stop-gap measure to ensure government action was not arbitrary and did not trench on protected rights. To ensure those goals, courts did not need to review presidential administration, for two reasons: first, because the President was not the prime director of administrative action; and second, because when the Presidency was involved in administration, it was in service of the APA's goals rather than in tension with them.

If these conclusions are correct, they tell us something obvious but important about the APA: it embodies a wholly different vision of government from the one we live with now. In other words, the APA is not only part of a "lost world" of administrative law but also a component piece of a lost governance regime. (2) Its diamond jubilee gives us occasion to mark how much our government differs from the one it responded to and to begin imagining a new administrative law adequate to our new administrative realities.

Part I begins this project by identifying the importance of the President in the administrative state. It shows how, as a matter of practice, presidential involvement in administrative action has become a central feature of American government. It then shows how law has evolved to keep pace. In a series of recent cases, the Supreme Court has made presidential administration the foundation for the lawfulness of the administrative state itself.

Part II turns to how administration has traditionally been legitimated: not through the Presidency but through courts. The Part begins by briefly recapitulating the history of administrative law, to show how judicial review came to legitimate American administration. Allowing impacted parties to contest agency action before federal judges helped make administration acceptable by reassuring regulated interests, pacifying opposition from lawyers, and harmonizing regulatory goals with conservative conceptions of the rule of law. It also checked arbitrariness and so guarded against authoritarianism, a particularly important goal at the time the APA was developed. This model of administrative law, with judicial review at its center, was enshrined in the APA and has remained central to administrative law.

Part III draws out the implicit tension between Parts I and II to frame this Essay's puzzle: If the President is so central to administration, and the way to legitimate administration is through judicial review, why doesn't the APA cover the President? It looks at historical sources from the Bremer-Kovacs collection to confirm that the absence of the President is not accidental. A brief canvass of some of the key documents from the legislative history of the APA suggests that the Presidency was hardly discussed in conjunction with the APA and that, when it was, it had little to do with presidential administration.

Part IV develops two hypotheses to explain why neither the APA itself nor the actors involved in its passage worried overmuch about the role of the President in administrative action. First, and most obviously: the President simply was not an important driver of administrative action. Second, and more subtly: insofar as the President was involved in administrative action, he was perceived to be advancing the same goals the APA sought to address through judicial review. The Part concludes by drawing out what these two hypotheses would mean for administrative law and the legacy of the APA. In brief: the APA is inadequate to our needs and we will need a new administrative law to account for a new world of presidential administration. This in turn suggests three different paths for scholars of administrative law in a presidentialist age--one scholarly, based in research; another hopeful, grounded in democratic reform; and a third realist, looking for the rule of law in an era of executive unilateralism.

A brief Conclusion recapitulates the meaning of the APA's silence on judicial review of presidential administration.

1. THE PRESIDENT IN THE ADMINISTRATIVE STATE

   1. Presidential Administration Today

      "President Obama has a new phrase he's been using a lot lately," NPR reported in 2014: "I've got a pen, and I've got a phone." (3) The expression, much referenced by Obama and his team in the face of an opposition Congress, captured the president's plan to drive change on his own. "[W]ith the stroke of a pen," he could sign executive orders, making policy unilaterally. (4) With his phone, he could serve as the nation's chief convener, if not its executive, bringing stakeholders together to take collective action. (5) With his pen and his phone, Obama implied, he would be able to work around a recalcitrant legislature to realize his agenda. As he summarized his approach: "I am going to be working with Congress where I can... but I am also going to act on my own if Congress is deadlocked." (6)

      Obama would go on to realize important objectives unilaterally. But, with the benefit of hindsight, his most important victories seem independent of his pen-and-phone strategy. They were not the result of unilateral executive action or stakeholder convenings, but the product of administrative processes.

      Consider Deferred Action for Childhood Arrivals, Obama's transformational immigration policy, which enabled millions of undocumented Americans to live and work without fear of imminent deportation. It was announced by the President in a Rose Garden ceremony, remains closely associated with Obama himself, and was explicitly designed to get around a stonewalling Congress. (7) Yet it was not the result of a convening. And it did not bear Obama's signature. The formal document containing the new policy was styled as an internal administrative memorandum, issued by the Secretary of Homeland Security, announcing new standards for the exercise of prosecutorial discretion in her department. (8) This was not presidential pen-and-phone. This was agency action.

      Obama's legacy should not surprise us. He made policy the same way most recent Presidents have: through presidential administration. President Bill Clinton, Obama's democratic predecessor, had famously used his position to encourage agency action, for which he then took credit. (9) His approach was remarkably successful. After the Republicans took Congress in 1994, Clinton's legislative agenda seemed dead. (10) He was forced to rely on agency action to advance his policy priorities. Presidential administration allowed him to rack up significant achievements. (11) He went on to win reelection by a decisive margin. (12)

      Presidents who followed Clinton learned from his success. As he had showed, presidential administration was a strategy particularly well-suited to divided government. As his successors found themselves in similar situations, they fell back on similar tools. Thus, after his party lost control of Congress in 2006, President George W. Bush advanced his major domestic policies through agency directives, including in particular on environmental regulation and stem-cell research. (13) Obama...