Policing Executive Teamwork: Rescuing the APA from Presidential Administration.

• Author: Powell, William

ABSTRACT 71 TABLE OF CONTENTS 73 INTRODUCTION 74 I BINARY RULE, NONBINARY WORLD 79 A The Binary Rule 79 B The Nonbinary World 87 1 Mixed Delegations and Subdelegations 87 2 Presidential Administration and the Unitary Executive 90 3 Explosion of Presidential Administration in Practice 93 C Why It Matters: Differences Between APA and Nonstatutory Review 95 1 Lack of Clarity 97 2 Cause of Action and Sovereign Immunity 98 3 Rationality Review 100 4 Procedural Review 101 5 Deference to Statutory Interpretation 102 6 Remedies 103 II THE MESSY BUSINESS OF APPLYING THE APA TO EXECUTIVE TEAMWORK 103 A The "Last Act" Approach 104 B The "Presidential Nature" Approach 108 C The Divide in Action: "Presidential" Permits Issued by Agencies 110 D SCOTUS Dodges the Question 114 III A SENSIBLE LINE BETWEEN APA AND NONSTATUTORY REVIEW 116 A Others' Ideas 117 B "Agency Nature": Applying the APA to Presidentially Influenced Agency Action 119 C Doctrinal Defense of the "Agency Nature" Rule 123 D Political Defense of the "Agency Nature" Rule 125 CONCLUSION 128 INTRODUCTION

On November 20, 2014, President Barack Obama delivered a televised address to the nation about immigration. (1) After the failure of comprehensive immigration reform legislation in 2013, (2) the President announced that he would use his own authority to make our "broken" immigration system "more fair and more just." (3) Among the reforms he announced was a program called Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA"), although he did not use that clunky title in his speech. (4) Instead, he pitched the program as needed "to deal responsibly with the millions of undocumented immigrants who already live in our country." (5) He said that immigration enforcement should target "felons, not families" and "criminals, not children." (6) For undocumented immigrants who had been in the country for more than five years, had children who were citizens or lawful permanent residents, and could pass a criminal background check, he offered a "deal": they could "stay in this country temporarily without fear of deportation[,] . . . come out of the shadows[,] and get right with the law." (7)

The President's speech made it crystal clear who was making these changes: President Obama himself. He described the programs as "actions I have the legal authority to take as President." (8) He doubled down on this point throughout the address: "The actions I'm taking are not only lawful, they're the kinds of actions taken by every single Republican President and every single Democratic President for the past half century." (9) The press coverage attributed the actions to the President. The headline in The New York Times read, "Obama, Daring Congress, Acts to Overhaul Immigration." (10)

But the policy memo announcing DAPA, issued that same day, was not an executive order. Instead, Secretary of Homeland Security Jeh Johnson announced DAPA in a memorandum to his subordinates. (11) In the parlance of administrative law, this was "guidance." When Texas sued to stop DAPA, it argued that the policy had not complied with the Administrative Procedure Act's notice and comment requirements for legislative rules. (12) Principally on that basis, the U.S. Court of Appeals for the Fifth Circuit upheld an injunction against the program, (13) and the U.S. Supreme Court affirmed by an equally divided court. (14)

The result might have been different if President Obama had just announced DAPA on his own letterhead. That's because in Franklin v. Massachusetts, the Supreme Court held that the APA does not apply to the President. (15) Instead, presidential actions are subject to what's known as "nonstatutory review." (16) The exact contours of nonstatutory review are the subject of much scholarly and jurisprudential debate. (17) At a minimum, it includes review for whether the President's action was unconstitutional or without statutory authorization. (18) It likely does not encompass any "hard look" substantive review for whether the action is arbitrary and capricious.

And it certainly does not impose any procedural requirements, like the APA's notice and comment process. If DAPA had been an executive order, it might have been invalidated on some other ground, but it would not have needed to go through notice and comment.

This seems like an absurd result. The legal regime that applies to an executive action should not be determined by the name on the letterhead. (19) Yet as this DAPA hypothetical illustrates, it is difficult to apply a binary rule to a nonbinary world. The APA applies to agencies; it doesn't apply to the President. (20) That works fine at the poles of the spectrum when the President or an agency act alone. But in an era of Presidential Administration, that is becoming an increasingly rare circumstance. What about the multitude of situations in which the President and agencies act together? Frequently, the President issues an executive order telling an agency how to exercise its statutory authority. (21) Even more often, the President influences agency action in more subtle ways, such as by meeting with agency heads or through mandated cost-benefit analysis from the Office of Information and Regulatory Affairs ("OIRA"). (22) Sometimes, Congress delegates authority to the President, who redelegates it to an agency. (23) Other times, Congress writes a statute with a mixed delegation, telling an agency to act with oversight from the President or the President to act through an agency. (24) Does the APA apply in those situations? All? None?

Scholars have not provided an answer. The literature on Presidential Administration and the Unitary Executive Theory has championed greater presidential authority over the administrative state without much consideration of the implications for the APA. Now-Justice, then-Professor, Elena Kagan's pathbreaking article promoting greater political influence over the administrative state devotes only a paragraph and a footnote to the implications of her proposals for the scope of the President's APA exemption. (25) Professor Kevin Stack has responded to Kagan with several articles arguing that the President's directive power over agencies should be far more constrained. (26) But he too has spent little time on how his proposals interact with Franklin. Likewise, scholarship on how nonstatutory review should compare to APA review has largely ignored the predicate question of how to draw the line between those two regimes. (27) In short, the academic literature often accepts the President's APA exemption without much interrogation of its limits and implications, instead focusing on the contours of nonstatutory review. This Article is the first to address the predicate question. (28) It is also the first to comprehensively study the caselaw addressing this important issue.

Courts have met the challenge with some confusion, and the caselaw is split. Some courts, which this Article refers to as the "last act" camp, exempt the President from the APA only when she takes the final action in a sequence affecting the plaintiff's rights. (29) Other courts, which this Article calls the "presidential nature" camp, exempt any action that is presidential in nature, however that might be defined, even when the agency is the primary actor and the President is only in the background. (30) This Article argues that neither approach is appropriate. The "last act" approach arguably misreads Franklin and turns the President's APA exemption into an empty formality. Worse, the "presidential nature" approach poses an existential threat to the existing structure of American administrative law. As the President becomes more involved in directing agencies, his exemption from the APA could significantly reduce judicial review of executive actions, undermining the presumption of reviewability at the core of American administrative law. (31) The purpose of the APA was to ensure "broad" and "generous" judicial review of agency action. (32) That purpose will not be realized if presidential involvement is permitted to shield significant agency actions from APA review.

The risk is not theoretical. President Trump has issued Executive Orders at an unprecedented rate. (33) Many of those orders, especially those in the immigration context, simply direct agency heads on how to exercise their authorities. They use commanding language: "The Secretary shall . . . ." (34) As other scholars have noted, courts have struggled to decide what standards apply in suits challenging those orders. (35) And after its win in Trump v. Hawaii, (36) the government has argued that limited rational-basis review should apply, instead of traditional APA arbitrary-and-capricious review, even to a suit bringing APA claims against agency actions, so long as those actions were influenced by the President. (37) How far that argument can go is yet to be seen, but courts are likely to encounter an increasing number of cases testing the scope of Franklin v. Massachusetts. The Trump Administration's efforts to add a citizenship question to the census nearly set up a high-profile fight over the President's APA exemption. After the Supreme Court invalidated the citizenship question under the APA's "arbitrary and capricious" standard, (38) President Trump briefly considered adding the question by executive order, thereby using his APA exemption to circumvent the Court's decision. (39) Although Trump ultimately backed down on the citizenship question, (40) a showdown on the scope of Franklin is still looming.

In this Article, I propose the "agency nature" approach. Courts should apply the APA whenever an agency acts pursuant to its own statutory powers or exercises discretion that determines legal rights and obligations, regardless of the President's involvement. What matters is the nature of the action, rather than any formalistic test based on finality or letterhead. But in accordance with...