Separation of powers legitimacy: an empirical inquiry into norms about executive power.

Author:Coglianese, Cary
Position:Symposium: The Bounds of Executive Discretion in the Regulatory State
  1. EXECUTIVE POWER NORMS AND LAW'S LEGITIMACY II. PUBLIC PERCEPTIONS, EXECUTIVE POWER, AND LEGAL NORMS. A. Decisionmaking Study B. Responsibility Study C. Disagreement Study D. Legal Norm Study E. Synopsis: Contributions and Robustness III. IMPLICATIONS FOR EXECUTIVE POWER NORMS A. The Subtlety of Decisions and the Clarity of Bright-Line Rules B. Constraints on Presidential Involvement in Administration C. Preserving Law's Legitimacy CONCLUSION Presidential fingerprints inevitably can be found on almost any highly consequential action undertaken by an executive branch agency. This also can be true when agencies refrain from taking action. For example, when the Administrator of the U.S. Environmental Protection Agency (EPA) announced in 2011 that she would withdraw a proposal to tighten federal smog standards, her announcement came only after a White House official and the President sent her memos making it abundantly clear that the President wanted her to take that step. (1) When the Department of Health and Human Services and the Treasury Department announced, during the period from 2012 to 2014, a series of delays in the enforcement of various requirements of the Affordable Care Act, the President and his staff were deeply involved in crafting these workaround measures that made it easier to implement a complicated statute. (2) And when the Secretary of the Department of Homeland Security (DHS) sent a memo to the heads of the U.S. Immigration and Customs Enforcement and two other DHS agencies in late 2014, telling them to refrain from deporting millions of undocumented immigrants who met certain criteria, the President himself made a televised address to the nation announcing these sweeping immigration deferrals as if the actions being taken were solely his own. (3)

    In each of these cases, as in many others across different administrations, White House intervention played an important, if not arguably decisive, role in the resulting outcomes. (4) Yet the underlying legislation in most of these cases specifically delegated implementing authority to the head of each agency, not to the President. In such cases, may the President lawfully become the decisive factor in determining what actions an administrator takes or does not take?

    From the nation's earliest days, Presidents have tended to assume that, as the head of the executive branch and as the official who can remove the heads of most agencies at will, Presidents do have the authority to direct what executive branch agencies do.5 But the nature and extent of the President's directive authority has also been vigorously debated by legal scholars, (6) especially recently during the George W. Bush Administration, with its emphasis on the unitary executive theory, and through the duration of what President Obama's political opponents have called his "imperial" presidency. (7)

    The continuing debate over the President's directive authority is but one of the many separation-of-powers issues that have confronted courts, scholars, government officials, and the public in recent years. The Supreme Court, for instance, has considered whether the President possesses the power to make appointments of agency heads without Senate confirmation during certain congressional recesses. (8) The Court has passed judgment recently, but has yet to resolve fully, questions about Congress's authority to constrain the President's power to remove the heads of administrative agencies. (9) And the Court has considered the limits on Congress's ability to delegate legislative authority to other rulemaking institutions. (10) In these and other cases involving disputes over interbranch relations, courts and academic analysts have perennially grappled with both legal interpretation as well as constitutional history and political theory. Yet, as much as these cases involve law, history, and theory, they also at least implicitly raise decidedly empirical questions about law's effects on governmental behavior as well as its impacts on the legitimacy of constitutional government.

    Empirical questions are embedded throughout all forms of law, but the empirical effects of structural aspects of constitutional law have so far largely escaped systematic study. (11) Admittedly, political scientists have studied the three branches of government and their interactions extensively, but what have so far avoided systematic empirical study are the relationships between different choices about separation-of-powers doctrine and outcomes in terms of governmental behavior or public attitudes about governmental legitimacy. (12) This Article offers an initial foray into this largely unexplored terrain, providing a distinctive empirical investigation of public norms about executive power and how doctrinal choices can affect perceptions of the legitimacy of legal judgments. We focus here on Presidents' efforts to get involved in shaping what agencies do.

    Part I begins with a brief overview of the main legal issue motivating this Article: legal limits on a President's role in shaping action or inaction by executive branch officials appointed to lead administrative agencies. We explain how norms constraining presidential involvement in administration can be conceived in the form of either standards or rules. We suggest that a leading conception of an applicable standard in this context--a standard that distinguishes between presidential oversight and decisionmaking--is unlikely to do much, if anything, to constrain Presidents from effectively controlling administrative agencies. We hypothesize further that the invocation of such a standard could actually undermine law's legitimacy, a concern especially worthy of exploration given that the standard purportedly applies to a high-level, political setting where judgments about compliance with it will almost inevitably become politicized. A norm in the form of a rule will, we predict, turn out to be more resistant to illegitimacy concerns.

    Part II details the four empirical studies we conducted to examine the expectations introduced in Part I. We begin by describing our research methods, which comprise vignette-based surveys, and then proceed to report our results. Taken together, the surveys provide a revealing window into public perceptions about responsibility for governmental action, disagreements between Presidents and the heads of agencies, and how the form of separation-of-powers norms can shape perceptions of legitimacy. We find, among other things, that people's judgments about the legitimacy of constitutional law rulings can be affected by the form that legal doctrine takes, even when controlling for any perceived substantive differences in the law. Specifically, our evidence indicates that public views about the legitimacy of court decisions can be negatively affected by standard-like formulations of separation-of-powers doctrine relative to a formulation based upon a bright-line rule.

    Part III concludes by highlighting the implications of our findings. Most broadly, our empirical results imply that what appears to be the prevailing view about the applicable doctrinal standard on executive power would benefit from reconsideration. Our results raise questions as to how much positive value, if any, comes from a standard based on a distinction between oversight and decisionmaking. Not only is the standard extremely difficult--if not impossible--to operationalize in any clear manner, but also our results suggest that, irrespective of such a standard, Presidents do face other meaningful constraints, due to, if nothing else, the responsibility the public assigns to Presidents when they start to get involved in administrative matters. Perhaps more striking than the prevailing oversight-versus-decisionmaking standard's limited, if nonexistent, positive value, our results indicate that such a standard in this context brings with it certain negative effects, in terms of a loss to law's legitimacy. Public attitudes about legal legitimacy are negatively affected by the invocation of standard-like norms on executive power, while by comparison such legitimacy remains more resilient when rule-like norms prevail.


    This Article brings new empirical inquiry to an old debate over the role of Presidents in directing the daily functioning of government by administrative agencies. The impact of federal administrative agencies is hard to overstate. They administer public subsidies, enforce civil rights laws, regulate everything from food safety to nuclear power plant operation, and perform every domestic function of federal government that affects the lives of Americans. Congress may adopt about one hundred statutes per year, but the more than one hundred administrative agencies, like the Department of Transportation and the EPA, collectively adopt several thousand new regulations every year. (13) Officials at these myriad federal agencies routinely exercise discretion in ways that result in enormous consequential effects on individual and societal welfare--for good or ill. (14)

    If much of government today is administrative government, who bears the responsibility and authority for directing administration? One answer emphasizes the heads of administrative agencies, whether they are cabinet secretaries, commissioners, or administrators. By their express terms, most statutes delegate administrative authority specifically to these heads of administrative agencies. For example, the Occupational Safety and Health Act delegates authority to the Secretary of Labor: "The Secretary may by rule promulgate, modify, or revoke any occupational safety or health standard...." (15) The Clean Air Act similarly delegates authority to issue automobile emissions standards to the Administrator of the EPA:

    The Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards...

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