The Judicial Response to the Presidential Polarization of the Administrative State

Published date01 January 2019
Date01 January 2019
Subject MatterArticles
American Review of Public Administration
2019, Vol. 49(1) 3 –20
© The Author(s) 2018
Article reuse guidelines:
DOI: 10.1177/0275074018754888
The 20th-century rise of the administrative state transformed
the relationship between government and its citizenry (D. H.
Rosenbloom, 1981). Government agencies, largely staffed
by career civil servants, affected the lives of almost every
resident of the United States. At the federal level, unelected
public administrators took on more responsibility for imple-
menting a growing number of federal programs and man-
dates (O’Toole, 1987). Through the early 1930s, “scholars
and presidents believed career civil servants could be trusted
to neutrally implement the president’s policies” (Golden,
2000, p. 4). Neutral competence went hand in hand with the
professionalization of public administration (Mosher, 1982;
Richardson, 2017; Woll, 1977). Government worked. The
golden age of public administration had arrived.
Gradually this benevolent view of the federal bureaucracy
came under attack (Rourke, 1992). A consensus emerged that
“bureaucrats exercised discretion in ways that undermined
the goals and directives of their elected superior in the White
House” (Golden, 2000, p. 4). The federal bureaucracy oper-
ated as a fourth branch of government. Instead of being
responsive to the President, federal agencies and depart-
ments often demonstrated a greater responsiveness to mem-
bers of Congress, congressional committees, and powerful
special interests (Golden, 2000; Woll, 1977). Presidents
needed to find a way to tame the bureaucracy if they wanted
to fulfill their promises to the electorate.
When Franklin D. Roosevelt assumed the presidency
after three Republican presidents, Roosevelt did not trust the
“neutral competence of the permanent bureaucracy he
confronted” (Rourke, 1992, p. 540). He feared federal
employees would try to block his agenda. To deal with this
perceived problem, Roosevelt persuaded Congress to create
several “new organizations to administer New Deal pro-
grams” (Rourke, 1992, pp. 540-541). The federal govern-
ment hired hundreds of thousands of new federal employees
outside of the traditional federal civil service hiring rules.
After Franklin Roosevelt, both Democratic and Republican
Presidents continued their efforts to gain greater control over
the federal bureaucracy (Durant, 2009; Kagan, 2001; Rourke,
1992). This drive to exert greater presidential control over
the exercise of bureaucratic power gave rise to the modern
administrative presidency (Durant, 2009; Kagan, 2001;
Nathan, 1975; Woll, 1977).
The article argues that to the surprise of judicial and pub-
lic management scholars, recent decades have seen federal
judges demonstrate a much greater willingness to challenge
the authority of presidential administrations to use bureau-
cratic power to implement their public policy goals and
objectives (Durant & Resh, 2010; Posner & Epstein, 2017).
As part of this new judicial activism, federal district judges
adopted the controversial practice of issuing national injunc-
tions prohibiting federal agencies to implement presidential
directives across the country when challenges to agency
action were brought under the Administrative Procedure Act
754888ARPXXX10.1177/0275074018754888The American Review of Public AdministrationRoberts
1James Madison University, Harrisonburg, VA, USA
Corresponding Author:
Robert Roberts, Department of Political Science, James Madison
University, Miller Hall, Harrisonburg, VA 22801, USA.
The Judicial Response to the Presidential
Polarization of the Administrative State
Robert Roberts1
From the late 20th century through today, the relationship between the administrative state and the judiciary has undergone
major changes. The same period has seen presidential administrations seek to make use of bureaucratic power to implement
their public policy initiatives without having to obtain the approval of Congress. After reviewing the evolution of judicial
oversight of the administrative state, the essay argues that the federal courts now make use of an ad hoc approach for
determining the scope of judicial oversight of the administrative process. The essay argues that the use of this ad hoc approach
has done serious damage to the administrative state, providing insufficient guidelines for presidential administrations to make
use of bureaucratic power to implement public policy initiatives.
National Injunctions, Administrative Presidency, Neutral Competence
4 American Review of Public Administration 49(1)
(APA; Berger, 2017; Bray, 2017). This trend constitutes a
major expansion of federal judicial oversight of the presiden-
tial power and places the federal judiciary in direct conflict
with the administrative presidency.
Beginning in the 1980s, presidential administrations
expanded their use of bureaucratic power to distribute ideo-
logical patronage. Presidents did not have to rely primarily
on Congress to fulfill their campaign promises. Presidential
administrations found much more effective ways to circum-
vent the bureaucracy (Durant, 2009; Kagan, 2001). If career
civil servants opposed the use of bureaucratic power to
implement a President’s agenda, they often found themselves
cut out of the policy-making process (Richardson, 2017).
Presidential administrations found it possible to find exper-
tise outside of the government to support their agendas. After
the election of Donald Trump, the Environmental Protection
Administration (EPA) dismissed many long-standing mem-
bers of advisory panels and replaced them with climate
change skeptics (Henry, 2017). Despite complaints, the EPA
did not reverse its action. The Trump administration also
faced strong criticism for their treatment of career foreign
service officers. Critics alleged that political appointees in
the Department of State cut career diplomats out of delibera-
tions on important foreign policy issues (Davidson, 2017).
According to the critics, this treatment led directly to the res-
ignation of many experienced career diplomats (Davidson,
2017). This deprived the State Department of critical
First, the article traces the evolution of judicial oversight
of the modern administrative state. This includes periods
where the federal judiciary exercised limited judicial over-
sight of public administration at the local, state, and federal
level as well as periods when the federal judiciary signifi-
cantly expanded federal judicial oversight of public adminis-
tration. Second, the article examines how the U.S. Supreme
Court responded to the rise of the administrative presidency.
Beginning in the early 1980s, the U.S. Supreme Court would
issue a series of decisions dealing with the use of bureau-
cratic power by presidential administrations to deal with
broad public policy issues. These decisions often conflict.
Some decisions placed the exercise of bureaucratic power
under the microscope. Other key decisions granted presiden-
tial administrations considerable deference. Third, the article
examines the recent trend of federal courts expanding their
judicial oversight of the exercise of bureaucratic power, and
its implications for bureaucratic neutral competence and the
legitimacy of the administrative state (Demir, 2009;
Overeem, 2005).
Bureaucratic Anti-Legalism and the
Divorce of Law From Administration
During the late 19th and early 20th centuries, Frank J.
Goodnow became one of the founders of the discipline of
public administration (Storing, 1965). Goodnow saw the
need for the development of a separate body of administra-
tive law to prevent the abuse of discretion by public agencies
and public administrators (Lynn, 2009). Although the disci-
pline of public administration had the ability to do great
good, it also had the ability to do great harm. Only a handful
of other public management scholars joined Goodnow in his
quest for a new body of administrative law to hold govern-
ment accountable as its power expanded (Dimock, 1933).
Instead, many public management scholars accepted a “man-
agerialistic” approach to public management that down-
played the threat of the abuse of administrative power
(Christensen, Goerdel, & Nicholson-Crotty, 2011, p. i125).
In his classic work, Introduction to the Study of Public
Administration, Leonard White (1926) argued that the study
of administration should start from the base of management
rather from the foundation of law (Storing, 1965). From
White’s perspective, judicial oversight made it much more
difficult for public administrators to operate governments
The federal judiciary, however, initially rejected this argu-
ment. Instead, the federal judiciary placed the exercise of
bureaucratic power under the microscope (D. H. Rosenbloom,
1981; D. H. Rosenbloom, O’Leary, & Chanin, 2010). This
meant engaging in de novo review of fact-based regulatory
decisions instead of deferring to expertise of federal regula-
tory agencies such as the Interstate Commerce Commission
(ICC). One might argue that conservative federal judges took
this action to protect business and industry from government
regulation with little concern for potential civil liberty viola-
tions involving average Americans. On the contrary, one
might argue that some federal judges had a legitimate con-
cern over the potential for the abuse of power by federal
regulations (Schiller, 2007). Whatever the reason, federal
courts often substituted their analysis of the facts (de novo
review) for factual findings of federal regulatory agencies
(Schiller, 2007). Equally important, through much of the
1930s, the U.S. Supreme Court narrowly construed the
authority of Congress to make use of the Commerce Clause
to expand federal regulation and the authority of Congress to
delegate to federal agencies and departments much greater
discretion to formulate and implement major public policy
initiatives (D. H. Rosenbloom, 1981; D. H. Rosenbloom
et al., 2010). This approach placed the U.S. Supreme Court
on a collision course with the administrative state (D. H.
Rosenbloom et al., 2010).
The U.S. Supreme Court decision, in Schechter Poultry
Corp. v. United States (1935), came to symbolize the per-
ceived hostility of the U.S. Supreme Court to big govern-
ment (Pritchett, 1949). The decision declared unconstitutional
key provisions of the National Industrial Recovery Act of
1933 (NIRA). The NIRA constituted the cornerstone of
Roosevelt’s New Deal program designed to get the country
out of the Great Depression. The decision so enraged
Roosevelt, he proposed to increase the number of Justices on
the U.S. Supreme Court. During the late 1930s, the U.S.

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