The Judicial Response to the Presidential Polarization of the Administrative State

• Author: Robert Roberts
• DOI: 10.1177/0275074018754888
• Published date: 01 January 2019
• Date: 01 January 2019
• Subject Matter: Articles

https://doi.org/10.1177/0275074018754888

American Review of Public Administration

2019, Vol. 49(1) 3 –20

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DOI: 10.1177/0275074018754888

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Article

Introduction

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

research-article2018

1James Madison University, Harrisonburg, VA, USA

Corresponding Author:

Robert Roberts, Department of Political Science, James Madison

University, Miller Hall, Harrisonburg, VA 22801, USA.

Email: robertrn@jmu.edu

The Judicial Response to the Presidential

Polarization of the Administrative State

Robert Roberts1

Abstract

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.

Keywords

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

expertise.

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

efficiently.

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.