Controlling Presidential Control

IntroductionIn 2001, then-Professor and now Supreme Court Justice Elena Kagan published a foundational article that documented a dramatic rise in presidential control over the regulatory state.1 Kagan argued that a "distinctive form of administration and administrative control," which she called "presidential administration," emerged under Ronald Reagan and surged during Bill Clinton's presidency.2 Kagan saw the emergence of this strong form of presidential administration as a positive development because, by her account, presidential control promotes political accountability and transparency,3 and it furthers effective and coherent regulatory policy.4 Yet, when she published her article in 2001,5 Kagan noted that it was unclear whether future developments might raise new problems and challenge old assumptions about presidential administration.6This Article picks up where Kagan left off nearly fifteen years ago, demonstrating that presidential control has deepened during the most recent two presidencies and confirming Kagan's intuition that a reassessment of presidential control would be necessary. As this Article shows, both Republican President George W. Bush and Democratic President Barack Obama have exerted significant control over the regulatory state. Bush often did so by relying on various forms of covert command. The Bush administration, for example, demonstrated a behind-the-scenes willingness to influence agencies' scientific findings.7 In addition, Bush relied heavily on the Office of Management and Budget (OMB), which reviews executive agencies' proposed and final regulations as well as their regulatory plans, to exert aggressive and often-veiled White House control over agency rules.8 Obama likewise has relied on the somewhat secretive OMB review process.9 Obama, however-taking a cue from Clinton-has also relied heavily on overt command, trying to turn the regulatory state into an extension of his own political agenda by frequently issuing written directives and publicly claiming ownership of regulatory policy.10 Indeed, many of Obama's very public efforts to direct the regulatory state have been splashed across the headlines in recent months.11 From net neutrality12 to drones13 to immigration,14 Obama has openly and aggressively sought to influence or outright control regulatory policy, frequently harnessing social media to maximize the impact of his efforts.15Both Bush's and Obama's efforts to steer regulatory policy highlight just how complex presidential control has become. Not only does it operate in covert and overt ways, but it is exerted through a variety of different tools. Some of these tools, such as presidential directives and speeches made readily available via social media, can help to further key values, including political accountability and regulatory coherence. Yet other tools, including more veiled OMB review and behind-closed-door communications, may undermine transparency and the rule of law, taint agency science, and cast doubt on the legitimacy of agencies' decisions.As of now, administrative law has failed to take the complexity and variety of presidential control into account. Indeed, administrative law doctrine has not adapted to presidential control in any meaningful way. This Article aims to move administrative law forward in this area, exploring how a variety of nonconstitutional administrative law doctrines can and should respond to the new status quo.16 While numerous scholars have weighed in on long-standing debates about the constitutionality of presidential attempts to control the executive branch17 and whether the Constitution demands that the President have authority over all executive actors,18 scholars have given little attention to analyzing how nonconstitutional administrative law principles could be used to respond to the new realities of presidential control.19 This Article represents the first attempt to set forth a legal framework for how a variety of nonconstitutional administrative law doctrines can be coordinated to enhance the positive and restrain the negative aspects of presidential control. …