Legislation that Isn't - Attending to Rulemaking's Democracy Deficit

Abstract

Written in celebration of Philip Frickey’s many contributions to the legislation literature, this essay is a further effort to understand the President’s relationship to administrative agency rulemaking. On the one hand, the President’s executive authority precludes the possibility that he is to be a lawmaker (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (opinion of Black, J.)); on the other, we unhesitatingly embrace agency rulemaking - as, indeed, as a practical matter, we must. On the one hand, “where the heads of departments are ... to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear, than that their acts are only politically examinable” (Marbury v. Madison, 5 U.S. 137, 165-66 (1803); on the other, courts tolerate agency authority to adopt regulations if and only if there exist “intelligible principles” by which their legality can be judicially tested. The strong unitary presidency positions so recently in vogue underscore the tensions evident here. The enduring problem for a democracy that this essay addresses is the legitimacy of permitting unelected officials to create binding legal texts, that if valid have the force and effect of statutes, without conferring levels of power on a single individual or institution that it should find insupportable.

Keywords: rulemaking, regulation, President, Unitary Presidency, delegation doctrine, discretion, Marbury, Youngstown