Controlling Presidential Control

Abstract

Presidents Ronald Reagan and Bill Clinton laid the foundation for strong presidential control over the administrative state, institutionalizing White House review of agency regulations. Presidential control, however, did not stop there. To the contrary, it has evolved and deepened during the presidencies of George W. Bush and Barack Obama. Indeed, President Obama’s efforts to control agency action have dominated the headlines in recent months, touching on everything from immigration to drones to net neutrality.

Despite the entrenchment of presidential control over the modern regulatory state, administrative law has yet to adapt. To date, the most pervasive response both inside and outside the courts has been a reflexive form of “expertise forcing,” which simplistically views presidential influence as “bad” and technocratic decision-making as “good.” In narrowly focusing on the negative aspects of presidential control, expertise forcing overlooks key benefits that flow from presidential control — namely, political accountability and regulatory coherence. It also ignores the fact that presidential control is here to stay. A more realistic and nuanced response to presidential control is needed. This Article is the first to provide a roadmap for how a wide range of non-constitutional administrative law doctrines can be coordinated to enhance the positive attributes and restrain the negative attributes of presidential control. It identifies three relevant doctrinal categories: statutorily facing rules; transparency-enhancing mechanisms; and process-forcing rules. Doctrinal tools falling into each of these three categories, if used in a coordinated fashion, provide a powerful and much needed framework for responding to the new realities of presidential control and ultimately controlling — without unnecessarily constraining — presidential control.

Keywords: administrative law, presidential control, Presidents, expertise, science, politics, rulemaking, Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), FDA, Plan B, EPA, ozone standards, FCC, net neutrality, presidential directives