Jed H. Shugerman (Boston University School of Law) & Jodi L. Short (UC Law, San Francisco) have posted Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law (58 pages) on SSRN. Here is the abstract:
A contradiction about the role of the president has emerged between the Roberts Court’s Article II jurisprudence and its Major Questions Doctrine jurisprudence. In its appointment and removal decisions, the Roberts Court claims that the president is the “most democratic and politically accountable official in Government” because the president is “directly accountable to the people through regular elections,” an audacious new interpretation of Article II; and it argues that tight presidential control of agency officials lends democratic legitimacy to the administrative state. We identify these twin arguments about the “directly accountable president” and the “chain of dependence” as the foundation of “Roberts Court presidentialism.”
Meanwhile, each of the policies in dispute in the Major Questions cases over the past three decades are the product of the “directly accountable president” and the “chain of dependence” in action. This Article documents seven MQD cases, from 1990s tobacco regulation to the recent student debt waiver: presidents campaigning on the policy, directing agencies to adopt the policy, and then publicly taking credit and responsibility for the policy. Nevertheless, the Supreme Court has almost always ignored the presidents’ role in Major Questions policies and has instead blamed the agency for overstepping its delegated power. The erasure of presidents serves the Court’s narrative of blaming “unaccountable bureaucrats,” rather than either granting the policy more democratic legitimacy for its presidential backing or holding the president who ordered the policy accountable for overstepping the separation of powers. The erasure also suggests the Court has an underlying ambivalence or anxiety about the problems of presidential power, which Roberts Court presidentialism has exacerbated. Ironies abound: relying on a theory of presidential accountability, but then retreating from holding presidents accountable; unaccountable judges expanding judicial power based on a narrative of “unaccountable bureaucrats.”
The rule of law requires consistent reasoning. We suggest five doctrinal opportunities to resolve the contradictions between the Roberts Court’s Article II presidentialism and its Major Questions’ erasures of presidents: 1) SEC v. Jarkesy on the removal of administrative law judges; 2) future MQD cases crediting or blaming presidents; 3) the applicability of MQD to presidents; 4) the future of Chevron deference; and 5) in applying the non-delegation doctrine. The Roberts Court can untangle the “chain of dependence” with more consistency in either direction, but perhaps the most important lessons from these contradictions are for judicial restraint and of acknowledging the costs of direct presidential power, not just the benefits.
This is an interesting paper that I saw presented at a recent conference. I agree with its first main claim. The major questions doctrine is mostly about limiting presidential power by limiting extravagant presidential claims of delegation. That the claims are technically made by executive agencies is incidental. The agencies are acting at the President's direction. Put another way, this is principally a matter of separation of powers, not of administrative law. (Of course, if the aggressive claims of delegation were being made by independent agencies, that would be even worse, but in the recent major questions cases that hasn't been the situation.) The Court's focus on agency overreach, rather than presidential overreach, in these cases is — as the article says — odd.
I disagree with the paper's second main claim. There's nothing inconsistent about supporting both the major questions doctrine and the unitary executive. Separation of powers theory says that each branch should be powerful within its assigned role but not overstep its assigned role. The unitary executive assures that the President has full control of the executive powers. The major questions doctrine guards against aggressive claims by the executive to legislative powers. The paper's misstep is to view the doctrines through a pro-executive versus anti-executive lens. It's not inconsistent to favor the executive sometimes and not others.
Posted at 6:33 AM