Controlling Presidential Control
Kathryn A. Watts*
Presidents Reagan and 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 decisionmaking 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. After examining three different case studies and discussing the inadequacies of expertise forcing, this Article provides a roadmap for how a wide range of nonconstitutional administrative law doctrines could be coordinated to enhance the positive attributes and restrain the negative attributes of presidential control. The Article gives attention to doctrinal tools, such as judicial review doctrines and notice-and-comment procedures, falling into three general categories: statutorily facing rules; transparency-enhancing mechanisms; and process-forcing rules. If used in a coordinated fashion, doctrinal tools falling into each of these three categories provide a powerful and much-needed framework for responding to the new realities of presidential control and ultimately controlling— without unnecessarily constraining—presidential control.
* Garvey Schubert Barer Professor of Law, University of Washington School of Law. Many thanks to Courtney Schirr and Mary Whisner for excellent scholarship support. Also, I am grateful for the helpful comments I received from Alex Lee, Clark Lombardi, Lisa Manheim, Liz Porter, Sallie Sanford, Peter Strauss, Lea Vaughn, Amy Wildermuth, David Ziff, and participants in the University of Washington School of Law’s Faculty Colloquium where an earlier version of this project was presented.