The Making of Presidential Administration

This Article offers a new history of the rise of presidential administration. Instead of presenting, as the standard account often does, the recent past of presidential administration as a smooth working out of a particular notion of administrative governance, we turn our attention to the political, intellectual, and legal battles in which it was forged.²⁴ We show how the passage to presidential administration was deeply contested, both institutionally and intellectually, during the period from 1975 to 2000, with special emphasis on the Reagan Administration. We argue that presidential administration’s triumph required the demise of a prior form of governance where Congress played a larger role and that presidential administration’s entrenchment was the product of a bipartisan consensus about the dangers of government interventions in markets and an ever-expanding regulatory state.

Our account unfolds in four parts. Part I examines the 1970s and its antecedents. During that time, administration under law prevailed. Presidents recognized the nineteenth-century “primacy of Congress’s statutes.”²⁵ Accordingly, Congress and the executive branch worked together to build out “the managerial presidency.”²⁶ Their goal was to make government efficacious and accountable through statutory enactments that granted the President specific powers.

This regime simultaneously empowered and constrained the presidency. It empowered the Executive, since Congress regularly enacted new laws that gave the President additional authority over administrative agencies. But it kept the Executive bounded, since statutory grants were often temporary, conditioned on a legislative veto, or otherwise limited. Congress, for its part, continued to use legislation and oversight to carefully influence administrative agencies and check the President’s administrative powers.

Part II turns to the Reagan years. Reagan’s immediate predecessors chafed against legislative constraints. Administration under law prevented the President from taking aggressive administrative action without congressional cooperation. This limited the President’s ability to implement deregulatory policies, as Congress proved more hostile to deregulation (and more committed to the New Deal order) than the White House.

Reagan changed the managerial presidency from a collaborative executive-legislative statutory project into a White House prerogative. The key break came early, when Reagan issued Executive Order 12,291²⁷ (E.O. 12,291), invoking the Constitution to justify executive direction of certain aspects of agency rulemaking. Reagan’s lawyers claimed that Article II empowered the President not only to request information from agencies but also to prevent them from promulgating significant rules without White House sign-off.²⁸

To contemporaries in Congress and in the legal academy, Reagan’s arguments were baseless. Congressional witnesses and scholars catalog-ued the many problems: Reagan had usurped legislative authority in violation of the separation of powers; amended the Administrative Procedure Act²⁹ (APA) without an Act of Congress; and presumed to edit, by mere executive decree, the enabling acts of every nonindependent agency in the federal government.³⁰

The outcry proved in vain. Part III tells the story of how the opposition was quieted and how a new constitutional baseline was constructed. In part, legislative resistance to Reagan’s assertions was undercut by the Supreme Court. In a series of decisions, including INS v. Chadha³¹ and Bowsher v. Synar,³² the Justices added new constitutional limits to Congress’s ability to direct administrative lawmaking, indirectly bolstering the President’s case for control.

Meanwhile, legal academics developed more expansive visions of executive power. Building on Justice Antonin Scalia’s jurisprudence, especially his dissents in two executive power cases, Morrison v. Olson³³ and Mistretta v. United States,³⁴ a cohort of law professors turned the Reagan Administration’s skeletal constitutional claims into a robust theory of presidential power. Professors Steven Calabresi and Saikrishna Prakash became the most prominent members of a group of originalist academics who championed strong claims of executive control.³⁵ In an ironic twist, they appropriated the separation of powers arguments wielded by the defenders of administration under law to justify their competing vision of the presidency. And they revived dicta from Myers v. United States³⁶ that had been largely left for dead following the Court’s unanimous opinion in Humphrey’s Executor v. United States.³⁷

To the extent that the originalists’ most prominent liberal opponents contested the Unitary Executive, they did so less on substance than on method, rejecting originalism for functionalism.³⁸ By the mid-1990s, the scholarly imagination on presidential control over the administrative state had shifted; administration under law had faded³⁹ and the relevant alternatives became presidential administration (an Article II power in the President to superintend agencies in the absence of limits set by statute) and the Unitary Executive (a power in the President to superintend agencies not subject to legislative constraint).

Part IV describes the consolidation of presidential administration in theory and practice. It recounts the ideological and political context in which Clinton entrenched presidential administration as a mode of governance. And it explores how Kagan and her peers legitimated it intellectually. When Reagan announced his executive order in 1981, Democratic party elites resisted what they saw as a Republican power grab. But by the 1990s, the Reagan Revolution had reoriented the Democratic party itself.⁴⁰ Bill Clinton won the White House in 1992 not by repudiating Reagan but by promising a kind of continuity. The self-proclaimed New Democrats would adopt Reaganite tools — principally Executive Order 12,866⁴¹ (E.O. 12,866) — and a Reaganite orientation toward the regulatory state, reducing its scope and ambition. For an observer at the start of the 2000s, presidential administration appeared intellectually triumphant and politically secure.

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