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| Pix Credit NYT |
Mr. Trump signed an executive order effectively putting back on the table the issue of the extent of Presidential authority over the administrative apparatus of the State. The Executive Order, "Ensuring Accountability for All Agencies" is grounded on the idea that past practices effectively amounted to an acquiesce of a practice that is neither required nor perhaps permitted under the Constitution ("previous administrations have allowed so-called “independent regulatory
agencies” to operate with minimal Presidential supervision. These
regulatory agencies currently exercise substantial executive authority
without sufficient accountability to the President, and through him, to
the American people" §1).
The order requires independent agencies to submit their proposed regulations to the White House for review, asserts a power to block such agencies from spending funds on projects or efforts that conflict with presidential priorities, and declares that they must accept the president’s and the Justice Department’s interpretation of the law as binding. (NYT)
In the American Republic old disagreement never die, they are just shunted off into the judicial sphere and choices protected behind the paywall narratives of the role of the courts and the rule of law--unless that is inconvenient (e.g., Dred Scott). Or they are left to academics and intellectuals to stir the pot, usually over decades, from out of which it might be possible either to pierce the judicial paywall (the usual and preferred consensus method) or challenged directly, crudely, and in the political spheres. The issue of the "unitary executive" is one that as been a issue from the time of the founding of the Republic, but in its current form is aligned to the development of administrative bureaucracies that reached "escape velocity" with the needs of a response to the Great Depression of 1929. The arguments that eventually coalesced around the so-called unitary executive theory lost--and they lost decisively it appeared in the mid 1930s. But they returned first as an intellectual and then as a jurisprudential exercise with greater resonance from the time of the first Administration of Ronald Reagan. In that period the arguments were elegant and largely ignored except for polite debate that found its way into American Law Reviews--which is a fate akin to oblivion (eg here). But with the election of Mr. Trump the issue has again exploded--and it has exploded because in Mr. Trump those who find value in this theory and its implementation found a political risk taker bold enough to make the issue unavoidable.
Here is a nice summary:
One of the most long-standing complaints of American conservatives concerns the emergence, growth, and spreading mandates of the so-called “administrative state.” The Trump administration framed this in a typically crude way as the malign “deep state” of unelected bureaucrats doing the bidding of shadowy elites against the interests of ordinary Americans. Trump and his advisors like Steve Bannon vowed that they would smash the deep state as their first order of business.
This latest salvo simply echoes conservative critiques that multiplied as the New Deal got under way in the 1930s and created the plethora of administrative agencies like the National Labor Relations Board and the Securities and Exchange Commission. A variety of charges were laid against these federal agencies, beginning with the idea that the U.S. Constitution did not permit delegation of authority from Congress to unelected bureaucrats, and that these agencies violated the Constitution’s principle of separated powers. One of the drivers of Franklin Roosevelt’s court-packing effort was the resistance of the Supreme Court at the time to these expansions of executive power within the federal government. (The Administrative State)
There is much more to this than this bald recounting. And that is what makes the current action all the more interesting. It brings to a head--again--the debates that were quite vigorous engaged in in the 1930s but now in the shadow of a history of the consequences of the choices made then. At its core are many fundamental issues one of which particularly resonates: In a government apparatus the generative legitimacy and authority of which is grounded on a principle of separation of powers (however they might be interpreted and reinterpreted by the courts), how does one deal with the necessity, and perhaps the inevitability, of the organs of administration the essence of which is entirely the negation of separation of powers principles (combining in the common parlance quasi-judicial, executive and legislative authority) within organs of government that are not directly connected to the related theory of representative democracy that posits some sort of direct connection (again within a range of judicial (re)constructions) connection ought to exist between political officials and the people who elected them
There are all sorts of theories that have been elaborated to make people feel better about the attenuation of the relationship between government officials and the people, and to rationalize the constitution of organs of government that invert the principle of separation of powers within a document the core principle of which is separation. And several theories that are meant to challenge the dominant constitutional cognitive cages within which the American political-economic model has operated, more or less efficiently, since the 1930s. Many of these over the last century have even attained something like quasi-constitutional adherence, though that too puts to the question the issue of the extent to which a constitutional court ought to be able to construct/construe ac constitutional text--again for which many theories have been advanced (some embraced by ruling elites) that reduce the urgency or even the legitimacy of the question or of a response other than--leave it alone.
All of these issues have, if the players are smart and clever enough--been put back in play. The Republic was built to permit and perhaps invite those sorts of fundamental discussion by the people as they choose to ways and principles under which they would consent to be governed for the public good and the defense of the Republic. And it is up to those who are heirs to the current approaches and principles to defend them and use them in ways that advance whatever arguments they may offer in the defense of the system constructed. Thus, that play includes those who would undo the 1930's resolution of crisis, those who have their sights set on the scope of judicial intervention in constitutional interpretation, and those who, much more ambitiously, wish to revisit the American political-economic model itself. And it includes both the defenders of the contemporary system and its mechanics, as well as those who would further develop its trajectories toward more refined constitutional managerial.
All is fair I suppose given the political character of the Republic adopted by the people in the late 18th century. But fair is fair--and these are the sorts of questions that ought either to be routed through the modalities of textual amendment of the constitutional document, or otherwise permit a broad discussion. It would be a pity is these important debates remain nothing more than a bauble to be tossed around by elites or drivers or hierarchs none of whom have any mandate to undertake that task. Ironically, all of these issues may well be decided by the US Supreme Court, effectively conforming the structures of the post 1930s order, even if the substance of the decision appears to undo one of its signature innovations. Reporting here, here, here, here. and here.
The test of the Executive Order follows. It may be accessed HERE.
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:
Section 1. Policy and Purpose. The Constitution vests all executive power in the President and charges him with faithfully executing the laws. Since it would be impossible for the President to single-handedly perform all the executive business of the Federal Government, the Constitution also provides for subordinate officers to assist the President in his executive duties. In the exercise of their often-considerable authority, these executive branch officials remain subject to the President’s ongoing supervision and control. The President in turn is regularly elected by and accountable to the American people. This is one of the structural safeguards, along with the separation of powers between the executive and legislative branches, regular elections for the Congress, and an independent judiciary whose judges are appointed by the President by and with the advice and consent of the Senate, by which the Framers created a Government accountable to the American people.
However, previous administrations have allowed so-called “independent regulatory agencies” to operate with minimal Presidential supervision. These regulatory agencies currently exercise substantial executive authority without sufficient accountability to the President, and through him, to the American people. Moreover, these regulatory agencies have been permitted to promulgate significant regulations without review by the President.
These practices undermine such regulatory agencies’ accountability to the American people and prevent a unified and coherent execution of Federal law. For the Federal Government to be truly accountable to the American people, officials who wield vast executive power must be supervised and controlled by the people’s elected President.
Therefore, in order to improve the administration of the executive branch and to increase regulatory officials’ accountability to the American people, it shall be the policy of the executive branch to ensure Presidential supervision and control of the entire executive branch. Moreover, all executive departments and agencies, including so-called independent agencies, shall submit for review all proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs (OIRA) within the Executive Office of the President before publication in the Federal Register.
Sec. 2. Definitions. For the purposes of this order:
(a) The term “employees” shall have the meaning given that term in section 2105 of title 5, United States Code.
(b) The term “independent regulatory agency” shall have the meaning given that term in section 3502(5) of title 44, United States Code. This order shall not apply to the Board of Governors of the Federal Reserve System or to the Federal Open Market Committee in its conduct of monetary policy. This order shall apply to the Board of Governors of the Federal Reserve System only in connection with its conduct and authorities directly related to its supervision and regulation of financial institutions.
(c) The term “independent regulatory agency chairman” shall mean, with regard to a multi-member independent regulatory agency, the chairman of such agency, and shall mean, with regard to a single-headed independent regulatory agency, such agency’s chairman, director, or other presiding officer.
(d) The term “head” of an independent regulatory agency shall mean those appointed to supervise independent regulatory agencies and in whom the agencies’ authorities are generally vested, encompassing the chairman, director, or other presiding officer, and, as applicable, other members, commissioners, or similar such officials with responsibility for supervising such agencies.
Sec. 3. OIRA Review of Agency Regulations. (a) Section 3(b) of Executive Order 12866 of September 30, 1993 (“Regulatory Planning and Review”), as amended, is hereby amended to read as follows:
“(b) “Agency,” unless otherwise indicated, means any authority of the United States that is an “agency” under 44 U.S.C. 3502(1), and shall also include the Federal Election Commission. This order shall not apply to the Board of Governors of the Federal Reserve System or to the Federal Open Market Committee in its conduct of monetary policy. This order shall apply to the Board of Governors of the Federal Reserve System only in connection with its conduct and authorities directly related to its supervision and regulation of financial institutions.”.
(b) The Director of the Office of Management and Budget (OMB) shall provide guidance on implementation of this order to the heads of executive departments and agencies newly submitting regulatory actions under section 3(b) of Executive Order 12866. Agency submissions by independent regulatory agencies under such section shall commence within the earlier of 60 days from the date of this order, or completion of such implementation guidance.
Sec. 4. Performance Standards and Management Objectives. The Director of OMB shall establish performance standards and management objectives for independent agency heads, as appropriate and consistent with applicable law, and report periodically to the President on their performance and efficiency in attaining such standards and objectives.
Sec. 5. Apportionments for Independent Regulatory Agencies. The Director of OMB shall, on an ongoing basis:
(a) review independent regulatory agencies’ obligations for consistency with the President’s policies and priorities; and
(b) consult with independent regulatory agency chairmen and adjust such agencies’ apportionments by activity, function, project, or object, as necessary and appropriate, to advance the President’s policies and priorities. Such adjustments to apportionments may prohibit independent regulatory agencies from expending appropriations on particular activities, functions, projects, or objects, so long as such restrictions are consistent with law.
Sec. 6. Additional Consultation with the Executive Office of the President. (a) Subject to subsection (b), independent regulatory agency chairmen shall regularly consult with and coordinate policies and priorities with the directors of OMB, the White House Domestic Policy Council, and the White House National Economic Council.
(b) The heads of independent regulatory agencies shall establish a position of White House Liaison in their respective agencies. Such position shall be in grade 15 of the General Schedule and shall be placed in Schedule C of the excepted service.
(c) Independent regulatory agency chairmen shall submit agency strategic plans developed pursuant to the Government Performance and Results Act of 1993 to the Director of OMB for clearance prior to finalization.
Sec. 7. Rules of Conduct Guiding Federal Employees’ Interpretation of the Law. The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General.
Sec. 8. General Provisions. (a) If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its provisions to any other persons or circumstances shall not be affected thereby.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
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