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The Supreme Court has amplified Article II appointments and removal power over formal administrative adjudication. Both those in favor of and against this trend share assumptions about presidential influence over administrative power. For instance, both assume administrative discretion is at odds with political control. More specifically, unitary executive theorists view presidentialism as a way to limit agencies’ discretionary power, while those in favor of an autonomous administrative state believe that the civil service exercises expansive discretion because it is generally insulated from political control. In addition, this conversation overlooks the large expanse of informal administrative adjudication and enforcement decisions, which are neither conditioned by constitutional requirements nor anchored by consistent procedural requirements specified by the Administrative Procedure Act.

Building on these observations, this Article explores and demonstrates how administrative discretion, particularly within informal administrative contexts, is a significant mechanism for advancing presidential influence and control over agency action. It refers to this mechanism as the exercise of presidential administrative discretion. This paradigm is illustrated by case studies arising in regulatory areas including education, food safety, and immigration. Sometimes, informal administrative adjudication is shaped by presidential administration. Other times, White House directives to agencies, or pressure from an overarching presidential agenda, can result in particularized prosecutorial and enforcement discretion.

This Article argues that these examples shed light on under-valued aspects of the relationship between presidential and administrative authority. First, these dynamics show that unitary executive theory and anti-administrativism are, in fact, at odds, because presidents leverage administrative authority and “autonomy” to meet their goals. Second, these dynamics suggest that the civil service is less insulated from the president than is generally assumed. The result of all this, put simply, is that the bureaucracy may be more of a force-multiplier for presidential goals rather than an impediment to them. In theory, this ensures the professional implementation of lawful policies that also reflect the priorities of different presidential administrations over time. Sometimes, this leads to administration that supports the interests of a vulnerable public. More recently, presidential administrative discretion has reduced access to fair process and lawful administrative outcomes.

Lastly, this Article suggests alterations in longstanding, conventional frameworks of political control over agency action to shape and contain presidential administrative discretion. First, agencies might counterbalance presidential administrative discretion by democratizing administrative procedure. This could be accomplished by engaging the internal separation of powers to leverage a dissenting civil service, ramping up quality assurance within agencies, and controversially—involving public stakeholders in administrative adjudication. Second, the co-equal branches could check the executive. Indeed, the legislature could define informal procedure with greater nuance, through oversight and legislation, to ensure it is not wholly at the mercy of presidential administrative discretion. Also, the Court’s skepticism toward administrative discretion and its role in preserving due process could serve to constrain problematic forms of presidential administrative discretion. The judiciary could also stave off executive infringement on legislative and judicial authority resulting from presidential administrative discretion.

In Response to: Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers

This Essay responds to Jon Michaels’s argument for a form of agency fragmentation called the new “administrative separation of powers,” a structure consisting of three fundamental sets of actors: agency heads, civil society, and the civil service. According to Michaels, his thought-provoking idea has roots in the traditional separation of powers among the branches of government. Michaels also claims that these three intra-agency actors are able to maintain a “self-regulating ecosystem” that allows agencies to improve their functions similarly to the way that the constitutional checks and balances sharpen the operation of the political branches.

For Michaels’s tripartite agency to be legitimately characterized as a form of separation of powers, however, there must be a meaningful connection between the two frameworks. As of now, the analogy is hindered by some essentials aspects in which Michaels’s agency players do not reflect the three branches of government. These include, for example, each administrative stakeholder’s relative inability to protect its own jurisdiction from encroachment by the others and constraints on agencies’ capacity to further rule of law values. These limitations render constitutional separation of powers principles less valuable to the development of Michaels’s theory, because they reduce the extent to which the tripartite agency might, in fact, behave like the political branches.

In addition, both the use of Michaels’s model for executive-checking purposes and the ultimate success of his theory’s overall execution depend on the extent to which they
are grounded in the concrete characteristics of agencies and the polity. Additional substantiation of Michaels’s tripartite could be furthered by analysis of the diversity
among agency heads and civil servants across the executive branch and of the weaknesses in civil society’s ability to leverage its interests vis-à-vis government officials. Those seeking to realize the promise of Michaels’s model should also consider the impact of differences in administrative, political and societal structures, orientations and incentives on Michaels’s framework.

Bijal Shah, Toward An Intra-Agency Separation of Powers​, 92 N.Y.U. L. Rev. Online 101 (2017).