In a well researched study for the Cato Institute, William Yeatman explains how the president’s office, through executive orders, became such a powerful force and what should be done to rein in that power. In his introduction, Yeatman explains the problem, writing:
As the Supreme Court has observed, “the very idea that one man may be compelled to hold … any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails.“1 Despite the intolerance in the Constitution for arbitrary government, an important body of law exists that is marked by conspicuous abuses of discretion—namely, statutes that delegate regulatory authority to the president.
Most of the time, Congress grants regulatory power to subject‐specific agencies—the Environmental Protection Agency, Federal Trade Commission, Food and Drug Administration, and so on—in what is known as a “delegation” of legislative authority.2 For more than a century, these delegations have accumulated into what is known as the “administrative state.”3 These grants of legislative authority occupy thousands of pages in the U.S. Code and, ultimately, have engendered millions of pages of regulatory activity in the Federal Register.4
Sometimes, however, Congress delegates regulatory authority directly to the president. Although there has been no comprehensive accounting of the president’s statutory powers, these delegations often—but not always—occur in areas over which the executive and legislative branches share express or implied constitutional authority, such as foreign policy, immigration, and national defense.
For example, Congress has long empowered the president to act in the realm of international relations.5 Such delegations are especially prevalent in the regulation of trade.6 With this authority, President Biden and former president Donald Trump have taxed more than $350 billion of imports, resulting in roughly $51 billion of annual consumer costs, according to a running tally by the American Action Forum.7
Professor Amy Stein has identified more than 60 laws that empower the president in the name of “national security,” including the statutory basis for an ongoing ban on Huawei technology and an investigation of the web app TikTok.8 Another example of a “national security” delegation to the president is the Defense Production Act, which authorizes central planning of critical supply chains.9
In immigration policy, the president’s broad statutory powers include the authority to exclude entire classes of immigrants if the president determines their entry “would be detrimental to the interests of the United States.”10 Trump acted on this provision in issuing a series of discriminatory “travel bans” and a bar on immigrants entering without health insurance.11 Through a different delegation of authority, Trump “essentially ended” refugee programs.12
Under the National Emergencies Act, the president can unlock 136 distinct regulatory powers by declaring a “national emergency.”13 These emergency powers include the authority to suspend federal oil leases, reshuffle billions of dollars of congressional appropriations, and take control of the telecommunications infrastructure.14
In the executive branch, therefore, Congress delegates regulatory authority to agencies and the president. In some instances, the powers wielded by these respective delegatees are indistinguishable. For example, the Interior Department and the president have practically identical authority to regulate public lands.15 And both the president and the Commerce Department possess overlapping tariff‐making authority.16 Despite the functional equivalence of these two categories of delegated authority, they result in two drastically different approaches to judicial review. When agencies execute the law, their actions are subject to thorough oversight under the Administrative Procedure Act (APA).17 But when the president exercises a congressional delegation of authority, courts don’t check for reasonableness.
As a result, the president is effectively immune from meaningful judicial oversight. Because courts don’t check for abuses of discretion, presidents can get away with obvious abuses. This unfortunate status quo stems from two Supreme Court cases that were decided almost three decades ago—one that exempted the president from the APA and another that has been interpreted by lower courts to close off meaningful review outside of the APA.18 Since the Court adopted its hands‐off approach, presidents have pushed the envelope of their statutory powers through increasingly expansive—and seemingly arbitrary—interpretations of their own statutory authority.
This paper contributes to a small body of scholarship on the absence of judicial checks for the president’s statutory powers. Professor Kevin Stack first drew attention to the problem in a series of influential articles.19 Building on Stack’s work, Professor Kathryn Kovacs has argued that the Supreme Court should reverse its 1992 decision that placed the president’s policymaking beyond the APA’s reach.20 This paper complements their work in two ways. First, by providing contemporary case studies of presidential power run amok, this paper lends weight to the need for reform. Second, this paper sets forth a framework for reviewing the president’s statutory powers outside the APA. Where before scholars have called for some sort of reasonableness review, this paper proposes a framework to guide such review.
The courts protect individual liberties from arbitrary restraints. As Justice Neil Gorsuch recently averred, “This Court’s duty is to the rule of law and the search for truth.”150 But when it comes to the president’s statutory powers, the Court is failing this duty by blinding itself to the evident truth of unreasonable presidential decisionmaking.
Under the Constitution, no person can be above the law, even the president. No individual should be left at the mercy of unreviewable abuses of discretion backed by the state’s power. “The supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied,” in the words of Justice Louis D. Brandeis.151 At present, however, the “supremacy of law” vanishes whenever the president acts as an agent of Congress. Instead, the law becomes whatever the president says it is.
Enough is enough. The Supreme Court must end the president’s leeway to be unreasonable.
Read Yeatman’s entire study here.
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