Meditations on our post-Slaughter world continue to populate the field’s SSRN feed, and today’s Ad Law Reading Room brings you a double header. The first entry is “‘Because The President Said So’: Agency Reason Giving and Presidential Statements of Will,” by Nina A. Mendelson, which is forthcoming in the University of Pennsylvania Law Review. Here is the abstract:

Reason giving has long been understood to legitimate administrative agency actions by assuring legal, nonarbitrary, stable, and well-considered decisions. It is core to the Administrative Procedure Act’s process and judicial review provisions. But the obligation to give reasons is receiving a challenge from the political accountability side, as executive orders skyrocket and the Supreme Court moves towards unitary executive theory in decisions such as Trump v. Slaughter and Seila Law v. CFPB. In striking down independent agencies under Article II, the Court has emphasized that political accountability of agencies to the President is critical. Both the President and executive agencies have now gone further to claim regularly that relying on “the President said so” is not just critical, but sufficient to legitimate an agency decision, and no further reasons need be given.

This Article seeks to make four contributions to the controversy. I argue first that although reliance on presidential directives can sometimes usefully supplement agency reasoning, as a matter of statutory interpretation, “the President said so” cannot undercut the reasoning and analytical requirements that would otherwise apply to an agency action. Presidential statements, unlike statutes, generally cannot change the legal regime. Second, I argue that, special circumstances aside, the APA continues to apply when a statute delegates power directly to the President, because the best interpretation of such run-of-the-mill statutes is that Congress anticipated that agencies would act and the usual administrative law framework would apply. Third, and relatedly, the article argues that Franklin v. Massachusetts, a decision that presidential transmission of census data to Congress was exempt from the APA, applies properly only to exceptional statutory delegations to the President. Finally, the Article argues from a normative frame that not only are reasons critical to ensure well-considered nonarbitrary agency policy, they are also critical for democratic accountability. Existing literature focuses on deliberative democracy, but reasons are essential even for non-deliberating voters to cast a meaningful vote and thus to assure political accountability.

The second entry is “Defining the Scope of Presidential Directive Authority in a World of Unfettered Removal Power,” by Jodi L. Short, which is forthcoming in Building Democratic Capacity: Essays on Administrative Law’s Futures (Blake Emerson, Joshua Macey, Sabeel Rahman & Bijal Shah eds., Cambridge Univ. Press). Here is the abstract:

Over the last several decades, Presidents have used their authority to direct the actions of administrative agencies in increasingly bold and pointed ways, sometimes in ways that violate statutory or constitutional law. Given the significant power delegated by statute to executive-branch agencies, it is not surprising that presidents would seek to direct agencies’ work. This raises important questions about the scope of their authority to do so—in other words, the scope of presidential directive authority. While there was vigorous debate in the early twenty-first century about whether the President possesses the power to direct the exercise of authority delegated by statute to other executive-branch officials, there is now little question that the President enjoys some amount of directive authority. The discussion must turn urgently to the scope and limits of that authority.

Recent Supreme Court case law giving the President the unfettered authority to remove an increasing number of executive-branch officials raises the stakes of that discussion. The President now has the judicially unreviewable prerogative to fire the head of just about any agency in the executive branch for failing to follow a presidential directive to violate the law. Indeed, in his second term, President Trump has tested these limits, issuing directives that order agencies to violate clear statutory requirements and established constitutional law.

Courts have struggled to define their role in policing these transgressions. Eager to avoid confrontation with the executive branch, courts have often dodged or elided questions about the legality of presidential directives. That approach is dangerous and untenable in the face of rampant executive branch overreach. This chapter provides a conceptual framework for understanding presidential directive authority and its place in separation of powers jurisprudence.

Both articles take up the president’s authority to direct agency officials with respect to particular matters, but they do so from different angles. Mendelson is primarily concerned with directives’ effect on administrative reason-giving requirements, taking as her jumping off point the Trump administration’s position that when the president orders something, “the president said so” is all an agency need say to justify its action. The article provides both nuanced doctrinal analysis—most prominently in its treatment of Franklin v. Massachusetts—as well as much of interest for those whose tastes run more in the direction of democratic theory.

While also taking up the question of reviewability, Short’s essay is focused to a greater degree on how courts should go about determining the substantive scope of the president’s directive authority. Short helpfully catalogues the different circumstances in which claims to directive authority might arise, argues that courts have been too broadbrush when it comes to presidential assertions of such authority, and persuasively urges a more context-sensitive approach.

Both pieces are well worth checking out!

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.