Notice & Comment

Administration Administration, by Shane Pennington

*This is the thirteenth post in a series on Andrew Rudalevige’s new book, By Executive Order: Bureaucratic Management and the Limits of Presidential Power. For other posts in the series, click here.

By Executive Order is the culmination of Andrew Rudalevige’s exhaustive, multi-year study of presidential decision making. His excavation and examination of the long-forgotten backstories of hundreds of executive orders and hundreds more that might have been demonstrates that federal agencies are responsible for most of what passes as presidential action. (page 9).

This agency “sway” upends common assumptions about the institutional relationship between the president and the administrative state. Rudalevige demonstrates (convincingly, in my view) that presidents are in no position to dictate executive policy to the vast federal bureaucracy by unilateral command. Instead, the central question facing most presidents is whether they’ll succeed in “harness[ing] bureaucrats’ knowledge and expertise” or “whether this very knowledge and expertise [will] allow bureaucrats to usurp the[ir] rightful role … in policymaking.” (page 29). Because of their information disadvantage relative to the agencies they “command,” presidents seeking to get things done have no choice but to “bargain[ ] with the bureaucracy.” (Chapter 2).

Rudalevige frames presidential negotiations with the administrative state in “make or buy” terms. That is, presidents must weigh the relative costs and benefits of “making” policy in house “versus delegating that task to the wider bureaucracy.” (page 9). “Governance structures” like central clearance, he explains, exist to assist presidents in assessing the transaction costs associated with available options. In short, while presidents have a rightful claim to power to command the executive branch, they are like “the rulers of a far-flung empire nominally under their control but whose constituent states in practice exercise a good deal of discretion—and on which their capitol depends for its very subsistence.” (page 29).

By Executive Order is brimming with detailed accounts of the various ways agencies can control the fate of executive orders. (pages 32, 34-35, Chapters 6-7). And while Rudalevige’s study focused on executive orders, he emphasizes that the same dynamics likely apply to all forms of presidential decisionmaking. (page 205).

In light of all this, Rudalevige recommends that presidents give up on attempting to “command” the executive branch and accept that their job is to “manage” it as best they can. “[M]anagement matters,” he says. So “presidents need to get better at it.” (page 220). And given that “there is a case to be made for bureaucratic capacity, for expertise and for its own role as a ‘principled agent’ toward the public good,” he hints that maybe the rest of us should accept it, too. (page 220).

Rudalevige’s findings regarding agency power are especially troubling from an administrative law perspective. Most of the debates regarding the president’s institutional relationship with the administrative state have focused on presidential attempts to control agency action. In Presidential Administration, for example, then-Professor Kagan argued that the president’s status as an elected official meant that presidential control over agency action enhances the democratic legitimacy of the administrative state. The phenomenon Rudalevige documents—agency control of presidential action—strikes me as far more troubling for at least four reasons. First, it permits agencies to evade the APA’s process and judicial review requirements.

Second, it deprives presidential action of one of its chief virtues: dispatch. Rudalevige describes agencies using delay tactics to stall presidential decisionmaking or thwart it altogether. (pages 140-143). “We tend to think of EOs as mechanisms for rapid response,” he explains (page 140), “indeed as nearly immediate …. But in fact a lot of waiting lurks behind even headline-level policymaking.” Sometimes “delay can be purposeful,” but “it may simply result from the complications of managing multiple participants in a complicated policy process.” (page 143).

Third, agencies’ ability to exert this sway stems from an informational advantage they have over presidents that is very likely to increase over time. After all, the administrative state is permanent and ever expanding; presidential action is on the rise as Congress legislates addresses fewer issues through legislation; and agencies have an institutional interest in evading political accountability for their decisions by laundering them through the executive order process whenever possible. Rudalevige confirms this last point: “With the growth in the size and scope of government, and the concomitant expansion of both the executive branch and the White House staff, administrative tactics generally became more central to presidential leadership,” he writes (page 53). “The number of executive orders grew dramatically as statutes delegated more authority to the president, and through him to the executive branch.”

Worst of all, agency control over presidential action permits the bureaucracy to govern by secret law. Secrecy is an essential feature of presidential action. In the agency context, though, it is an abomination. The problem with secrecy in agency action is blame tracing. As now-Justice Elena Kagan explained in Presidential Administration, “the degree to which the public can understand the sources and levers of bureaucratic action” is a “fundamental precondition of accountability in administration.” No such blame-tracing concerns apply in the presidential-action context, however, because the president is democratically elected and an individual person.

Perhaps I’m overreacting to Rudalevige’s findings. As a practicing lawyer, I’ve become a bit sensitive to agency gamesmanship. Make no mistake, though, I loved this book. Rudalevige’s research is comprehensive, and his insights are profound. I highly recommend it.

Shane Pennington serves as counsel in Vicente Sederberg’s New York office. His practice focuses on federal appeals and regulatory issues. He is a former law clerk to federal judges on the D.C. Circuit, the Fifth Circuit, and the D.C. District Court.

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