The Supreme Court appears to be poised to uphold the so-called Travel Ban at issue in Trump v. Hawaii. At the oral argument, some of the justices seemed concerned about the Court second-guessing an order that came from the President himself and that concerned national security. Neither of those factors, however, should hinder the Court from reviewing the Travel Ban under the Administrative Procedure Act (APA).
In 1992, the Supreme Court held that the President is not an “agency” under the APA and thus cannot be sued under the APA. That drive-by conclusion was incorrect at the time and is even more inappropriate now. Over the course of seventeen years, Congress hashed out the grand compromise that culminated with the APA in 1946. Congress intentionally defined “agency” broadly as including “each authority of the Government of the United States, whether or not it is within or subject to review by another agency.” Congress exempted itself and the courts from that definition, but it did not exempt the President. It took more than forty years for the question of the President’s status under the APA to hit the Supreme Court because Congress typically assigned administrative decisionmaking to agency heads, and Presidents typically allowed their appointees to do their jobs as assigned.
Over the past several decades, however, Presidents increasingly have taken actions that traditionally would have been taken by the head of an agency. In the immigration context, for example, when President Reagan wanted to change policy, he pressured Congress to take action; when President Obama wanted to change policy, he announced the new policy in the Rose Garden and directed the Secretary of Homeland Security to issue the relevant document; when President Trump wanted to change policy, he did it himself. Such presidential “direct actions” put the President in the position of a cabinet officer or, perhaps, the Administrator in Chief. Of course, the statute at issue in Trump v. Hawaii authorized the President himself to issue this order. In this circumstance, then, it was not the President himself who took on the role of cabinet officer, but rather Congress that gave him that role. Who assigns the President the role of cabinet officer, however, is of no consequence. The bottom line is the same: if the President acts like an agency, he should be treated like an agency. Any other approach leaves the President’s power to be checked only by an atrophied Congress and the small fraction of the populace that votes every four years.
The fact that the Travel Ban relates to national security should not impede court review either. Government actions related to national security should receive no more or less deference in the courts than any other government actions. The standard of review in the APA – “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” – leaves plenty of wiggle room for interpretation. What is clear about that standard, however, is that it applies equally to all agency actions. The APA exempts “foreign affairs functions” from the rulemaking and adjudication requirements, it exempts certain military decisions from all of its requirements, and it exempts agency action from judicial review where a statute precludes review or where the decision is committed to the agency’s discretion. Nowhere, however, does the APA exempt from judicial review agency actions that concern national security. The APA’s grand compromise included the deliberate decision to treat all agency actions the same in court. Of course, Congress can change the standard of review for particular agency actions or exempt them from judicial review entirely, but that is not the case with the Travel Ban. Courts should tread lightly when considering issues of such moment as the nation’s security. But they should tread equally lightly when considering the nation’s environment, economy, and health. Thus, the Travel Ban should stand or fall as any other agency action.
Kathryn E. Kovacs is a Professor of Law at Rutgers Law School.