I’ve posted to SSRN an article I have been working on for some time, which has become especially salient after the 2016 President election. Not content to set my sights low, I explain why a core tenet of then-Professor Elena Kagan’s award winning article, Presidential Administration, is wrong. As the saying goes, when you shoot the Queen, don’t miss. To that end, I welcome comments on Presidential Maladministration, which I plan on submitting in the spring window .
Here is the abstract:
In Presidential Administration, then-Professor Elena Kagan re-envisioned administrative law through the lens of the President’s personal influence on the regulatory state. Rather than grounding Chevron deference on an agency’s “special expertise and experience,” Kagan would “take unapologetic account of the extent of presidential involvement in administrative decisions in determining the level of deference to which they are entitled.” The stronger the President’s fingerprints on the executive action, a practice she praises as “presidential administration,” the more courts should defer.
There is a flipside to Kagan’s theory: four species of high-level influence, which I describe as “presidential maladministration,” are increasingly problematic. First, where an incoming administration reverses a previous administration’s interpretation of statute, simply because a new sheriff is in town, courts should verify if the statute bears such a fluid construction. Second, where an administration discovers a heretofore unknown power in a statute that allows it to confer substantive rights, courts should raise a red flag, especially when the authority exercised was one Congress withheld. Third, where an administration declines to enforce a statute that Congress refuses to repeal, under the guise of prosecutorial discretion, courts should view the action with skepticism. Fourth, where evidence exists that the White House attempted to exert its influence, and intrude into the rulemaking process of independent agencies, courts should revisit the doctrine concerning altered regulatory positions.
As the Federal Register turns the page from Obama to Trump, this article provides a timely analysis of how courts react to unpresidented approaches to maladministration.