Final Published Version: “Presidential Maladministration”

March 23rd, 2018

I posted the first draft of Presidential Maladministration to SSRN in December 2016. A month earlier, I teased a preview. Today, the Illinois Law Review has published the final version of the article. 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.

Rather than rewriting the corpus of the article to discuss new aspects of maladministration within the Trump Administration, I instead added a brief post-script. Here is how it begins:

I began writing this article during the spring of 2016, but, due to the par- ticularities of the law review publication cycle, it was not finalized until the spring of 2018. During that period, many of the ideas discussed in this Article came to fruition, far quicker than I could have ever fathomed. Though not yet published, Presidential Maladministration has already made an impact on the literature with citations in the Foreword to the Harvard Law Review729 and in the New York Times.730 Rather than updating the corpus of the Article, I decided to include this postscript in order to evaluate the “natural experiment [that] test[s] the four species of presidential maladministration” during the early days of the Trump Administration.731 This postscript is by no means meant to be ex- haustive.

729. Gillian E. Metzger, Foreword: 1930s Redux: The Administrative State Under Siege, 131 HARV. L. REV. 1, 32 n.182 (2017) (“some anti-administrative scholars are now sounding alarms about burgeoning presi- dential power”) (citing Josh Blackman, Presidential Maladministration, 2018 U. ILL. L. REV. 397 (on file with the Harvard Law School Library)).

730. Adam Liptak, Trump’s Legal U-Turns May Test Supreme Court’s Patience, N.Y. TIMES (Aug. 28, 2017), (“In a new law review article, Josh Blackman, a professor at South Texas Col- lege of Law, considered earlier changes in the government’s legal positions, finding them ‘increasingly prob- lematic.’ On the one hand, he wrote, elections have consequences. ‘There is nothing nefarious when a new administration disagrees with a previous administration,’ he wrote. ‘Indeed, it is quite natural that presidents see things differently. The only question that remains is how should courts treat this reversal.’ If two administrations manage to read the same federal statutes in opposite ways, he wrote, something may be amiss. ‘Where an in- coming administration reverses a previous administration’s interpretation of statute simply because a new sheriff is in town,’ he wrote, ‘courts should verify if the statute bears such a fluid construction.’”).

This article will likely be one of my more influential, and cited pieces–especially the part on “presidential reversals.”