Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience

Mashaw, Jerry L.; Berke, David

doi:10.2139/ssrn.3018618

Cited by 9 publications

(8 citation statements)

References 17 publications

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“…Substantively, a common theme throughout the asylum cases was the Trump Administration's statutory overreach, which often ignored the plain meaning and intent of immigration laws and settled practices and precedents. Even under an aggressive form of presidentialism, it is Congress's policy choices that control, including the choices of past Congresses (Mashaw & Berke, 2018). Simply put, the laws that presidents are charged with "faithfully executing" include all laws, past and present.…”

Section: Discussionmentioning

confidence: 99%

“…As presidential power grew and politics became more polarized, presidents have increasingly relied on federal agencies to implement major policy initiatives (Bulman-Pozen, 2019;Kagan, 2001;Shane, 2009). Accordingly, subsequent presidents, Democrats and Republicans alike, have continued the expansion of presidentialism (Bressman, 2003;Mashaw & Berke, 2018;Shane, 2009).…”

Section: Overview Of Regulatory and Legal Frameworkmentioning

confidence: 99%

“…However, as presidents increasingly utilize administrative agencies to enact their policy agendas, especially when stymied by legislative gridlock and polarization, they have also been used to enact major policy changes (Chen, 2017;Cole & Garvey, 2016). As one pre-Trump Administration example, after Congress failed to act on immigration reform, President Obama initiated Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and Deferred Action for Childhood Arrivals (DACA) through a memorandum from DHS to various immigration agencies directing them to defer deportations (Mashaw & Berke, 2018).…”

Section: Overview Of Regulatory and Legal Frameworkmentioning

confidence: 99%

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Mapping Immigration Policy at the Southern Border: An Administrative and Judicial Analysis

Lens

Kanelstein

2021

Administration & Society

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Presidents are increasingly relying on a mode of governing—presidentialism—that produces radical shifts in public policy through the administrative state, rather than through Congress. Most recently, using the tools of the administrative state rather than legislative action, the Trump Administration has reinterpreted the laws governing asylum, especially as to citizens from Central America seeking refuge from violence and dire poverty. Through a legal analysis of the judiciary’s response to these reforms, this article examines the limits and constraints of presidential administrative power.

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Section: Discussionmentioning

confidence: 99%

Section: Overview Of Regulatory and Legal Frameworkmentioning

confidence: 99%

Section: Overview Of Regulatory and Legal Frameworkmentioning

confidence: 99%

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Mapping Immigration Policy at the Southern Border: An Administrative and Judicial Analysis

Lens

Kanelstein

2021

Administration & Society

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“…395 Indeed, rulemaking may be "the most open and deliberative of any processes in American federal governance." 396 The public interest demands that agency decisions reflect deliberation, not raw politics. 397 Peter Shane posited that "our best instrument for elevating public interest over faction" is "an extended democratic conversation during which multiple interests and perspectives are brought to bear and momentary passions are perhaps cooled with time for reflection."…”

Section: Deliberationmentioning

confidence: 99%

Constraining the Statutory President

Kovacs

2020

SSRN Journal

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When agencies make decisions that are binding on the public, they must provide public notice, accept and consider public comments, and provide explanations for their final decisions. Their actions are then subject to judicial review to ensure that they acted within the scope of their authority and the decision was not arbitrary or capricious. The President, however, is not subject to such constraints, even when exercising purely statutory authority, i.e., acting as the "Statutory President." That autonomy is due to the Supreme Court's holding in Franklin v. Massachusetts that the President is not an "agency" under the Administrative Procedure Act (APA). Thanks to Franklin, the President exercises delegated authority to make policy decisions that have enormous implications for the public without the public involvement, transparency, deliberation, and political and judicial accountability that we demand when agencies make such decisions. This Article is the first to take Franklin v. Massachusetts head on. It demonstrates that the Court's 1992 holding conflicts with the plain language and history of the APA; it explains the flaws in the Court's constitutional analysis; and it presents the normative case for treating the Statutory President like any other agency. Having shown that Franklin was wrong, this Article sketches a new model for treating the Statutory President like an "agency" under the APA. It concludes by explaining how both the process and outcome of Trump v. Hawaii, in which the Supreme Court upheld the President's order barring immigration from certain Muslim-majority nations, would have been different had the President been subject to the APA.

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“…Below are the views of leading scholars in the field of administrative law on Executive Order 12291: (i) "Second, and more innovatively, his [Reagan] Administration issued the Now-Iconic Executive Order 12291" (Mashaw & Berke, 2018). (ii) "In a meeting sponsored by the Federalist Society…Professor David Vladek of Georgetown University law school" observed "That the Reagan Executive Order 12291, which instituted government-wide centralized regulatory review is, along with the APA [Administrative Procedure Act], one of the two most influential documents of the regulatory state" (Tozzi, 2017d).…”

Section: The Significance Of An Iconic Executive Ordermentioning

confidence: 99%

Office of Information and Regulatory Affairs: Past, Present, and Future

Tozzi¹

2019

J. Benefit Cost Anal.

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This article has three sections, each of which deals with an Executive Order. The first section, “Office of Information and Regulatory Affairs (OIRA) Past,” emphasizes the critical role that Executive Orders played in the formation of OIRA. More specifically, OIRA owes its initial existence to the establishment of a centralized regulatory review system, the Quality of Life Review, which initiated Office of Management and Budget (OMB) review of environmental regulations through the issuance of a directive from OMB. Every subsequent President expanded OMBs powers through the issuance of Executive Orders which culminated in the Iconic Executive Order 12291. The section concludes with the recommendation that a select class of Executive Orders, and OMB Directives, be designated as “Iconic” by the National Archivist in consultation with the OIRA, and then given substantial deference by incoming Administrations. The second section, “OIRA Present,” describes an Executive Order issued during the Kennedy Administration which remains in effect but was promulgated prior to the establishment of OIRA and therefore recommends that a new Executive Order be issued which gives OIRA specific authority to participate in the conduct of interagency reviews of Executive Orders. The third section, “OIRA Future,” describes an Executive Order which implements a regulatory budget (RB) and institutionalizes a mechanism for controlling the size of the administrative state. This final section of the article recommends that the aforementioned Executive Order be reviewed and modified based upon the outcome of a request for public comments, and rules with demonstrated positive net benefits should no longer be accorded an automatic entitlement for issuance as a final rule absent their inclusion in an RB.

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Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience

Cited by 9 publications

References 17 publications

Mapping Immigration Policy at the Southern Border: An Administrative and Judicial Analysis

Mapping Immigration Policy at the Southern Border: An Administrative and Judicial Analysis

Constraining the Statutory President

Office of Information and Regulatory Affairs: Past, Present, and Future

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