Constraining the Statutory President

Authors

Kathryn E. Kovacs, Rutgers Law School

Publication Title

Washington University Law Review

Abstract

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.

Recommended Citation

Kathryn E. Kovacs, Constraining the Statutory President, 98 Wash. U. L. Rev. 063 (2020).
Available at: https://openscholarship.wustl.edu/law_lawreview/vol98/iss1/6