Missouri Law Review Volume 85 Issue 1 Article 6 Winter 2020 Policing Executive Teamwork: Rescuing the APA from Presidential Administration William Powell Follow this and additional works at: https://scholarship.law.missouri.edu/mlr Part of the Law Commons Recommended Citation William Powell, Policing Executive Teamwork: Rescuing the APA from Presidential Administration, 85 MO. L. REV. (2020) Available at: https://scholarship.law.missouri.edu/mlr/vol85/iss1/6 This Article is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Powell: Policing Executive Teamwork: Policing Executive Teamwork: Rescuing the APA from Presidential Administration William Powell* ABSTRACT The Administrative Procedure Act (“APA”) does not apply to the President. In place of the well-known and well-defined procedural and substantive requirements of the APA, a more limited “nonstatutory” form of judicial review governs the President’s exercises of statutory authority. Scholars have devoted many pages to debating what form nonstatutory review of Presidential actions should take. But the President rarely acts alone. In the era of Presidential Administration, our nation’s chief executive spends much of her time telling bureaucrats what to do. In that context, this Article takes up an essential predicate question: When the President acts with or through an agency, how should a court distinguish between presidential actions that are exempt from the APA and agency actions to which the APA applies? This Article is the first to answer this important question. A study of the caselaw reveals a split. The “last act” camp views the rule that the APA doesn’t apply to the President primarily as a matter of finality. Unless the President takes the last action in a sequence, the APA applies. The “presidential nature” camp views the rule as more broadly tied to the separation of powers, such that any action that is presidential in nature (however that may be defined) is exempt from the APA. This Article argues that while the former approach is overly formalistic and may undermine the President’s authority, the latter approach poses an existential threat to the existing regime of judicial review of agency action. As the President increasingly exerts control over agencies, many significant executive branch actions start to look “presidential,” which could, in turn, limit judicial oversight. To save the APA from Presidential Administration (as well as from the Unitary Executive Theory), this Article argues that the * Ethics and Excellence in Journalism Legal Fellow, Reporters Committee for Freedom of the Press. Yale Law School, ’19. Immense gratitude to Professor Nicholas Parrillo for his steady guidance and insightful feedbacK at every stage of this project. Deep appreciation to the students in Professor Parrillo’s Administrative Law & Bureaucracy seminar for their smart suggestions and to the members of the Yale Law Journal Volume 128 notes and comments committee, especially Christine Smith, for teaching me what little I Know about legal scholarship. Many thanKs to Zoe Jacoby for her helpful comments and wise counsel. ThanKs also to Rachel BloomeKatz, Amy Chua, DeepaK Gupta, Cristina Rodríguez, and Matt Wessler. All of my love to Mara and Rachael Powell. And a big thanK you to the editors of the Missouri Law Review for their editorial support. Published by University of Missouri School of Law Scholarship Repository, 2020 1 Missouri Law Review, Vol. 85, Iss. 1 [2020], Art. 6 72 MISSOURI LAW REVIEW [Vol. 85 President’s APA exemption should be limited to her direct actions under statutes that delegate authority to her by name. Otherwise, the APA should apply to agency actions, regardless of the President’s involvement. At the same time, courts applying “hard look” substantive review of agency action should give greater leeway to political input from the Executive. This will balance the desire for agencies to be politically accountable to the President with the fundamental requirement that agencies act in accordance with law. https://scholarship.law.missouri.edu/mlr/vol85/iss1/6 2 Powell: Policing Executive Teamwork: 2020] EXECUTIVE TEAMWORK 73 TABLE OF CONTENTS ABSTRACT… ................................................................................................. 71 TABLE OF CONTENTS .................................................................................... 73 INTRODUCTION ............................................................................................. 74 I. BINARY RULE, NONBINARY WORLD ........................................................ 79 A. The Binary Rule ................................................................................ 79 B. The Nonbinary World ....................................................................... 87 1. Mixed Delegations and Subdelegations ..................................... 87 2. Presidential Administration and the Unitary Executive ............. 90 3. Explosion of Presidential Administration in Practice ................ 93 C. Why It Matters: Differences Between APA and Nonstatutory Review ............................................................................................. 95 1. Lack of Clarity ........................................................................... 97 2. Cause of Action and Sovereign Immunity ................................. 98 3. Rationality Review ................................................................... 100 4. Procedural Review ................................................................... 101 5. Deference to Statutory Interpretation ....................................... 102 6. Remedies .................................................................................. 103 II. THE MESSY BUSINESS OF APPLYING THE APA TO EXECUTIVE TEAMWORK .......................................................................................... 103 A. The “Last Act” Approach .............................................................. 104 B. The “Presidential Nature” Approach ............................................ 108 C. The Divide in Action: “Presidential” Permits Issued by Agencies ........................................................................................ 110 D. SCOTUS Dodges the Question ...................................................... 114 III. A SENSIBLE LINE BETWEEN APA AND NONSTATUTORY REVIEW ....... 116 A. Others’ Ideas .................................................................................. 117 B. “Agency Nature”: Applying the APA to Presidentially Influenced Agency Action ............................................................. 119 C. Doctrinal Defense of the “Agency Nature” Rule ........................... 123 D. Political Defense of the “Agency Nature” Rule ............................ 125 CONCLUSION ............................................................................................... 128 Published by University of Missouri School of Law Scholarship Repository, 2020 3 Missouri Law Review, Vol. 85, Iss. 1 [2020], Art. 6 74 MISSOURI LAW REVIEW [Vol. 85 INTRODUCTION On NovemBer 20, 2014, President Barack Obama delivered a televised address to the nation about immigration.1 After the failure of comprehensive immigration reform legislation in 2013,2 the President announced that he would use his own authority to make our “Broken” immigration system “more fair and more just.”3 Among the reforms he announced was a program called Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”), although he did not use that clunky title in his speech.4 Instead, he pitched the program as needed “to deal responsibly with the millions of undocumented immigrants who already live in our country.”5 He said that immigration enforcement should target “felons, not families” and “criminals, not children.”6 For undocumented immigrants who had been in the country for more than five years, had children who were citizens or lawful permanent residents, and could pass a criminal Background check, he offered a “deal”: they could “stay in this country temporarily without fear of deportation[,] . come out of the shadows[,] and get right with the law.”7 The President’s speech made it crystal clear who was making these changes: President Obama himself. He described the programs as “actions I have the legal authority to take as President.”8 He douBled down on this point throughout the address: “The actions I’m taking are not only lawful, they’re the kinds of actions taken By every single RepuBlican President and every single Democratic President for the past half century.”9 The press coverage 1. Press Release, President Barack Obama, Remarks by the President in Address to the Nation on Immigration (Nov. 20, 2019), https://obamawhitehouse.archives.gov /the-press-office/2014/11/20/remarks-president-address-nation-immigration [perma.cc/VXP5-4R5V]. 2. Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong. (2013), https://www.congress.gov/bill/113th- congress/senate-bill/744. 3. President Obama, supra note 1. 4. Id. DAPA was meant to build on the success of its predecessor program, Deferred Action for Childhood Arrivals (“DACA”), which protected immigrants known as “Dreamers” who had come to the country as Kids