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Political Parties and Presidential Oversight 2 LIVERMORE 45-134 (DO NOT DELETE) 11/5/2015 9:20 AM POLITICAL PARTIES AND PRESIDENTIAL OVERSIGHT Michael A. Livermore* ABSTRACT .................................................................................................... 46 INTRODUCTION ............................................................................................ 46 I. PRESIDENTS, PARTIES, AND ADMINISTRATION ........................................ 53 A. Executive Restructuring ............................................................. 54 B. Presidential Control in Administrative Law .............................. 58 C. Decline and Rebirth of American Political Parties ................... 62 II. THE MECHANICS OF PRESIDENTIAL OVERSIGHT .................................... 68 A. People Are Policy ...................................................................... 68 B. Parties and Appointments .......................................................... 72 C. Performance, Politics, and the New Patronage ........................ 76 III. PARTIES AND PRESIDENTIAL REPRESENTATION .................................... 80 A. A Simple Model of Presidential Representation ........................ 81 B. Politicians and Groups in Political Parties............................... 86 C. Responsible Party Government ................................................. 93 IV. RELATIONSHIPS WITH CONGRESS .......................................................... 96 A. Shared Oversight ....................................................................... 97 B. Party Discipline in Congress ................................................... 100 C. Interbranch Sparring ............................................................... 104 V. RESPONSIBLE PARTY ADMINISTRATION ............................................... 110 A. Administrative Values and Party Rivalry ................................ 111 B. Judicial Review ........................................................................ 117 C. Executive Review ..................................................................... 124 CONCLUSION .............................................................................................. 132 * Associate Professor, University of Virginia School of Law. My thanks to John Aldrich, Rachel Barkow, Jessica Bulman-Pozen, Daniel Farber, Michael Gilbert, Sally Katzen, David Lewis, Sidney Milkis, Lia Norton, Richard Pierce, Rachel Augustine Potter, Richard Revesz, Arden Rowell, Mark Seidenfeld, Sidney Shapiro, Mark Tushnet, Adrien Vermeule, Melissa Wasserman, B. Dan Wood, and to participants at workshops at Duke School of Law, the University of Illinois (Urbana-Champaign) College of Law, the University of Virginia School of Law, and Vanderbilt Law School for valuable comments. Thanks also to Caroline Stewart for excellent research assistance. 45 2 LIVERMORE 45-134 (DO NOT DELETE) 11/5/2015 9:20 AM 46 Alabama Law Review [Vol. 67:1:45 ABSTRACT The intimate, and often underappreciated, relationship between political parties, the presidency, and the administrative state has profound consequences for the functioning of these three institutions at the heart of American political life. Failure to draw out and illuminate this connection has led to an incomplete understanding of administrative law—both descriptively in what the law does and can do, and normatively in what it should do. In particular, courts and commentators have not grappled with the fundamental shift experienced by political parties over the past several decades—from traditional party organizations that were locally focused and ideologically diverse to today’s high-tech, polarized, and nationally oriented parties. This transformation was strongly influenced by the growth of administrative agencies and the modern presidency, and has important implications for the practical realities of presidential control over agencies, for the normative justifications supporting the President’s prominent role in the administrative state, and for the struggle over control of agencies between the President and Congress. This Article maps out the intersection of President, administration, and contemporary parties and proposes “responsible party administration” as a normative framework to evaluate how well institutional arrangements and judicial doctrines forward administrative values such as expertise, coherence, and legality while accommodating a system of regulated rivalry in which two programmatically distinct parties compete for the reins of the administrative state. INTRODUCTION In the past several decades, the intimate relationship between political parties, the presidency, and the administrative state has undergone a basic transformation. Traditional political parties—dominant for nearly a century and caricatured in depictions of smoke-filled backroom deals between party bosses—effectively disappeared.1 Into that void stepped a “new breed” of contemporary political parties that are primarily concerned with policy programs, rather than patronage, and that are nationally oriented, rather 1. See infra Part I.C (discussing heyday and decline of traditional party organizations). See RICHARD M. HARNETT & BILLY G. FERGUSON, UNIPRESS: UNITED PRESS INTERNATIONAL COVERING THE 20TH CENTURY 48 (attributing first usage of “smoke-filled room” to describe political decision making to journalist Raymond Clapper’s coverage of the 1920 national Republican convention, in which successive failed balloting rounds led to a lengthy discussion between party leaders that resulted in a compromise nominee, Warren G. Harding). 2 LIVERMORE 45-134 (DO NOT DELETE) 11/5/2015 9:20 AM 2015] Political Parties and Presidential Oversight 47 than locally focused.2 The decline and revival of American political parties has pervasively influenced the relationship between the President and the administrative state.3 Although political scientists who study the presidency, government bureaucracy, and political parties have examined these changes,4 administrative law scholarship has not adequately grappled with the normative and descriptive consequences of this profound shift. Drawing on a substantial body of recent political science literature, this Article examines the changed relationship between presidents, parties, and administration in light of several central questions in administrative law. The new breed of political parties has important and underappreciated consequences for how presidents exert control over agencies, whether the President’s prominent role in the administrative state is justified, and how Congress and the President interact in their shared oversight roles. Perhaps most important, contemporary parties contribute to broader trends that have consigned traditional normative models of administrative law to a “lost world” that is unlikely to return.5 New normative models are needed, better capable of responding to current circumstances. In a spirit of exploration of this new terrain, the Article proposes responsible party administration as an alternative normative aspiration for administrative law. This framework seeks to reconcile the benefits of partisan rivalry with administrative values such as expertise, coherence, vigor, and legality. Striking this balance is no simple task and existing institutional arrangements and legal doctrines succeed to varying degrees under this rubric. The transformation to contemporary parties gathered steam in the decades leading up to the 1960s, when social, cultural, legal, and technological changes undermined the mass political parties that had structured political life in the United States for nearly a century and a half.6 The waning of traditional party organizations did not spell an end to political parties. Instead, after a period in which parties “hovered in the 2. JEANE KIRKPATRICK, THE NEW PRESIDENTIAL ELITE: MEN AND WOMEN IN NATIONAL POLITICS 3 (1976) (referring to “the ‘new breed’ hypothesis” that “American politics is being transformed in some important, fairly fundamental ways by the ascendancy [in party politics] of large numbers of new men and women whose motives, goals, ideals, ideas, and patterns of organizational behavior are different from those of the people who have dominated American politics in the past”); see infra Part I.C. 3. For a general discussion of the relationship between presidents and agencies, see Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245 (2001). 4. See infra Part I.C. See Kenneth S. Lowande & Sidney M. Milkis, “We Can’t Wait”: Barack Obama, Partisan Polarization and the Administrative Presidency, 12 THE FORUM 3 (2014) (examining “the tension between presidential leadership, the administrative state, and modern political parties” in the context of high profile executive actions of the Obama administration). 5. Daniel Farber & Anne Joseph O’Connell, The Lost World of Administrative Law, 92 TEXAS L. REV. 1137 (2014). 6. JOHN H. ALDRICH, WHY PARTIES?: A SECOND LOOK (2011). 2 LIVERMORE 45-134 (DO NOT DELETE) 11/5/2015 9:20 AM 48 Alabama Law Review [Vol. 67:1:45 background,” they reemerged in the late 1970s and 1980s with renewed institutional forms suited to the contemporary needs of office seekers, interest groups, and policy-oriented activists.7 This transformation is sufficiently striking that it is possible to speak of two distinct types of American political parties that were dominant during different historical periods.8 Traditional party organizations, which had a long heyday that lasted from the mid-nineteenth century through roughly 1960, were locally
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