Jodi L. Short (UC Law, San Francisco) has posted Defining the Scope of Presidential Directive Authority in a World of Unfettered Removal Power on SSRN. Here is the abstract:
Over the last several decades, Presidents have used their authority to direct the actions of administrative agencies in increasingly bold and pointed ways, sometimes in ways that violate statutory or constitutional law. Given the significant power delegated by statute to executive-branch agencies, it is not surprising that presidents would seek to direct agencies’ work. This raises important questions about the scope of their authority to do so—in other words, the scope of presidential directive authority. While there was vigorous debate in the early twenty-first century about whether the President possesses the power to direct the exercise of authority delegated by statute to other executive-branch officials, there is now little question that the President enjoys some amount of directive authority. The discussion must turn urgently to the scope and limits of that authority.
Recent Supreme Court case law giving the President the unfettered authority to remove an increasing number of executive-branch officials raises the stakes of that discussion. The President now has the judicially unreviewable prerogative to fire the head of just about any agency in the executive branch for failing to follow a presidential directive to violate the law. Indeed, in his second term, President Trump has tested these limits, issuing directives that order agencies to violate clear statutory requirements and established constitutional law.
Courts have struggled to define their role in policing these transgressions. Eager to avoid confrontation with the executive branch, courts have often dodged or elided questions about the legality of presidential directives. That approach is dangerous and untenable in the face of rampant executive branch overreach. This chapter provides a conceptual framework for understanding presidential directive authority and its place in separation of powers jurisprudence.
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