Daniel J. Hemel (New York University School of Law) has posted Presidential Administration to the Slaughter (Journal of Law & Public Affairs, forthcoming) on SSRN. Here is the abstract:
Then-Professor Elena Kagan published Presidential Administration exactly a quarter century to the month before the Supreme Court delivered its precedent-shattering decision in Trump v. Slaughter, which overruled Humphrey’s Executor and held that officials who exercise executive power must be removable by the President at will. At first glance, Slaughter might appear to be the culmination of Professor Kagan’s project: her descriptive claim that “[w]e live today in an era of presidential administration” proved to be truer than she knew, as Slaughter extends presidential power beyond the limits that Professor Kagan assumed. This essay—prepared for a symposium marking the twenty-fifth anniversary of Presidential Administration—argues that the superficial alignment between Kagan’s presidentialism and the Slaughter Court’s conceals a deeper fissure. For Professor Kagan, Humphrey’s Executor supported the interpretive inference that Congress—when it delegates power to an executive branch official who is removable at will by the President—implicitly authorizes the President to direct that official’s exercise of discretion. That interpretive inference bolstered her normative case for presidentialism: precisely because Congress could choose to insulate agencies when it wanted to, presidential administration enjoyed a double-barreled legitimacy based both on the President’s electoral mandate and on Congress’s democratic bona fides. Slaughter severs the link between at-will removability and legislative choice by taking for-cause protection off Congress’s menu of design options. Thus, even agencies whose heads were always removable at will by the President lose the added layer of legitimacy that came from implicit legislative approbation. The result is a version of presidential administration both broader in scope and shallower in justification than the one that Professor Kagan described and defended.
Highly Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum