Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law by Jed H. Shugerman, Jodi L. Short :: SSRN

 The hardest question for lawyers thinking about the Supreme Court of the U..S. today is whether reason plays any role: is it entirely driven by a quiver of doctrines selected to justify the right wing cause du jour. IOW - is there really a search for law that can withstand changes in partisan alignments?

In my now fifty year career as a New Jersey lawyer the ideological range on the high and appellate courts has been center left to center right.  So though we had some profound differences of consequence (e.g. death penalty; recently the Supreme Court's abandonment of its groundbreaking history in products liability)  we were within reach of each other - we understood "where each was coming from) the ideological divides and fought within a reasonably narrow range.

But at least since the rise of Newt Gingrich and the "Contract with America" Republican party hostility to government has driven almost all - except for devotion to the police (but not the police power) and the military spending that finances the otherwise generally lagging economies of its base.  That ideological thrust has been aptly characterized as "racialized anti-statism" by Jefferson Cowrie in his Pulitzer Prize winning Freedom's Dominion.

Jed Shugerman and Jodi Short take on the present manifestation of the schizophrenia on the right: apotheosis of Presidential power and detestation of the Rooseveltian administrative state.  Both sides of the ideological coin share an antipathy to social democracy.

- GWC

Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law  SSRN

UC San Francisco Research Paper Forthcoming

Boston Univ. School of Law Research Paper No. 4531721

64 Pages Posted: 8 Aug 2023 Last revised: 4 Mar 2024

Jed H. Shugerman

Boston University - School of Law

Jodi L. Short

UC Law, San Francisco

Date Written: August 4, 2023

Abstract

A contradiction about the role of the president has emerged between the Roberts Court’s Article II jurisprudence and its Major Questions Doctrine jurisprudence. In its appointment and removal decisions, the Roberts Court claims that the president is the “most democratic and politically accountable official in Government” because the president is “directly accountable to the people through regular elections,” an audacious new interpretation of Article II; and it argues that tight presidential control of agency officials lends democratic legitimacy to the administrative state. We identify these twin arguments about the “directly accountable president” and the “chain of dependence” as the foundation of “Roberts Court presidentialism.”

Meanwhile, each of the policies in dispute in the Major Questions cases over the past three decades are the product of the “directly accountable president” and the “chain of dependence” in action. This Article documents seven MQD cases, from 1990s tobacco regulation to the recent student debt waiver: presidents campaigning on the policy, directing agencies to adopt the policy, and then publicly taking credit and responsibility for the policy. Nevertheless, the Supreme Court has almost always ignored the presidents’ role in Major Questions policies and has instead blamed the agency for overstepping its delegated power. The erasure of presidents serves the Court’s narrative of blaming “unaccountable bureaucrats,” rather than either granting the policy more democratic legitimacy for its presidential backing or holding the president who ordered the policy accountable for overstepping the separation of powers. The erasure also suggests the Court has an underlying ambivalence or anxiety about the problems of presidential power, which Roberts Court presidentialism has exacerbated. Ironies abound: relying on a theory of presidential accountability, but then retreating from holding presidents accountable; unaccountable judges expanding judicial power based on a narrative of “unaccountable bureaucrats.”

The rule of law requires consistent reasoning. We suggest five doctrinal opportunities to resolve the contradictions between the Roberts Court’s Article II presidentialism and its Major Questions’ erasures of presidents: 1) SEC v. Jarkesy on the removal of administrative law judges; 2) future MQD cases crediting or blaming presidents; 3) the applicability of MQD to presidents; 4) the future of Chevron deference; and 5) in applying the non-delegation doctrine. The Roberts Court can untangle the “chain of dependence” with more consistency in either direction, but perhaps the most important lessons from these contradictions are for judicial restraint and of acknowledging the costs of direct presidential power, not just the benefits.

Suggested Citation:

Shugerman, Jed H. and Short, Jodi L., Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law (August 4, 2023). UC San Francisco Research Paper Forthcoming, Boston Univ. School of Law Research Paper No. 4531721, Available at SSRN: https://ssrn.com/abstract=4531721 or http://dx.doi.org/10.2139/ssrn.4531721