Abstract

The federal government employs over 2 million civilian workers, all but a few thousand of whom enjoy forms of tenure and insulation from presidential control. This bureaucracy, sometimes called "the administrative state," is organized in a many-layered structure defined by statutes and regulations. Pursuant to law and court decisions, the administrative state routinely makes findings of fact, policy determinations, and conclusions of law, sometimes independent of the president. The Supreme Court's recent decision in United States v. Arthrex risks unsettling this arrangement. It adopts a simplistic, hierarchical vision of bureaucratic organization, which is frankly incompatible with existing statutes and regulations.

This Article proceeds on the theory that, nevertheless, the Court did not intend to overthrow the government. It offers alternative readings of Arthrex—narrow and broad—to show how the case undermines the existing law of agency design. It then shows how a middle road could reconcile presidentialism with the Constitution, statutory law, and bureaucracy, enabling the Court to advance presidential administration without abandoning traditional principles of administrative law.

This alternative reads Arthrex through the lens of Myers v. United States and its foundational distinction between politics and administration. The approach should be congenial to presidentialists, for whom Myers remains a touchstone. And it offers a principled way to distinguish cases where the president may exercise control of the bureaucracy to realize policy goals from those where the law may appropriately limit the president to mere supervision in the name of good administration.

We sound a note of caution, however: Without care, Arthrex's theory of presidentialism could be far more transformative of the administrative state than many, including perhaps the Justices, are aware.

Download

Included in

Law Commons

Share

COinS