When will social distancing end? The unfortunate truth is that we were already socially distant, and we were already suffering for it.
After eight years of President Obama’s administration, conservatives are much more likely to see executive power as a threat to the rule of law than a tool in service of it. Indeed, after 16 years of Presidents Bush and Obama, we are all well accustomed to hearing critics comparing modern Presidents to King George III. (They don’t mean it as a compliment.)
But it is a mistake to believe that presidential power is inherently and categorically a threat to the rule of law—quite the contrary. While it is true that presidential power unchecked by Congress, the courts, or the states can have baleful consequences, that says as much about the failings of the other branches in under-reaching as it does about executive overreach.
Simply put, the next President has it within his or her power to significantly promote the rule of law and good government. That was precisely Alexander Hamilton’s point, famously, in Federalist 70:
Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. (emphasis added)
The question, then, is not whether executive power is good or bad per se, but rather how executive power can be employed toward the proper ends, with proper checks and balances. Let me offer 10 examples of steps the next President could unilaterally and immediately take to promote the rule of law.
1. Rescind President Obama’s Worst Regulatory Excesses
A recent New York Times article, recounting the way that President Obama embraced executive power after fiercely criticizing his predecessor’s executive actions, suggested that this turn to unilateral regulatory action on his part was a legitimate response to a do-nothing Congress that had refused to make deals on greenhouse gas legislation and other major issues. This is nonsense. From the very beginning, President Obama threatened Congress with unilateral rulemakings as an alternative to legislation, and he assembled an administration that was ready, willing, and able to make good on his threats.
Two key examples are greenhouse gas regulations and “net neutrality” regulations. As to the former, the Obama administration began to move forward with its regulatory agenda on day one. As to the latter, President Obama promised as early as 2007—in an appearance on MTV, of all places—to move forward with a strong program of major Internet regulation. (I’ve recounted the histories of these two regulatory programs in National Affairs and The New Atlantis.) He made good on both: he has imposed a suite of immensely expensive greenhouse gas regulatory programs, culminating with the Environmental Protection Agency’s massive “Clean Power Plan”; and after the Federal Communications Commission twice formulated net neutrality policies that failed to pass judicial muster, he cajoled the FCC into taking the stunning step of asserting “Title II” common-carrier jurisdiction over broadband Internet, effectively announcing that the Internet will henceforth be treated like a 19th century railroad, in the Orwellian-named “Open Internet Order.” Both programs are now undergoing judicial review in the D.C. Circuit—the full court will hear the Clean Power Plan case in September; meanwhile, a three-judge panel of the court approved the FCC’s Internet-regulation program, and parties have asked the full court to rehear the case. (Disclosure: I am co-counsel to parties challenging the FCC.) Either or both cases could wind up in the Supreme Court.
But an “energetic” President can rescind regulations as easily as his predecessor promulgated them in the first place. Thus, the first step the next president can take to restore the rule of law would be to immediately freeze and begin the process of rescinding President Obama’s biggest—and most legally suspect—regulatory programs, particularly in immigration (for example, the nonenforcement of the Deferred Action for Parents of Americans and Lawful Permanent Residents), energy (the “Clean Power Plan” and the “Waters of the United States” rule), financial regulation, and health care.
2. Improve Administrative Transparency Through the Unified Agenda
To criticize President Obama’s most controversial rulemakings is not to criticize rulemaking per se. Congress has vested the President and agencies with immense regulatory power through myriad statutes. And unless one believes (as Justice Thomas and others do) that such rulemaking authorizations are inherently unconstitutional and illegitimate, then the question becomes how the President can best exercise those powers, subject to constitutional checks and balances by Congress, the courts, and the states.
One means toward that end is the set of executive orders governing White House management of agencies’ rulemakings—most importantly, Executive Order 12866, which subjects executive agencies to oversight by the White House’s Office of Information and Regulatory Affairs (OIRA). Among its many provisions, E.O. 12866 provides for a “Unified Regulatory Agenda” under which all executive agencies are required to “prepare an agenda of all regulations under development or review, at a time and in a manner specified by the Administrator of OIRA.” Agencies must also produce a “Regulatory Plan,” apprising the public of “the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form in that fiscal year or thereafter.”
The Unified Regulatory Agenda is a crucial tool in service of good government and the rule of law, because it is supposed to facilitate meaningful public input into the administrative process, which in turn helps to develop an administrative record that will promote efficacious judicial review.
At least, that’s the theory. In practice, the Unified Regulatory Agenda has become less and less useful, especially under President Obama. In fact, his administration simply refused to publish a Unified Agenda at all in 2012, breaking from the usual standard of semi-annual releases, in a transparent attempt to avoid election-year scrutiny of its immense regulatory agenda—a tactic that spurred strong criticism from Congress. (The Washington Post reported on aspects of the administration’s strategy a year later.)
The next President can singlehandedly fix this problem by recommitting to the Unified Regulatory Agenda’s central role in promoting good governance and the rule of law. Former OIRA Administrator Susan Dudley, the Congressional Research Service’s Curtis Copeland, and the American Action Forum’s Sam Batkins, among others, have all written eloquently on the need to reform and improve the Unified Agenda, and the next President should heed their advice. But the President must also appoint an OIRA Administrator willing and able to make good on those commitments.
3. Improve OIRA
Reforming the Unified Regulatory Agenda is but part of a much bigger project that the next President can and should undertake to promote the rule of law in the administrative state: namely, improving OIRA’s capacity to oversee and manage the immense universe of executive branch regulation.
OIRA’s best known responsibility is overseeing cost-benefit analyses for executive agencies’ most costly rules. But as Obama’s first OIRA Administrator, Cass Sunstein, highlighted in a 2013 Harvard Law Review essay, OIRA’s most important role is actually facilitating the inter-agency process, by which an agency’s major rules are subjected to scrutiny by other agencies, to ensure that no one agency’s single-minded pursuit of a regulatory goal is allowed to trample to authority or policies of the administration as a whole. Moreover, OIRA has an open-door policy, mandated by E.O. 12866, which allows the public a final (nominal) opportunity to challenge a proposed rule’s legality or propriety when an agency’s rulemaking process nears conclusion.
This framework, however “wonky” it may be, goes to the heart of the energetic executive’s power to ensure “steady administration of the laws,” because it allows the White House to oversee the immense administrative state’s regulatory efforts, and to ensure that power over (and responsibility for) regulation ultimately lies with the President. Thus, a President committed to the rule of law and good government can and must give OIRA maximum legal and practical power (and budgetary resources, which OIRA too long has lacked) to perform its oversight role, and to give the public a truly meaningful opportunity to challenge rules.
4. Assert More Power Over Independent Agencies
In all of my discussion of the White House and OIRA, I’ve referred not just to agencies generally, but to executive agencies. That is because the executive orders establishing White House oversight of the administrative state expressly exclude “independent agencies,” such as the FCC, the Consumer Financial Protection Bureau (CFPB), the Securities and Exchange Commission, the Board of Governors of the Federal Reserve System, and many other agencies, as listed at 44 U.S.C. § 3502(10).
Independent agencies have enjoyed this exemption ever since President Reagan first established the OIRA framework in 1981—not because the Reagan administration doubted that the President has constitutional power over “independent agencies,” but rather because the Reagan administration believed in 1981 that asserting presidential power over independent agencies simply wasn’t worth the political trouble, given how relatively unimportant such agencies were at the time. (I once detailed that history in National Affairs.)
Even if that were true in 1981, it is surely isn’t 35 years later. Today independent agencies wield enormous power, especially in the aftermath of the Dodd-Frank financial reforms of 2010, which established the independent Consumer Financial Protection Bureau and turbocharged longstanding independent agencies like the SEC, the Federal Reserve Board, and the Commodity Futures Trading Commission. In just its short life so far, the CFPB has already become a case study in reckless, unchecked, unlawful regulatory power, spurring criticism by congressional Republicans and Democrats alike. (Disclosure: I am co-counsel in a constitutional challenge to the CFPB.) The agency’s massive collection of consumer financial data is particularly troubling.
It’s well past time, as I have previously written, for the President to assert much greater oversight power over the independent agencies. Various scholars on the Left as well as the Right have suggested that this can be done without challenging Humphrey’s Executor v. United States, the 1935 Supreme Court decision that authorized creation of independent agencies in the first place.
5. Issue More Guidance (and Accept the Consequences)
The Obama administration has attracted much criticism for relying heavily on informal “guidance” as a means for imposing regulatory requirements on the public without the formalities of the notice-and-comment process required for full rulemakings. From the Obama administration’s policies on not enforcing immigration laws, to the CFPB’s regulation of auto loans, to the FDA’s myriad “guidance” documents, to the “Dear Colleague Letters” that the Education Department issued to schools to impose its pro-transgender policies, various forms of “regulatory dark matter” (to borrow Wayne Crews’s felicitous phrase) have attracted much deserved criticism.
But on the question of guidance—as with the question of executive power generally—we must be careful not to throw the baby out with the bathwater. “Guidance” becomes a problem when agencies rely on it as a cheap substitute for notice-and-comment processes, and when courts give it undue “deference.” Those are problems that can and should be solved—but without proscribing “guidance” in general. Because when agencies issue guidance, they help to inform the public as to how they intend to enforce the law.
With respect to the rule of law, such guidance is a good thing when the alternative is opaque case-by-case decisionmaking. Of course, a President truly committed to the rule of law would rely as much as possible on notice-and-comment rulemaking, as required by the Administrative Procedure Act and other statutes, to flesh out an administration policies. But in the gaps left by those rulemakings, agencies should provide as much guidance as possible.
6. Be Less Capricious and More Transparent in “Waiving” Laws
Perhaps the most challenging aspect of President Obama’s regulatory onslaught has been that so much of it begins with a well-established precedent, but then proceeds to apply that precedent in radical ways. His penchant for “waiving” laws is the best example of this. The President’s power to refuse to enforce unconstitutional statutes is almost universally accepted; hardly anyone would argue that the President is obligated to fully enforce every single statute. (Except, that is, for a prominent American Bar Association task force that argued ludicrously to the contrary during the George W. Bush administration.) So, too, is the President’s “prosecutorial discretion” in allocating scarce agency resources among competing priorities.
The President’s enforcement discretion is a constitutional safety valve, a narrow exception to the general rule that President execute statutes. But in recent years the exception has too often swallowed the rule, with President Obama’s administration taking unprecedented steps to refuse to enforce immigration laws or drug laws, or ignoring parts of the Clean Air Act or Affordable Care Act that complicate his agencies’ broader regulatory agendas. (As to those last two examples, the Supreme Court struck down the former but facilitated the latter.) Taken to its extreme, this course of action replaces the rule of law with what Richard Epstein rightly criticizes as “government by waiver.”
A President committed to the rule of law must elucidate the constitutional and prudential standards by which his administration will refuse to enforce statutes. Again, such enforcement discretion is not just inevitable, it is affirmatively good in our constitutional order—in its proper, limited role. But in order to ensure that this exceptional power does not become the “new normal,” and to instill public confidence that the President is not waiving laws on an ad hoc basis to rewrite national policy or to benefit the President’s political or ideological friends, the President should do as much as possible, and as soon upon entering the White House as possible, to set clear, neutral standards for nonenforcement.
No President can plausibly feign dedication to the rule of law without ending this practice. The next President cannot truly commit to the rule of law without renouncing President Obama’s approach—generally and specifically, beginning with the Department of Homeland Security’s policy of systematic immigration nonenforcement. A true rule-of-law President would immediately renounce DHS’s policy and the Justice Department analysis written in support of it. Even if immigration policy requires further guidance as to how to marshal scarce federal resources, this particular approach has been utterly discredited by its sheer brazenness, exemplified by the President’s eagerness to declare that he was pursuing this policy as a substitute for legislation over Congress’s objection—indeed, to declare emphatically to his political supporters that “I just took an action to change the law.” His successor should use the full process of notice-and-comment rulemaking to set the administration’s policy transparently, accountably, and lawfully.
7. Stop Stealing Money from Congress
The Constitution vests Congress, not the President, with the powers to tax and spend. And with good reason: in Federalist 58, James Madison wrote that Congress’s “power of the purse” is “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” First and foremost, the Framers intended for this power to allow Congress to resist “all the overgrown prerogatives of the other branches of the government,” just as it had done in the British Constitution.
But precisely because Congress’ power of the purse is intended to check the Executive Branch, one cannot be surprised by the Obama administration’s systematic efforts to evade Congress in the collecting and spending of money. From Justice Department settlements that route millions of dollars to favored political groups, to Health and Human Services Department efforts to route billions dollars to insurance companies in violation of federal law, the Executive Branch has become all too cavalier in violating the Constitution’s fundamental commitment of the power of the purse to Congress.
8. Put Ethics First—and Empower a Special Prosecutor to Make Sure of It
If there is one book that a new President should read, it’s Terry Eastland’s Energy in the Executive (1992). Eastland’s key insight wasn’t the presidency’s strength but rather its vulnerability. For all of the powers a President enjoys under the Constitution, he will lose the ability to fully exercise those powers if he allows his administration to undermine itself through ethical lapses. Eastland learned this firsthand, serving in the Reagan Justice Department as the Iran-Contra scandal bogged down the entire administration during Reagan’s final years in office. The American public saw the same dynamic play out later under President Clinton and in fact every administration thereafter including the present one.
Simply put, if the next President wants to be able to fully and energetically exercise his constitutional power to take care that the laws be faithfully executed, and to serve as a reliable check and balance against Congress, the courts, and the states, then he must ensure that his administration upholds the highest ethical standards.
To that end, the President should ensure that the Justice Department includes an Office of Special Prosecutor that is fully empowered to investigate and prosecute, or administratively punish, unlawful or unethical actions within the administration itself. To be clear, this is an office that the President must construct, and the Special Prosecutor must be fully accountable to the President (for the reasons so eloquently stated by Justice Scalia’s dissenting opinion Morrison v. Olson (1988)). And more immediately, the President and his Justice Department must take care not to allow the Office of Special Prosecutor to be reduced to a tool for political score-settling or the “criminalization of politics.”
But the challenge of structuring and maintaining the Office of Special Prosecutor must not become an excuse for avoiding this responsibility altogether. The President’s success will ultimately depend on the administration’s ability to maintain the highest ethical standards.
9. Cure the “Ferguson Effect”
My first eight suggestions focused on the President’s role as chief administrator of the federal government, and each is informed greatly (to say the least) by America’s experience under President Obama. But perhaps the most immediately significant—and socially ruinous—action by the White House’s current occupant had nothing to do with the federal bureaucracy. President Obama’s worst legacy is actually found in American cities, where presidential encouragement of anti-cop conflagrations has directly undermined law and order in those cities, ultimately hurting most those he purports to care most about: poor and minority urban families.
No one has documented this better than the Manhattan Institute’s Heather MacDonald, in her new book, The War on Cops, and in her countless articles in City Journal. Even though crime rates are decreasing nationwide, they are actually increasing in cities. And as MacDonald explained most recently in a powerful Wall Street Journal essay, this reflects urban cops’ growing hesitation to undertake the difficult work that is too often denounced as racist oppression by “the country’s political and media elites,” who “have relentlessly accused cops of bias when they police inner-city neighborhoods.” She calls this the “Ferguson Effect”: in the aftermath of anti-cop riots in major cities, police are withdrawing from the basic responsibilities of both enforcing the law and maintaining order. (The latter being no less important than the former, as George L. Kelling and James Q. Wilson famously explained in “Broken Windows.”)
In parts of President Obama’s own city, Chicago, the loss of life is appalling. Which is what makes President Obama’s own reckless rhetorical contributions all the more troubling. He has done as much as anyone to undermine public confidence in local law enforcement, and to inflame public passion against police officers—all part of a much broader environment in which police officers have become the target of horrific violence.
A President should, of course, speak out against genuine examples of wrongdoing by the police, and empower the Justice Department to prosecute violations of federal civil rights laws. But precisely because the presidency is vested with such immense substantive and rhetorical power, a President committed to the rule of law must take care not to hastily cast aspersions on police officers, or to inflame the public passions against law enforcement. The “blessings of liberty” are secure only when government is capable of enforcing the law. It is bad enough when political activists try to score political points against the police. But when a President does it, the result is not only political turmoil—ultimately it is the erosion of the rule of law.
10. Get the Presidential Oath of Office Right—At Your Inauguration and for the Ensuing Four Years
My last suggestion is not just symbolic but substantive. Come January 20, the next President will swear the same oath that all of his predecessors swore, an oath required by the Constitution: to “faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” If the next President truly cares about the rule of law, then I highly recommend that he or she get the oath right.
I’m only half kidding. In 2009, President Obama and Chief Justice Roberts famously flubbed the oath’s “faithfully execute” line. Eight years later, the error seems all too ironic, in light of President Obama’s controversial assertions of executive power, especially in terms of refusing to execute laws of the United States. If there is one line that the next President-elect wants to practice a few extra times between November and January, then I highly recommend that one in particular.
But jokes aside, a President committed to the rule of law must begin by thinking seriously about what it means to “faithfully execute” the office, or (as required by another provision of the Constitution) to “take care that the laws be faithfully executed,” and to consciously make those constitutional obligations the bedrock foundation and central organizing theme of his or her administration.
The best way to wrap up this discussion is to say: let’s not be naïve. Presidents are not likely to be eager to restrain their own hand. We can’t count on this. And so the job falls first and foremost to Congress—members of the party in opposition, but also members of the President’s own party —to direct the nation’s political energy toward demanding these sorts of reforms.
The presidency occupies a challenging place in government. On the one hand, our constitutional system largely assumes that the President won’t check himself; only the ambition of the other branches will serve as a serious check. On the other hand, the Constitution does oblige the President to “faithfully” execute the laws, a requirement obliging the President to temper his own ambition and, largely, put the Constitution’s and Congress’ directives ahead of his own policy preferences. Of course, if a President were to be too willing to tie the presidency’s hands, then ruinous consequences of an entirely different sort would follow. (Which is to say, Hamilton surely would not have been surprised to see what consequences would follow from Jimmy Carter’s recklessly weak presidency.) This is precisely what Chief Justice Roberts and his colleagues on the Court recognized in a 2010 decision, warning that “perhaps an individual President might find advantages in tying his own hands,” but “[h]e cannot, however, choose to bind his successors by diminishing their powers, nor can he escape responsibility for his choices by pretending that they are not his own.”
Ultimately, the answer lies with members of the President’s own political party—in Congress, and also in the 50 states. If the President’s own co-partisans see that their interests are primarily rooted in their parts of the government, not in the Democratic Party or the Republican Party—that is, in Madison’s famous words, if the people force them to conclude that “the interest of the man” is “connected with the constitutional rights of the place”—then the President might herself conclude that some of these measures are warranted.
Which is to say (to borrow another line from Madison), responsibility for this lies ultimately with “the people themselves.” The presidency can be a sword wielded in favor of the rule of law and good government, but only if we are willing to undertake the work required for it—not just directly through presidential politics, but indirectly through Congress, the courts, and the states. It will be a generational task.