Policing Executive Teamwork: Rescuing the APA from Presidential Administration

The Administrative Procedure Act (“APA”) does not apply to the President. In place of the well-known and well-defined procedural and substantive requirements of the APA, a more limited “nonstatutory” form of judicial review governs the President’s exercises of statutory authority. Scholars have devoted many pages to debating what form nonstatutory review of Presidential actions should take. But the President rarely acts alone. In the era of Presidential Administration, our nation’s chief executive spends much of her time telling bureaucrats what to do. In that context, this Article takes up an essential predicate question: When the President acts with or through an agency, how should a court distinguish between presidential actions that are exempt from the APA and agency actions to which the APA applies? This Article is the first to answer this important question. A study of the caselaw reveals a split. The “last act” camp views the rule that the APA doesn’t apply to the President primarily as a matter of finality. Unless the President takes the last action in a sequence, the APA applies. The “presidential nature” camp views the rule as more broadly tied to the separation of powers, such that any action that is presidential in nature (however that may be defined) is exempt from the APA. This Article argues that while the former approach is overly formalistic and may undermine the President’s authority, the latter approach poses an existential threat to the existing regime of judicial review of agency action. As the President increasingly exerts control over agencies, many significant executive branch actions start to look “presidential,” which could, in turn, limit judicial oversight. To save the APA from Presidential Administration (as well as from the Unitary Executive Theory), this Article argues that the President’s APA exemption should be limited to her direct actions under statutes that delegate authority to her by name. Otherwise, the APA should apply to agency actions, regardless of the President’s involvement. At the same time, courts applying “hard look” substantive review of agency action should give greater leeway to political input from the Executive. This will balance the desire for agencies to be politically accountable to the President with the fundamental requirement that agencies act in accordance with law.