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Presidential Power

Readings and resources concerning presidential power.

President's Relationship with the Executive Branch

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Assigned Reading (Class #3, Jan. 13)

The appointment power provides one key tool—with clear constitutional roots in Art II., sec. 2—that enables presidents to steer and shape the direction of the executive branch. President-elect Trump and his transition team are currently deciding who to appoint to key executive positions. Trump’s administration must select more than 4,000 appointees—and more than 1,200 of those nominees will require Senate confirmation. Senate confirmation hearings just began this week on some of his early nominations, including his nomination for Attorney General. To get a sense of both the scope of the modern day nomination and confirmation process and how it is playing out as President-elect Trump prepares to enter the White House, please read the following news articles:

Annenberg Pub. Pol'y Ctr., Americans’ Knowledge of the Branches of Government Is Declining, Sept. 13, 2016.

ICF Consulting, The Reg Map: Informal Rulemaking (2003). Overview of administrative rulemaking—recommended for students who have not taken Administrative Law.

Bonnie Berkowitz & Kevin Uhrmacher, It's Not Just the Cabinet: Trump's Transition Team May Need to Find About 4,100 Appointees, Wash. Post, Dec. 5, 2016.

Kevin Uhrmacher, What Lies Ahead for Trump's Nominees, and How Democrats Helped Smooth the Way, Wash. Post, Jan. 9, 2017.

Liam Stack, N.A.A.C.P. President Arrested During Sit-In at Office of Jeff Sessions, N.Y. Times, Jan. 3, 2017.

The power to remove officers from their posts complements the power to appoint.  To explore the significance of the president’s removal powers and the unitary executive” theory in the context of a live, ongoing dispute, please read the following two sources:

PHH Corp. v. Consumer Financial Protection Bureau, No. 15-1177 (D.C. Cir. Oct. 11, 2016), link to court website. You can stop reading at page 13 of the opinion.

Aditya Bamzai, The President's Removal Power and the PHH Litigation, Notice & Comment (blog from Yale J. on Reg. and ABA Section of Admin. L. & Reg. Prac.) (Nov. 22, 2016)

Executive Orders serve as another major tool in the president’s toolkit. Essentially, Executive Orders are written directives issued to members of the executive branch, requiring them to take certain actions. Even though they are directed at government actors, they can impact private actors. For two concrete examples of what an Executive Order might look like, consider the following two Executive Orders:

  • Exec. Order 13,658 (Feb. 12, 2014) (Minimum Wage for Contractors), link on whitehouse.gov; link on federalregister.com
  • Exec. Order 12,866, 58 Fed. Reg. 51,735 (Sept. 30, 1993) (Regulatory Planning and Review), link on OMB site. This order, issued by President Clinton, was referenced in the Kagan article you read for the first class.

Another key tool that presidents use to direct and steer the executive branch involves oversight over the regulatory state. For our first class, you read a portion of an article by then-Professor and now Justice Elena Kagan, which described Reagan’s embrace of OMB review of agency regulations and Clinton’s reliance on directives and personal appropriation, as well as OMB review.  To bring you up to speed on what happened after Kagan’s article was published, please read the following two sources:

Kathryn A. Watts, Controlling Presidential Control, 114 Mich. L. Rev. 683, 692-706 (2016). The entire article is available on SSRN.

Elizabeth G. Porter and Kathryn A. Watts, Visual Rulemaking, 91 N.Y.U. L. Rev. 1183, 1218-1223 & 1233-1237 (2016). The entire article is available on SSRN.

Another major way in which presidents frequently shape policy involves setting enforcement priorities. For an example of what those can look like, consider the following two examples of memos issued by the Obama administration:

The so-called “Cole Memo”: Memorandum for All United States Attorneys: Guidance Involving Marijuana Enforcement, Aug. 29, 2013.

DHS's memo setting forth policies for the apprehension, detention, and removal of undocumented immigrants, Nov. 20, 2014.