Article

Diversity by Facially Neutral Means

The decision in Students for Fair Admissions v. President & Fellows of Harvard College (SFFA), invalidating the use of race in college admissions, reignites a pressing and critical question. Is the deliberate use of facially neutral means to achieve racial diversity constitutionally permissible? The problem is that current equal protection doctrine suggests conflicting answers to this question. On one hand, cases addressing the use of explicit racial classifications state clearly that the use of race is impermissible if diversity could be achieved by facially neutral means. These statements suggest that universities and others may adopt such means. On the other hand, when state actors adopt facially neutral policies that have a disparate negative impact on the basis of race or sex, these policies are impermissible if enacted specifically because they will have this effect. This part of the doctrine suggests that state actors may not adopt facially neutral means of achieving racial diversity if they do so in order to achieve this result.

This Article resolves that enduring puzzle. It does so by explaining that equal protection doctrine contains two distinct commitments: a prohibition on race-based differential treatment and a prohibition on governmental actors intending to harm. The claim that the combination of these commitments—the intent to select on the basis of race—is also forbidden rests on a mistake. Because these two doctrinal threads stem from different normative foundations, they cannot be combined. In addition, while intentions do matter within equal protection doctrine, that observation is overstated. It is only the intent to harm that is constitutionally relevant. Facially neutral policies aimed at increasing racial diversity lack an intent to harm and are therefore permissible.

Justice Kagan: So suppose that . . . there’s a 10 percent plan or something like that, and part of the justification is socioeconomic diversity and another part of the justification is we’ll also get more racial diversity in this manner. . . . Is that permissible?

Mr. Strawbridge: Well, like I said, it—it’s a different analysis when the . . . mechanism that’s chosen is not a racial classification itself, but I do think that this Court’s precedents—

Justice Kagan: Well, I guess the question is why—why is that true. A lot of our constitutional doctrine suggests that it’s not a different analysis. In other words, one way you can offend the Constitution is by using an impermissible classification. Another way you can offend the Constitution is by devising a proxy mechanism with the purpose of . . . achieving the same results that the impermissible classification would.

Mr. Strawbridge: Right.1 1.Transcript of Oral Argument at 13–14, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (No. 21-707).Show More

Introduction

The Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA),2 2.143 S. Ct. 2141 (2023).Show More striking down the use of race-based classifications in university admissions, sets up an important question.3 3.The use of race in admissions was invalidated because the interests allegedly served by student body diversity are too difficult to measure and because the means adopted to achieve these ends are inapt. Id. at 2166–67. Additionally, in the Court’s view, the policies at issue rely on racial stereotypes and harm those not preferred by the policies. Id. at 2168–70. Chief Justice Roberts’s opinion for the Court does not, however, explicitly overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and explicitly leaves open the question of whether the consideration of race is also impermissible in the context of admissions at the military academies. SFFA, 143 S. Ct. at 2166 n.4 (“This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”).Show More May universities adopt “facially neutral”4 4.The term “facially neutral” refers to a law or policy that does not explicitly classify on protected grounds.Show More selection policies that will predictably increase racial diversity if they do so because these policies are likely to have this result?5 5.The Court in SFFA considered both a constitutional claim and a statutory claim but viewed the prohibition on race discrimination contained in Title VI of the Civil Rights Act of 1964 as equivalent to the constitutional requirements of equal protection. For this reason, the result of the constitutional analysis will also have implications for non-state actors. See SFFA, 143 S. Ct. at 2156 n.2 (explaining that the Court would “evaluate Harvard’s admissions program under the standards of the Equal Protection Clause” because “discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI” (quoting Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003))).Show More Such policies might include admissions guarantees by a state university to the top ten percent of each high school senior class in the state, as Justice Kagan noted in the oral argument of the University of North Carolina case,6 6.See Transcript of Oral Argument at 13–14, SFFA, 143 S. Ct. 2141 (No. 21-707).Show More or “plus” factors for students who are first-generation college students, who attend under-resourced schools, or whose families are poor or are the descendants of enslaved people,7 7.See id. at 13, 43–45.Show More among others.

It may seem like the answer is an obvious “yes,” as Mr. Strawbridge, the lawyer for Students for Fair Admissions, initially suggested.8 8.Id. at 13. Mr. Strawbridge seems to equivocate in his answer to Justice Kagan’s question. He initially seems to say that such policies would be permissible but ultimately does say that if the university adopted the policy at least in part because it would increase diversity and would not have adopted it without this reason, then the facially neutral policy would be impermissible. Id. at 16 (“[I]f the only reason to do it is through the narrow lens of race and there is no other race-neutral justification for it that the government can come forward and demonstrate that would have led it to adopt that policy anyway, I think . . . that’s the only scenario where it would create problems under the Court’s precedent.”).Show More After all, in the affirmative action cases that predate the current decision, narrow tailoring was assessed by reference to whether race-neutral means of achieving diversity were available.9 9.See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n.6 (1986); Grutter v. Bollinger, 539 U.S. 306, 340 (2003) (“We are satisfied that the Law School adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission.”); id. at 342 (“Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop.”).Show More Indeed, the Justices who dissented in those previous cases did so in part on the grounds that such alternatives were present, in their view.10 10.See, e.g., Fisher v. Univ. of Tex. at Austin (Fisher II), 579 U.S. 365, 426–27 (2016) (Alito, J., dissenting) (noting that if the University of Texas at Austin adopted race-neutral policies it could achieve diversity “without injecting race into the process”); Grutter, 539 U.S. at 394–95 (Kennedy, J., dissenting) (“Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. . . . Other programs do exist which will be more effective in bringing about the harmony and mutual respect among all citizens that our constitutional tradition has always sought. They, and not the program under review here, should be the model, even if the Court defaults by not demanding it.”); Gratz, 539 U.S. at 297 (Souter, J., dissenting) (“Drawing on admissions systems used at public universities in California, Florida, and Texas, the United States contends that Michigan could get student diversity in satisfaction of its compelling interest by guaranteeing admission to a fixed percentage of the top students from each high school in Michigan. . . . [T]here is nothing unconstitutional about such a practice . . . .”).Show More If the explicit use of race is not narrowly tailored to achieve the educational benefits of diversity when workable race-neutral means exist to achieve the same result, surely the deliberate use of such race-neutral means is constitutionally permissible.11 11.Judge Heytens makes precisely this argument in response to the claim that the deliberate use of race-neutral polices to increase racial diversity transforms the policy into one that is race-based. See Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 891 (4th Cir. 2023) (Heytens, J., concurring) (emphasizing that “it would be quite the judicial bait-and-switch to say such race-neutral efforts are also presumptively unconstitutional” after spending “decades telling school officials they must consider race-neutral methods for ensuring a diverse student body before turning to race-conscious ones”), cert. denied, No. 23-170, 2024 WL 674659 (U.S. Feb. 20, 2024).Show More

And yet, scholars have long wondered about the constitutional permissibility of such policies.12 12.See, e.g., Brian T. Fitzpatrick, Can Michigan Universities Use Proxies for Race After the Ban on Racial Preferences?, 13 Mich. J. Race & L. 277, 283 (2007) (arguing that “antidiscrimination laws have been [and should be] interpreted to prohibit not only facial classifications, but also neutral classifications that were adopted to serve as proxies for the facially-prohibited one”); Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493, 496 (2003) (exploring the possibility that disparate impact liability mandated by Title VII may violate the constitutional guarantee of equal protection because that statute was adopted with the purpose of redressing racial inequality); Kim Forde-Mazrui, The Constitutional Implications of Race-Neutral Affirmative Action, 88 Geo. L.J. 2331, 2364–65, 2377 (2000) (arguing that race-neutral affirmative action may be unconstitutional if motivated by the same purposes as affirmative action that relies on racial classification). See generally Larry Alexander & Kevin Cole, Discrimination by Proxy, 14 Const. Comment. 453 (1997) (assuming that the deliberate use of a facially neutral trait to select for people with a protected trait violates the anti-discrimination principle and arguing that equal protection doctrine is internally conflicted).Show More To see the argument for this position, imagine a hypothetical case in which a university admissions program made minority race a minus rather than a plus. After being sued for race discrimination, the university stops using race explicitly in its admissions process. Instead, suppose it adopts a policy disfavoring people from particular zip codes. Further, suppose the university does so because race correlates with zip code, so the university can achieve the same result as it had by explicitly disfavoring people of particular races. If the deliberate use of zip codes to exclude Black students would be impermissible, then should the deliberate use of class rank to include Black students be treated similarly? It is precisely this logic that Justice Kagan referred to in her question to Mr. Strawbridge.

The argument for treating these hypothetical cases the same seems plausible for two reasons. First, when facially neutral policies disadvantage women or racial minorities, the Court evaluates these policies by reference to the reasons for which they were adopted. If the state chose the facially neutral policy “because of” its effect, then the policy is treated as if it contains an explicit classification.13 13.Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (emphasis added) (requiring a showing that a defendant discriminated “‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group” in order to impose liability). The Feeney Court upheld Massachusetts’s preference for veterans in civil service positions, despite the fact that the policy disproportionately excluded women, because the policy was not adopted in order to exclude women. Id. at 275. The clear implication of this holding is that had the policy been adopted in order to exclude women, it would be impermissible.Show More Second, when explicit classifications are used, the Court has treated the fact that the policy was well-motivated as legally insignificant, and has treated a benefit on the basis of race in the same manner as a burden.14 14.The Chief Justice emphasizes this fact in SFFA. See SFFA, 143 S. Ct. 2141, 2175 (2023) (critiquing the dissent by asserting that “[w]hile the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue”).Show More For example, the explicit use of race in higher education admissions must pass strict scrutiny even when the policy is adopted for benign or even laudable reasons.15 15.See id. at 2166; Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 298–99 (1978) (holding that whether a racial classification is used for benign purposes or invidious ones is not relevant and instead that classifications that “touch upon an individual’s race or ethnic background” all require the application of strict scrutiny).Show More Moreover, in SFFA, Chief Justice Roberts emphasized that university admissions is a “zero-sum” enterprise, and so, in his view, giving a plus to some applicants necessarily functions as a minus to others.16 16.SFFA, 143 S. Ct. at 2169 (“A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”).Show More According to the combined logic of these two features of the doctrine, the deliberate use of class rank to select for minority applicants would seem to be constitutionally impermissible.

The Court’s opinion in SFFA itself does not directly address the question of whether universities may use race-neutral means to achieve diversity.17 17.In another case, the Chief Justice has suggested that he would find such motivation suspect. See, for example, Chief Justice Roberts’s comment in Parents Involved,where he opined that “[r]acial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’” which suggests that he might find intending to select for people on the basis of race to also be a patently unconstitutional motivation. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 732 (2007).Show More However, Justice Kavanaugh, concurring, indicated that he would find it constitutional for a university to do so: “[G]overnments and universities still ‘can, of course, act to undo the effects of past discrimination in many permissible ways that do not involve classification by race.’”18 18.SFFA, 143 S. Ct. at 2225 (Kavanaugh, J., concurring) (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 526 (1989) (Scalia, J., concurring)).Show More And Justice Gorsuch noted that “Harvard could nearly replicate the current racial composition of its student body without resorting to race-based practices if it: (1) provided socioeconomically disadvantaged applicants just half of the tip it gives recruited athletes; and (2) eliminated tips for the children of donors, alumni, and faculty.”19 19.Id. at 2215 (Gorsuch, J., concurring).Show More The implication of this comment is that it would be permissible for Harvard to do so, even if it is motivated to adopt these policies to replicate the current racial composition of the class. Lastly, Justice Thomas, concurring, used language that suggests that he too would find the use of race-neutral policies to achieve a diverse student body permissible. He wrote: “Race-neutral policies may thus achieve the same benefits of racial harmony and equality without any of the burdens and strife generated by affirmative action policies.”20 20.Id. at 2206 (Thomas, J., concurring).Show More That said, none of these statements specifically address whether race-neutral policies deliberately adopted to achieve racial diversity would be constitutional.21 21.What Justice Thomas would say about such a case is especially uncertain, as other parts of his concurring opinion suggest that he finds questionable the very idea that racial diversity is important in higher education. See id. at 2207.Show More

The argument that they are not constitutional has recently gained traction. For example, it has already appeared in debates about the admissions criteria for public magnet schools.22 22.For a recent analysis, see Sonja Starr, The Magnet School Wars and the Future of Colorblindness, 76 Stan. L. Rev. 161, 163–64 (2024). Show More In Coalition for TJ v. Fairfax County School Board, a change from one facially neutral admissions policy to another at the Thomas Jefferson High School for Science and Technology (“TJ”) was challenged on the grounds that the change was motivated by a desire to “racially balance” the school.23 23.See Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 871–72, 875–76 (4th Cir. 2023). Judge Rushing, dissenting, argued that a “school board’s motivation to racially balance its schools, even using the means of a facially neutral policy, must be tested under exacting judicial scrutiny.” Id. at 893 (Rushing, J., dissenting).Show More While one could interpret that claim as alleging that the School Board intended to exclude Asian students, which would be prohibited, it could also be understood as a claim that the School Board impermissibly changed its policy in order to include more Black and Latinx students. In its petition for certiorari, the petitioners fused these questions and treated these claims as equivalent.24 24.See Petition for Writ of Certiorari at 13, Coal. for TJ, No. 23-170 (U.S. Aug. 21, 2023) (styling their first reason for granting the petition in these terms: “The Use of Facially Race-Neutral Admissions Criteria to Achieve Racial Balance Presents an Unsettled Question of National Importance”).Show More To date, this argument has not succeeded,25 25.The majority opinion in Coalition for TJ does not specifically address this issue. See generally Coal. for TJ, 68 F.4th 864. In Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, the plaintiffs unsuccessfully argued that “where the government shifts to a policy that treats applicants differently based on a factor that is designed to operate as a proxy for race, it becomes suspect.” 627 F. Supp. 3d 253, 263–65 (S.D.N.Y. 2022).Show More but it has not been repudiated, either.26 26.See, for example, Lewis v. Ascension Parish SchoolBoard, 662 F.3d 343, 352 (5th Cir. 2011) (per curiam), in which the Fifth Circuit reversed the lower court’s summary judgment and remanded the case in light of the existence of genuine issues of material fact regarding whether a racially discriminatory purpose and effect were present. Then-Chief Judge Jones, concurring, asserted that geographic boundaries used in student assignment are not racially neutral if adopted for the purpose of achieving racial balance in the schools. Id. at 354 (Jones, C.J., concurring) (“Streets . . . may well be racial proxies because the district or its agents apparently knew and used the racial composition of the people living on those streets to pursue racial balancing.”). Following remand to the district court, the Fifth Circuit upheld the finding of no constitutional violation without reaching the question of whether discriminatory intent was present. Lewis v. Ascension Parish Sch. Bd., 806 F.3d 344, 358, 363 (5th Cir. 2015).Show More And, while the Supreme Court declined to grant certiorari in this case, its reasons for doing so are unknown.27 27.Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 23-170, 2024 WL 674659, at *1 (U.S. Feb. 20, 2024). Justice Alito, joined by Justice Thomas, dissented from the denial of certiorari but did so for reasons unrelated to the question regarding what intentions are prohibited under equal protection doctrine. Id. at *1, 5 (Alito, J., dissenting from the denial of certiorari).Show More Perhaps the Court approved of the reasoning of the U.S. Court of Appeals for the Fourth Circuit that the use of facially neutral policies to increase diversity is permissible, or perhaps the Court was simply not yet ready to take this issue on.

This unresolved question comes with high stakes. If the Court decides that facially neutral policies adopted to increase racial diversity in public magnet schools are unconstitutional, many policies, both within the education context and beyond it, would also be at risk. For example, suppose a universal pre-kindergarten program is adopted in order to reduce racial disparities in educational achievement. Or suppose a city adopts a government-funded doula program in order to reduce the racial disparity in maternal death rates.28 28.See, e.g., Zeina Mohammed, Black Women Are More Likely to Die During Pregnancy. A Local Doula Program Aims to Change That, Bos. Globe (Dec. 30, 2022, 5:14 PM), https://www.bostonglobe.com/2022/12/30/metro/mass-general-brighams-doula-program-aim‌s-close-racial-disparities-childbirth/; Working Together to Reduce Black Maternal Mortality, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/womens-health/features/matern‌al-mortality.html [https://perma.cc/4TR9-VV7E] (last updated Apr. 8, 2024).Show More If the intention to affect which racial group is most benefited by a policy constitutes an impermissible intent, these programs would be subject to strict scrutiny. While such policies could be adopted for alternative reasons, unrelated to the race of likely beneficiaries, if they would not have been adopted for these alternative reasons alone, then the constitutional problem remains.29 29.Where a constitutionally impermissible reason is a motivating reason for facially neutral state action, the burden shifts to the state to show that the same decision would have been reached absent the impermissible motivation. If the state is unable to do so, the facially neutral policy is subject to heightened review. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66, 270 n.21 (1977).Show More

Moreover, the implications of invalidating facially neutral policies enacted to improve racial diversity or reduce racial disparities likely apply beyond the constitutional context. Because the Court in SFFA treats the requirements of Title VI of the Civil Rights Act of 1964 as equivalent to the requirements of equal protection, prohibitions on the deliberate adoption of facially neutral means of achieving diversity could also extend to non-state actors receiving federal funds.30 30.See supra note 5.Show More

This Article thus addresses a pressing and critical question. To restate it in terms of the two hypothetical policies mentioned earlier, we need to know: What, if anything, distinguishes the use of class rank to include minority students from the use of zip codes to exclude them? In the following Parts, I provide a novel answer to that enduring puzzle. The answer, which I call the “Distinct Threads” approach, rests on the claim that though equal protection doctrine prohibits race-based differential treatment and prohibits actions taken with impermissible intent, these two proscriptions rest on different foundations and cannot be combined. In addition, I argue that the focus on impermissible intent is poorly understood. What the doctrine prohibits is only actions that are motivated by the harm they cause to individuals or groups. Facially neutral policies that are deliberately adopted in order to increase racial diversity neither involve race-based differential treatment, nor are they motivated by the desire to cause harm. As a result, these actions are permissible.

The argument for this solution proceeds as follows. Part I lays out the question this Article investigates and describes the three conceptually available answers. In addition, Part I describes how other scholars have analyzed the question and explains why their answers are unsatisfactory. Part II describes my proposed solution. It argues for the claim that the prohibitions contained within equal protection doctrine cannot be combined and diagnoses why the prohibition on invidious intent has been misunderstood. Part III elaborates this account, explaining why harm must be assessed objectively and describing how current doctrine supports the view that racial isolation is a harm. In addition, Part III discusses the implications of this account for our understanding of the term “race conscious” and for how courts ought to evaluate implicit bias. A brief conclusion follows.

  1.  Transcript of Oral Argument at 13–14, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (No. 21-707). ↑
  2.  143 S. Ct. 2141 (2023). ↑
  3.  The use of race in admissions was invalidated because the interests allegedly served by student body diversity are too difficult to measure and because the means adopted to achieve these ends are inapt. Id. at 2166–67. Additionally, in the Court’s view, the policies at issue rely on racial stereotypes and harm those not preferred by the policies. Id. at 2168–70. Chief Justice Roberts’s opinion for the Court does not, however, explicitly overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and explicitly leaves open the question of whether the consideration of race is also impermissible in the context of admissions at the military academies. SFFA, 143 S. Ct. at 2166 n.4 (“This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”). ↑
  4.  The term “facially neutral” refers to a law or policy that does not explicitly classify on protected grounds. ↑
  5.  The Court in SFFA considered both a constitutional claim and a statutory claim but viewed the prohibition on race discrimination contained in Title VI of the Civil Rights Act of 1964 as equivalent to the constitutional requirements of equal protection. For this reason, the result of the constitutional analysis will also have implications for non-state actors. See SFFA, 143 S. Ct. at 2156 n.2 (explaining that the Court would “evaluate Harvard’s admissions program under the standards of the Equal Protection Clause” because “discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI” (quoting Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003))). ↑
  6.  See Transcript of Oral Argument at 13–14, SFFA, 143 S. Ct. 2141 (No. 21-707). ↑
  7.  See id. at 13, 43–45. ↑
  8.  Id. at 13. Mr. Strawbridge seems to equivocate in his answer to Justice Kagan’s question. He initially seems to say that such policies would be permissible but ultimately does say that if the university adopted the policy at least in part because it would increase diversity and would not have adopted it without this reason, then the facially neutral policy would be impermissible. Id. at 16 (“[I]f the only reason to do it is through the narrow lens of race and there is no other race-neutral justification for it that the government can come forward and demonstrate that would have led it to adopt that policy anyway, I think . . . that’s the only scenario where it would create problems under the Court’s precedent.”). ↑
  9.  See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n.6 (1986); Grutter v. Bollinger, 539 U.S. 306, 340 (2003) (“We are satisfied that the Law School adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission.”); id. at 342 (“Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop.”). ↑
  10.  See, e.g., Fisher v. Univ. of Tex. at Austin (Fisher II), 579 U.S. 365, 426–27 (2016) (Alito, J., dissenting) (noting that if the University of Texas at Austin adopted race-neutral policies it could achieve diversity “without injecting race into the process”); Grutter, 539 U.S. at 394–95 (Kennedy, J., dissenting) (“Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. . . . Other programs do exist which will be more effective in bringing about the harmony and mutual respect among all citizens that our constitutional tradition has always sought. They, and not the program under review here, should be the model, even if the Court defaults by not demanding it.”); Gratz, 539 U.S. at 297 (Souter, J., dissenting) (“Drawing on admissions systems used at public universities in California, Florida, and Texas, the United States contends that Michigan could get student diversity in satisfaction of its compelling interest by guaranteeing admission to a fixed percentage of the top students from each high school in Michigan. . . . [T]here is nothing unconstitutional about such a practice . . . .”). ↑
  11.  Judge Heytens makes precisely this argument in response to the claim that the deliberate use of race-neutral polices to increase racial diversity transforms the policy into one that is race-based. See Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 891 (4th Cir. 2023) (Heytens, J., concurring) (emphasizing that “it would be quite the judicial bait-and-switch to say such race-neutral efforts are also presumptively unconstitutional” after spending “decades telling school officials they must consider race-neutral methods for ensuring a diverse student body before turning to race-conscious ones”), cert. denied, No. 23-170, 2024 WL 674659 (U.S. Feb. 20, 2024). ↑
  12.  See, e.g., Brian T. Fitzpatrick, Can Michigan Universities Use Proxies for Race After the Ban on Racial Preferences?, 13 Mich. J. Race
    & L

    . 277, 283 (2007) (arguing that “antidiscrimination laws have been [and should be] interpreted to prohibit not only facial classifications, but also neutral classifications that were adopted to serve as proxies for the facially-prohibited one”); Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493, 496 (2003) (exploring the possibility that disparate impact liability mandated by Title VII may violate the constitutional guarantee of equal protection because that statute was adopted with the purpose of redressing racial inequality); Kim Forde-Mazrui, The Constitutional Implications of Race-Neutral Affirmative Action, 88 Geo. L.J. 2331, 2364–65, 2377 (2000) (arguing that race-neutral affirmative action may be unconstitutional if motivated by the same purposes as affirmative action that relies on racial classification). See generally Larry Alexander & Kevin Cole, Discrimination by Proxy, 14 Const. Comment. 453 (1997) (assuming that the deliberate use of a facially neutral trait to select for people with a protected trait violates the anti-discrimination principle and arguing that equal protection doctrine is internally conflicted). ↑

  13.  Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (emphasis added) (requiring a showing that a defendant discriminated “‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group” in order to impose liability). The Feeney Court upheld Massachusetts’s preference for veterans in civil service positions, despite the fact that the policy disproportionately excluded women, because the policy was not adopted in order to exclude women. Id. at 275. The clear implication of this holding is that had the policy been adopted in order to exclude women, it would be impermissible. ↑
  14.  The Chief Justice emphasizes this fact in SFFA. See SFFA, 143 S. Ct. 2141, 2175 (2023) (critiquing the dissent by asserting that “[w]hile the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue”). ↑
  15.  See id. at 2166; Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 298–99 (1978) (holding that whether a racial classification is used for benign purposes or invidious ones is not relevant and instead that classifications that “touch upon an individual’s race or ethnic background” all require the application of strict scrutiny). ↑
  16.  SFFA, 143 S. Ct. at 2169 (“A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”). ↑
  17.  In another case, the Chief Justice has suggested that he would find such motivation suspect. See, for example, Chief Justice Roberts’s comment in Parents Involved, where he opined that “[r]acial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’” which suggests that he might find intending to select for people on the basis of race to also be a patently unconstitutional motivation. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 732 (2007). ↑
  18.  SFFA, 143 S. Ct. at 2225 (Kavanaugh, J., concurring) (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 526 (1989) (Scalia, J., concurring)). ↑
  19.  Id. at 2215 (Gorsuch, J., concurring). ↑
  20.  Id. at 2206 (Thomas, J., concurring). ↑
  21.  What Justice Thomas would say about such a case is especially uncertain, as other parts of his concurring opinion suggest that he finds questionable the very idea that racial diversity is important in higher education. See id. at 2207. ↑
  22.  For a recent analysis, see Sonja Starr, The Magnet School Wars and the Future of Colorblindness, 76 Stan. L. Rev.
    161, 163–64 (2024).

    ↑

  23.  See Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 871–72, 875–76 (4th Cir. 2023). Judge Rushing, dissenting, argued that a “school board’s motivation to racially balance its schools, even using the means of a facially neutral policy, must be tested under exacting judicial scrutiny.” Id. at 893 (Rushing, J., dissenting). ↑
  24.  See Petition for Writ of Certiorari at 13, Coal. for TJ, No. 23-170 (U.S. Aug. 21, 2023) (styling their first reason for granting the petition in these terms: “The Use of Facially Race-Neutral Admissions Criteria to Achieve Racial Balance Presents an Unsettled Question of National Importance”). ↑
  25.  The majority opinion in Coalition for TJ does not specifically address this issue. See generally Coal. for TJ, 68 F.4th 864. In Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, the plaintiffs unsuccessfully argued that “where the government shifts to a policy that treats applicants differently based on a factor that is designed to operate as a proxy for race, it becomes suspect.” 627 F. Supp. 3d 253, 263–65 (S.D.N.Y. 2022). ↑
  26.  See, for example, Lewis v. Ascension Parish School Board, 662 F.3d 343, 352 (5th Cir. 2011) (per curiam), in which the Fifth Circuit reversed the lower court’s summary judgment and remanded the case in light of the existence of genuine issues of material fact regarding whether a racially discriminatory purpose and effect were present. Then-Chief Judge Jones, concurring, asserted that geographic boundaries used in student assignment are not racially neutral if adopted for the purpose of achieving racial balance in the schools. Id. at 354 (Jones, C.J., concurring) (“Streets . . . may well be racial proxies because the district or its agents apparently knew and used the racial composition of the people living on those streets to pursue racial balancing.”). Following remand to the district court, the Fifth Circuit upheld the finding of no constitutional violation without reaching the question of whether discriminatory intent was present. Lewis v. Ascension Parish Sch. Bd., 806 F.3d 344, 358, 363 (5th Cir. 2015). ↑
  27.  Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 23-170, 2024 WL 674659, at *1 (U.S. Feb. 20, 2024). Justice Alito, joined by Justice Thomas, dissented from the denial of certiorari but did so for reasons unrelated to the question regarding what intentions are prohibited under equal protection doctrine. Id. at *1, 5 (Alito, J., dissenting from the denial of certiorari). ↑
  28.  See, e.g., Zeina Mohammed, Black Women Are More Likely to Die During Pregnancy. A Local Doula Program Aims to Change That, Bos. Globe (Dec. 30, 2022, 5:14 PM), https://www.bostonglobe.com/2022/12/30/metro/mass-general-brighams-doula-program-aim‌s-close-racial-disparities-childbirth/
    ;

    Working

    Together to Reduce Black Maternal Mortality, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/womens-health/features/matern‌al-mortality.html [https://perma.cc/4TR9-VV7E] (last updated Apr. 8, 2024). ↑

  29.  Where a constitutionally impermissible reason is a motivating reason for facially neutral state action, the burden shifts to the state to show that the same decision would have been reached absent the impermissible motivation. If the state is unable to do so, the facially neutral policy is subject to heightened review. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66, 270 n.21 (1977). ↑

  30.  See supra note 5. ↑

Frictionless Government and Foreign Relations

In an era defined by partisan rifts and government gridlock, many celebrate the rare issues that prompt bipartisan consensus. But extreme consensus should sometimes trigger concern, not celebration. We call these worrisome situations “frictionless government.” Frictionless government occurs when there is overwhelming bipartisan and bicameral consensus about a particular set of policies, as well as consensus between Congress and the President. Frictionless situations have inherent weaknesses, including the loss of inter-branch checks and balances that the constitutional Framers envisioned, the loss of partisan checks that typically flow from a “separation of parties,” the reduction of inter- and intra-agency checks within the executive branch, and an increased risk of cognitive biases, such as groupthink, that hamper wise policy-making.

Frictionless situations tend to involve foreign relations and commonly arise when the United States is attacked or otherwise finds itself in a conflict with external enemies. In such high-stakes moments, frictionless government has led to policy decisions taken with overwhelming consensus that go off the rails by sparking or escalating conflict, triggering actions by U.S. adversaries that undercut U.S. security goals, and unlawfully targeting domestic constituencies perceived to be linked to foreign adversaries. Such decisions eventually provoke substantial opposition and often repeal, but only after causing serious harms.

Celebration of unified, bipartisan action in frictionless government should not overwhelm appreciation of the risks that can result from a rush to act. This Article draws on historical examples, including the U.S. internment of Japanese Americans during World War II, the conduct of the Vietnam War, and the U.S. response to the September 11 attacks, and then considers more recent actions including the U.S. response to Russia’s full-scale invasion of Ukraine and ongoing tensions with China. The Article ultimately argues that recognizing the perils of frictionless government early is the best way to avoid the excesses that have plagued past eras of “frictionlessness,” and it proposes ways to reintroduce productive friction back into policy-making processes, including via self-imposed actions by Congress and the executive and via external actors, such as companies, foreign governments, and state and local governments.

Introduction

The phrase “frictionless government” may seem like an oxymoron to many observers of U.S. politics today. In 2023 alone, the House twice faced steep challenges in selecting its Speaker,1 1.Lindsey McPherson, Laura Weiss & Caitlin Reilly, McCarthy Wins Speaker Election, Finally, Roll Call (Jan. 7, 2023, 1:38 AM), https://rollcall.com/2023/01/07/mccarthy-wins-spe‌aker-election-finally/ [https://perma.cc/XCN4-RAPB]; Luke Broadwater, Republicans Tap Jordan for Speaker, but Delay Vote as Holdouts Balk, N.Y. Times (Oct. 17, 2023), https://www.nytimes.com/2023/10/13/us/politics/house-speaker-jordan-scalise.html.Show More and both houses together have almost failed to raise the debt ceiling2 2.Christopher M. Tuttle, Out of the Debt Ceiling Fire, but Still in the Frying Pan, Council on Foreign Rels. (June 2, 2023, 9:46 AM), https://www.cfr.org/blog/out-debt-ceiling-fire-stil‌l-frying-pan [https://perma.cc/Q7SR-BTNE].Show More and fund the government.3 3.David Wessel, What Is a Government Shutdown?, Brookings Inst. (Mar. 23, 2024), https://‌www.brookings.edu/articles/what-is-a-government-shutdown-and-why-are-we-likely-to-hav‌e-another-one/#:~:text=In%20a%20surprise%2C%20Congress%20avoided,year%27s%20le‌vels%20for%2045%20days [https://perma.cc/8JBC-8LSZ].Show More Research shows that Congress is more polarized now than it has been for the past fifty years.4 4.Drew Desilver, The Polarization in Today’s Congress Has Roots That Go Back Decades, Pew Rsch. Ctr. (Mar. 10, 2022), https://www.pewresearch.org/short-reads/2022/03/10/the-pol‌arization-in-todays-congress-has-roots-that-go-back-decades/ [https://perma.cc/6AYT-F3‌6K].Show More Not surprisingly, referring to Congress as “broken” has become a common trope.5 5.Betsey Stevenson, Congress Is Even More Dysfunctional Than It Looks, Bloomberg Tax (Oct. 13, 2023, 7:00 AM), https://news.bloombergtax.com/daily-tax-report/congress-is-more-dysfunctional-than-it-looks-betsey-stevenson; Peter King, I Served in the House for 28 Years. It’s Now More Dysfunctional Than Ever., The Hill (Sept. 25, 2023, 3:00 PM), https://thehill‌.com/opinion/campaign/4221898-i-served-in-the-house-for-28-years-its-now-more-dysfuncti‌onal-than-ever/; Yuval Levin, What We Can Do to Make American Politics Less Dysfunctional, N.Y. Times (Oct. 9, 2023), https://www.nytimes.com/2023/10/09/opinion/am‌erican-politics-congress-reform.html.Show More As a result, many are skeptical that Congress can do much at all.

Yet even as Congress has struggled with this increasing polarization, it continues to enact hundreds of bills every session, including National Defense Authorization Acts (“NDAAs”), producing approximately 4 to 6 million words of new law in each Congress.6 6.Statistics and Historical Comparison, GovTrack.us, https://www.govtrack.us/congress/bill‌s/statistics [https://perma.cc/VP6N-CK2T] (last visited Oct. 4, 2024).Show More In some cases, Congress enacts these laws with large majorities voting in favor of the bills.7 7.For example, the 2024 NDAA passed the House of Representatives and the Senate with 310 and 87 yeas, respectively. Roll Call 723 | Bill Number: H.R. 2670, U.S. House of Representatives: Clerk (Dec. 14, 2023, 10:40 AM), https://clerk.house.gov/Votes/2023723 [https://perma.cc/‌4ASF-2KJU]; Roll Call Vote 118th Congress—1st Session, U.S. Senate (Dec. 13, 2023, 6:46 PM), https://www.senate.gov/legislative/LIS/roll_call_votes/vote1181/v‌ote_118_1_003‌43.htm [https://perma.cc/ERZ5-Z3LR].Show More This is often true when the legislation implicates foreign relations, and especially when the United States faces a perceived external threat.8 8.See infra note 173 and accompanying text (discussing adoption of the 2001 Authorization for Use of Military Force).Show More Where Congress passes a bill with large majorities and the President strongly supports the law, we might see this as a cause to celebrate, not hesitate. But this Article takes the counterintuitive position that for as much attention as government dysfunction engenders, certain instances of overwhelming and bipartisan consensus should also prompt concern.

This Article focuses on a particular subset of foreign policy decision-making that we term “frictionless government.” By this term, we mean to capture situations in which there is overwhelming bipartisan and bicameral consensus about a particular set of policies, as well as consensus between Congress and the executive. In such cases, the normal checks and balances that typically arise during policy-making weaken and, in some cases, disappear entirely, creating a risk of policy going off the rails. The usual tensions between congressional and executive desires disappear; the rough-and-tumble partisan interactions between Republicans and Democrats fade; and the often-contentious inter-agency negotiations inside the executive branch are streamlined. These conditions can amplify the cognitive biases that often arise in decision-making, including optimism bias, confirmation bias, and groupthink, and often result in governmental actions that spark or escalate conflict, trigger actions by U.S. adversaries that undercut U.S. security goals, and unlawfully target domestic constituencies perceived to be linked to foreign adversaries. Such policy decisions eventually come to be viewed as problematic, both legally and from a policy perspective, but only too late to avoid their costs.

Historical examples illustrate that frictionless situations tend to arise when the United States is attacked or otherwise finds itself in conflict with external enemies. Common across the historical frictionless examples that this Article identifies are laws and policies adopted with overwhelming bipartisan support from across the U.S. government that eventually come to provoke substantial opposition and often repeal. The U.S. internment of Japanese Americans during World War II, the conduct of the Vietnam War, and the use of renditions and torture as part of the U.S. response to the September 11 attacks are among the most serious U.S. foreign policy mistakes of the twentieth and twenty-first centuries. Yet all were based on or supported by statutes that passed Congress by very wide, bipartisan margins and with the encouragement of the White House.

Not all situations of frictionless government necessarily produce poor policies. The Article highlights the response to Russia’s full-scale invasion of Ukraine as a recent example of frictionless government that, to date, has not produced the same pathologies as past examples. But there are enough examples of serious foreign policy errors made under frictionless government that it is worth reconsidering the virtues of—and highlighting the vices of—frictionlessness. This analysis is crucial in light of current tensions between the United States and China, which are producing elements of frictionlessness in U.S. policy-making that raise cause for concern.

This Article’s goal in identifying the existence of frictionless situations is to ensure that, going forward, celebration of unified, bipartisan action in frictionless government will not overwhelm the appreciation of the risks that can result from a rush to act against perceived threats. Recognizing the perils of frictionless government is the best way to ensure that actors inside and outside government take steps to avoid replicating the excesses of past frictionless situations. Instead of being able to rely on inter-branch or inter-party checks, we will need to look elsewhere for supplemental checks on U.S. policy in these situations, to avoid groupthink and ensure that the United States is striking the right balance in national security or foreign policy settings that often have generational impacts. In some cases, Congress and the executive could choose to deliberately reintroduce some level of friction into their decision-making, to ensure that the President is presented with a wider range of options and that there are requirements to revisit policy decisions periodically. External actors may also provide useful friction in the form of litigation by affected parties, resisting or slow-rolling policy implementation, and lobbying governmental actors.

To be clear, there are sound reasons to want the United States to be able to respond quickly and effectively to very real threats to its current and future security. But even—and maybe particularly—in the face of these threats, it is to the long-term advantage of U.S. national security to ensure ongoing, iterative checks and balances on U.S. policies in this space.

The Article proceeds as follows. Part I defines “frictionless government” and explains the inherent weaknesses of such situations, including the loss of inter-branch checks and balances that the constitutional Framers relied upon, the loss of partisan checks that typically flow from a “separation of parties,” the limiting of inter- and intra-agency checks within the executive branch, and the risk of fostering groupthink and other cognitive biases that hamper wise policy-making. Part I concludes by discussing the lifecycle of frictionless situations, especially when they arise and how they ultimately fade away, and by considering possible counterarguments to our concerns about frictionless situations. Moving from the theoretical to the practical, Part II addresses frictionless government in practice, identifying and analyzing several historical and more recent examples of frictionless situations to derive categories of pathologies that frictionlessness produces. Part III then proposes ways to reintroduce checks and balances into frictionless government situations, drawing on both friction that can be self-imposed by the political branches and friction introduced by external actors, including regulated companies, foreign governments, and state and local governments.

  1.  Lindsey McPherson, Laura Weiss & Caitlin Reilly, McCarthy Wins Speaker Election, Finally, Roll Call (Jan. 7, 2023, 1:38 AM), https://rollcall.com/2023/01/07/mccarthy-wins-spe‌aker-election-finally/ [https://perma.cc/XCN4-RAPB]; Luke Broadwater, Republicans Tap Jordan for Speaker, but Delay Vote as Holdouts Balk, N.Y. Times (Oct. 17, 2023), https://www.nytimes.com/2023/10/13/us/politics/house-speaker-jordan-scalise.html. ↑
  2.  Christopher M. Tuttle, Out of the Debt Ceiling Fire, but Still in the Frying Pan, Council on Foreign Rels. (June 2, 2023, 9:46 AM), https://www.cfr.org/blog/out-debt-ceiling-fire-stil‌l-frying-pan [https://perma.cc/Q7SR-BTNE]. ↑
  3.  David Wessel, What Is a Government Shutdown?, Brookings Inst. (Mar. 23, 2024), https://‌www.brookings.edu/articles/what-is-a-government-shutdown-and-why-are-we-likely-to-hav‌e-another-one/#:~:text=In%20a%20surprise%2C%20Congress%20avoided,year%27s%20le‌vels%20for%2045%20days [https://perma.cc/8JBC-8LSZ]. ↑
  4.  Drew Desilver, The Polarization in Today’s Congress Has Roots That Go Back Decades, Pew Rsch. Ctr. (Mar. 10, 2022), https://www.pewresearch.org/short-reads/2022/03/10/the-pol‌arization-in-todays-congress-has-roots-that-go-back-decades/ [https://perma.cc/6AYT-F3‌6K]. ↑
  5.  Betsey Stevenson, Congress Is Even More Dysfunctional Than It Looks, Bloomberg Tax (Oct. 13, 2023, 7:00 AM), https://news.bloombergtax.com/daily-tax-report/congress-is-more-dysfunctional-than-it-looks-betsey-stevenson; Peter King, I Served in the House for 28 Years. It’s Now More Dysfunctional Than Ever., The Hill (Sept. 25, 2023, 3:00 PM), https://thehill‌.com/opinion/campaign/4221898-i-served-in-the-house-for-28-years-its-now-more-dysfuncti‌onal-than-ever/; Yuval Levin, What We Can Do to Make American Politics Less Dysfunctional, N.Y. Times (Oct. 9, 2023), https://www.nytimes.com/2023/10/09/opinion/am‌erican-politics-congress-reform.html. ↑
  6.  Statistics and Historical Comparison, GovTrack.us, https://www.govtrack.us/congress/bill‌s/statistics [https://perma.cc/VP6N-CK2T] (last visited Oct. 4, 2024). ↑
  7.  For example, the 2024 NDAA passed the House of Representatives and the Senate with 310 and 87 yeas, respectively. Roll Call 723 | Bill Number: H.R. 2670, U.S. House of Representatives: Clerk (Dec. 14, 2023, 10:40 AM), https://clerk.house.gov/Votes/2023723 [https://perma.cc/‌4ASF-2KJU]; Roll Call Vote 118th Congress—1st Session, U.S. Senate (Dec. 13, 2023, 6:46 PM), https://www.senate.gov/legislative/LIS/roll_call_votes/vote1181/v‌ote_118_1_003‌43.htm [https://perma.cc/ERZ5-Z3LR]. ↑

  8.  See infra note 173 and accompanying text (discussing adoption of the 2001 Authorization for Use of Military Force). ↑

Presidential Adjudication

Over the last several decades, administrative law has recognized an expanding role for the President in controlling agency decision-making. Agency adjudication—and especially formal hearings conducted under the Administrative Procedure Act (“APA”)—have been viewed as properly insulated from this development. To protect due process, the APA established a regime for ensuring that competent, impartial Administrative Law Judges (“ALJs”) preside over formal hearings. The regime includes two apparent levels of for-cause removal protection for ALJs combined with robust agency head control over the policymaking aspects of formal adjudication. Today, the regime is in peril because it appears to be inconsistent with the Supreme Court’s unitary executive theory of administration.

This Article defends the constitutionality of the APA’s ALJ regime under the Supreme Court’s recent separation of powers cases. It argues that the APA’s robust preservation of agency head control satisfies Article II, while its for-cause protections for ALJs ensure due process and faithful execution of the law through adjudicatory hearings. The statute is, in short, well-designed to ensure properly presidential adjudication.

The Article further argues, however, that there is a deeper conceptual challenge lurking here. The APA and the administrative state were founded upon a New Deal-era conception of administrative power as quasi-legislative and quasi-judicial and fundamentally not executive. Modern administrative law has rejected this conception, embracing instead the view that administrative power necessarily entails the exercise of executive power. The current threat to the APA offers an opportunity to improve upon this conception by recognizing that administration is about both discretion and duty. Political control has its place. But the President must also be able to rely on subordinate officers that Congress has equipped with the legal and institutional support necessary to fairly and faithfully execute the law.

Introduction

The Administrative Procedure Act’s (“APA”) most central reform—its regime for ensuring competent, impartial presiding officers in adjudicatory hearings—is on a collision course with the Supreme Court’s recent separation of powers jurisprudence. In peril is the APA’s structure for empowering and protecting Administrative Law Judges (“ALJs”), who preside over administrative hearings and issue initial decisions that may become final in the absence of agency head review.1 1.See 5 U.S.C. §§ 556(b)–(c), 557(b).Show More The primary threat to the regime is Free Enterprise Fund v. PCAOB,2 2.561 U.S. 477 (2010).Show More a 2010 case in which the Supreme Court held that “multilevel protection from removal is contrary to Article II’s vesting of the executive power in the President.”3 3.Id. at 484.Show More Seemingly like the structure at issue in Free Enterprise Fund, the APA’s ALJ structure entails “multilevel protection from removal.”4 4.Id.Show More ALJs can be removed from office only for cause, which is determined by the Merit Systems Protection Board (“MSPB”),5 5.See 5 U.S.C. § 7521.Show More the members of which likewise can be removed only for cause.6 6.See id. § 1202(d).Show More The situation is further complicated when ALJs are employed by independent agencies such as the Securities and Exchange Commission (“SEC”), which are headed by multimember bodies whose members likely enjoy for-cause removal protection.7 7.In Free Enterprise Fund, the parties and the majority assumed that SEC commissioners can be removed only for cause, although the SEC’s organic statute contains no for-cause provision. See 561 U.S. at 487; see also id.at 545–46 (Breyer, J., dissenting, joined by Stevens, Ginsburg & Sotomayor, JJ.) (noting that the majority “assume[d] without deciding that . . . SEC Commissioners . . . are removable only ‘for cause’” (emphasis omitted)). SEC commissioners are, however, appointed for a term of years, see 15 U.S.C. § 78d(a), which perhaps should be interpreted as a protection against removal by the President for the duration of the term. See Jane Manners & Lev Menand, The Three Permissions: Presidential Removal and the Statutory Limits of Agency Independence, 121 Colum. L. Rev. 1, 5 (2021). But see Severino v. Biden, 71 F.4th 1038, 1045–46 (D.C. Cir. 2023) (rejecting this approach to interpreting a statutory term of years).Show More The principle of Free Enterprise Fund would pose no threat to the APA if ALJs were mere employees, but the Supreme Court foreclosed this possibility in 2018, when it held in Lucia v. SEC that SEC ALJs are “Officers of the United States.”8 8.U.S. Const. art. II, § 2, cl. 2; Lucia v. SEC, 138 S. Ct. 2044, 2049 (2018). Although Lucia dealt only with ALJs employed by the SEC, its holding likely reaches ALJs employed by other agencies because of the similarity of functions. See Guidance on Administrative Law Judges After Lucia v. SEC (S. Ct.), July 2018, 132 Harv. L. Rev. 1120, 1122–23 (2019).Show More In Jarkesy v. SEC,9 9.34 F.4th 446 (5th Cir. 2022), aff’d on other grounds, 144 S. Ct. 2117, 2127, 2139 (2024).Show More the U.S. Court of Appeals for the Fifth Circuit held that the multilevel removal protection provided by the APA’s ALJ structure is unconstitutional under Free Enterprise Fund.10 10.Id. at 464.Show More Although the Supreme Court granted certiorari on this question, it affirmed the Fifth Circuit on alternative grounds.11 11.See Jarkesy, 144 S. Ct. at 2127, 2139; see also Petition for a Writ of Certiorari at I, Jarkesy, 144 S. Ct. 2117 (No. 22-859) (presenting several questions, including “[w]hether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection”).Show More But the Supreme Court will have to address the removal question eventually. The APA’s day of reckoning has only been delayed.

Lurking beneath the surface of this controversy is a more fundamental conflict: in recent decades, the Supreme Court has developed a conception of administrative action fundamentally at odds with that which prevailed in the New Deal era and animated the APA. As I have argued in prior work, the APA is based on a conception of administrative action as exclusively quasi-legislative and quasi-judicial, and fundamentally not executive.12 12.See Emily S. Bremer, The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. 377, 436–47 (2021) [hereinafter Bremer, Rediscovered Stages].Show More Although ordinarily associated with the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States,13 13.295 U.S. 602 (1935).Show More which involved the constitutionality of for-cause removal protection for commissioners of the FTC,14 14.Id. at 608.Show More this understanding of administrative power was not confined to independent regulatory commissions. To the contrary, this understanding applied to all statutory grants of quasi-legislative (rulemaking) or quasi-judicial (adjudication) power, whether made to an independent agency or a traditional executive department.15 15.See, e.g., Ariz. Grocery Co. v. Atchison, 284 U.S. 370, 389 (1932) (same but involving the Interstate Commerce Commission); Morgan v. United States, 298 U.S. 468, 477, 481–82 (1936) (applying the New Deal conception of “administrative” action to ratemaking conducted by the Department of Agriculture).Show More Indeed, the Attorney General’s Committee on Administrative Procedure—which conducted the extensive research that provided the APA’s “intellectual foundation”16 16.K.C. Davis, Walter Gellhorn & Paul Verkuil, Present at the Creation: Regulatory Reform Before 1946, 38 Admin. L. Rev. 511, 514 (1986). I have examined this research in detail in previous work. See Emily S. Bremer, The Undemocratic Roots of Agency Rulemaking, 108 Cornell L. Rev. 69, 90–93 (2022); Bremer, Rediscovered Stages, supra note 12, at 396–402. The relevant documents are available electronically in The Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946, https://heinonline.‌org/HOL/Index?collection=bremer. See generally Emily S. Bremer & Kathryn E. Kovacs, Essay, Introduction to The Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946 (HeinOnline 2021), 106 Minn. L. Rev. Headnotes 218 (2022) (offering a narrative introduction to the collection).Show More—employed this conception to scope its study.17 17.See Off. of the Att’y Gen., Final Report of the Attorney General’s Committee on Administrative Procedure 2–4 (1941) [hereinafter Final Report]. The Final Report is based on 27 monographs examining the procedures and practices of “administrative” agencies. See id. at 3–4. Purely “executive” agencies—such as the Government Printing Office, the Bureau of Standards, the Civil Service Commission (“CSC”), the Bureau of the Budget, and the General Accounting Office—were left out of the study. See id. at 5.Show More Only agencies that were “administrative” in the New Deal sense were included. This choice left an indelible mark on the APA, which regulates binding agency action according to the mutually exclusive categories of adjudication and rulemaking.18 18.See 5 U.S.C. § 551(4)–(7). “This particular line may be the APA’s most important innovation.” Kristin E. Hickman & Aaron L. Nielson, Narrowing Chevron’sDomain, 70 Duke L.J. 931, 942 (2021). It was inspired by—but “not on all fours with”—the pre-APA definitions of quasi-judicial and quasi-legislative action. Emily S. Bremer, Blame (or Thank) the Administrative Procedure Act for Florida East Coast Railway, 97 Chi.-Kent L. Rev. 79, 96–97 (2022) [hereinafter Bremer, Blame (or Thank)].Show More

When the APA was enacted in 1946, most administrative action was adjudication, and the statute’s primary aim was to address the constitutional challenges presented by this quasi-judicial form of agency action.19 19.The legislature was also influenced by concerns—made concrete by the World Wars and related political developments in Europe—about how to ensure effective administration without facilitating authoritarianism. See, e.g., Kathryn E. Kovacs, Avoiding Authoritarianism in the Administrative Procedure Act, 28 Geo. Mason L. Rev. 573, 596–600 (2021); Noah A. Rosenblum, The Antifascist Roots of Presidential Administration, 122 Colum. L. Rev. 1, 14, 48–49 (2022).Show More At the time, adjudication was understood as a staged or “phase[d]” process.20 20.See Final Report, supra note 17, at 5.Show More (Modern administrative law has forgotten this, although adjudication today retains its staged structure.21 21.See Bremer, Rediscovered Stages, supra note 12, at 433.Show More) The initial stage of adjudication involves myriad informal, non-hearing techniques such as investigations, inspections, examinations, conferences, negotiations, and settlements.22 22.See id. at 402–03.Show More In the relatively rare instances in which these techniques are insufficient to resolve a matter with the affected private party’s consent,23 23.See Final Report, supra note 17, at 35–38, 41–42.Show More a judicial-type hearing might be required to resolve the dispute. Congress often prefers that the needed hearing be conducted by the agency—rather than by a court on judicial review—and so includes a hearing requirement in the agency’s governing statute.24 24.Bremer, Rediscovered Stages, supra note 12, at 431.Show More This approach ensures the agency’s primary jurisdiction, but it presents significant constitutional challenges, threatening due process as a matter of both separation of powers and individual rights.25 25.For an originalist discussion of the relationship between due process and separation of powers, see Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1677–78 (2012). The sovereign power and individual rights aspects of due process are also observable, for example, in personal jurisdiction doctrine. See, e.g., Thomas D. Rowe, Jr., Suzanna Sherry & Jay Tidmarsh, Civil Procedure 452 (5th ed. 2020) (“The Court has wavered about whether personal-jurisdiction doctrine rests on individual liberty or state sovereignty (or both).”).Show More The need to address these challenges was the driving force behind the APA. The hearing provisions enacted by Congress achieved that goal by establishing a default procedural regime intended to apply across all adjudicating agencies.26 26.The APA’s procedures are a default because they apply unless Congress affirmatively elects to displace them. See 5 U.S.C. §§ 556(b), 559.Show More

In the three-quarters of a century since the APA’s adoption, rulemaking has become central to administration, working an inevitable change on the dominant conception of “administrative” power. Beginning in the 1960s and ’70s, rulemaking began to displace adjudication as the preferred method of agency policymaking,27 27.See, e.g., Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 Sup. Ct. Rev. 345, 376 (describing “the constant and accelerating flight away from individualized, adjudicatory proceedings to generalized disposition through rulemaking”); see also Alan B. Morrison, The Administrative Procedure Act: A Living and Responsive Law, 72 Va. L. Rev. 253, 254–55 (1986); Ralph F. Fuchs, Development and Diversification in Administrative Rule Making, 72 Nw. U. L. Rev. 83, 89 (1977) (noting the “growing tendency” of many agencies to confront policy issues via rulemaking rather than adjudication).Show More and Congress created a host of new agencies with broad statutory mandates to protect public health and safety through rules. This shift in turn heralded the rise of “presidential administration”28 28.See generally Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001) (analyzing the President’s recent primacy in setting the direction of administrative process); cf. Michael A. Livermore, Political Parties and Presidential Oversight, 67 Ala. L. Rev. 45, 53–61 (2015) (describing how executive restructuring, presidential control in administrative law, and evolution in the operation of American political parties have all contributed to increase the President’s influence in federal administration). For an early warning that this development might disrupt the carefully mediated tension between law and politics in administrative law, see Peter L. Strauss, Presidential Rulemaking, 72 Chi.-Kent L. Rev. 965, 984–86 (1997).Show More by giving presidents a “grip” on agency policymaking that was elusive when agencies primarily made policy incrementally, through ad hoc adjudication.29 29.See Emily S. Bremer, Power Corrupts, 41 Yale J. on Regul. 426, 456–58 (2024) [hereinafter Bremer, Power Corrupts].Show More In response to these developments, the Supreme Court’s administrative law docket increasingly focused on policymaking undertaken pursuant to statutes that grant broad discretion and contemplate a central role for rulemaking.30 30.The Chevron doctrine—according to which courts would defer to reasonable agency interpretations of the statutes by which Congress has delegated power to them—was both cause and consequence of this change in focus. See Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 865–66 (1984). This doctrine governed for forty years, but the Supreme Court recently overruled Chevron. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024).Show More As the Court has decided these modern disputes, a profoundly different—fundamentally executive—conception of administrative action has emerged.31 31.See, e.g., City of Arlington v. FCC, 569 U.S. 290, 304 n.4 (2013) (explaining that administrative actions “take ‘legislative’ and ‘judicial’ forms, but they are exercises of—indeed under our constitutional structure they must be exercises of—the ‘executive Power.’”).Show More At the same time, support has grown for a more unitary theory of executive power that seeks to legitimize agency action through the President’s democratic accountability.32 32.“Presidential Administration intersects with (while being distinct from) . . . the unitary executive theory,” which itself has both stronger and weaker formulations. Elena Chachko, Administrative National Security, 108 Geo. L.J. 1063, 1115 n.331 (2020). The important point for purposes of this Article is that there has been a strong trend in administrative law, which has manifested doctrinally in the Court’s recent separation of powers cases, to embrace presidential control of administration and to look skeptically on legal impediments to such control. See Mark Tushnet, A Political Perspective on the Theory of the Unitary Executive, 12 U. Pa. J. Const. L. 313, 315, 325–29 (2010); Steven G. Calabresi & Saikrishna B. Prakash,The President’s Power to Execute the Laws, 104 Yale L.J. 541, 545 (1994) (“Recently, the weight of academic opinion has shifted . . . to the theory of the unitary Executive.”); Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404, 404 (2023) (“Over the last decade, [the Supreme Court’s] majority has increasingly embraced a unitary theory of Article II . . . .”); cf. Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 Yale L.J. 2, 8 (2009) (arguing “that what count as ‘valid’ reasons under arbitrary and capricious review should be expanded to include certain political influences from the President, other executive officials, and members of Congress, so long as the political influences are openly and transparently disclosed in the agency’s rulemaking record”).Show More The result is a unitary executive conception of administration that fits most naturally with the type of agency action that spawned it: policymaking through the development and enforcement of general rules adopted pursuant to broad statutory delegations.

The Supreme Court now confronts the challenge of adapting its unitary executive conception of administration to formal adjudicatory hearings, a genuinely quasi-judicial form of agency action that implicates very different issues and values than those at stake in the rulemaking context. To date, adjudication generally has been viewed as an area of administration that is properly insulated from presidential control.33 33.Kagan, supra note 28, at 2306 (“The only mode of administrative action from which Clinton shrank was adjudication. At no time in his tenure did he attempt publicly to exercise the powers that a department head possesses over an agency’s on-the-record determinations.”); see also Wiener v. United States, 357 U.S. 349, 356 (1958) (holding that the adjudicative functions of the War Claims Commission “precluded the President from influencing the Commission in passing on a particular claim” and from removing a member of the Commission “for no reason other than that he preferred to have on that Commission men of his own choosing”); Myers v. United States, 272 U.S. 52, 135 (1926) (“Then there may be duties of a quasi-judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President can not in a particular case properly influence or control.”).Show More In her seminal article identifying the phenomenon of “presidential administration,” then-Professor Kagan recognized that adjudication “is fundamentally different” from other forms of agency policymaking such as rulemaking.34 34.Kagan, supra note 28, at 2362; see also Chachko, supra note 32, at 1122 (“Kagan herself did not argue for presidential administration of administrative adjudication.”).Show More In adjudication, “presidential participation in administration, of whatever form, would contravene procedural norms and inject an inappropriate influence into the resolution of controversies.”35 35.Kagan, supra note 28, at 2363; see also Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1211 (2013) (“Proponents of expansive presidential power to direct subordinates’ exercise of delegated discretion stop short of arguing for presidential directive power over adjudication, even where strictly executive agencies . . . are concerned.”).Show More Although presidential administration has made some inroads into the adjudication context, these developments have been limited.36 36.See, e.g., Jerry L. Mashaw & David Berke, Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience, 35 Yale J. on Regul. 549, 594–95 (2018) (noting, but “tak[ing] no position on,” the Obama Administration’s push for “more muscular use of adjudication and regulatory enforcement actions across agencies to further policy goals”); Memorandum from Dana Remus, Counsel to the President, to All White House Counsel Staff 1–2, 4–6, 10 (July 21, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/White-House-Policy-for-Contacts-with-Agencies-and-Department‌s.pdf [https://perma.cc/T2FA-VMNN] (advising White House staff not to contact agencies about the adjudication of specific cases). Although the Trump Administration issued some directives to agencies regarding the conduct of adjudication, these efforts were general, procedurally focused, and recommendatory. See, e.g., Memorandum from Paul J. Ray, Adm’r, Off. of Info. & Regul. Affs., to the Deputy Sec’ys of Exec. Dep’t & Agencies 1–3 (Aug. 31, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/08/M-20-31.pdf [https://perma‌.cc/9BNA-8WM9].Show More The Supreme Court nonetheless has seemed poised to extend its strong vision of the President’s executive power into the adjudicative space, an outcome that some commentators view as logical and appropriate.37 37.See, e.g., Vermeule, supra note 35, at 1212 (“If one believes that Presidents hold directive power over the delegated discretion of executive agencies, it is unclear why that power would not extend straightforwardly to adjudicative functions of agencies as well as rulemaking functions.”).Show More After all, the Constitution vests the executive power in the President, and “[a]gency adjudication, just as much as agency rulemaking, is an exercise of the ‘executive power’ under Article II.”38 38.Id.Show More

This Article argues that the APA’s ALJ regime is constitutional under the Supreme Court’s new approach because it provides the procedural and institutional structures necessary to ensure faithful execution of the law through administrative adjudication. At the level of legal doctrine, the important point is that the APA’s carefully constructed regime masterfully integrates procedural requirements, employment structures, and agency head control in a way that, taken together, promotes political accountability consistent with the demands of due process. Viewed in its totality, the APA’s regime erects only one—not two—effective levels of for-cause removal protection between the President and the ALJs.39 39.Although Free Enterprise Fund suggests that such a holistic, functional analysis is inappropriate, see 561 U.S. 477, 499–500 (2010), the Court’s more recent decision in United States v. Arthrex, Inc. embraces it, see 141 S. Ct. 1970, 1980–86 (2021).Show More The statute’s robust preservation of agency head control ensures proper presidential control over, and responsibility for, the policymaking aspects of formal adjudication.40 40.If there is an Article II problem to be found here, it is not in the APA’s regime but in the for-cause protection afforded to the principal officers who collectively form the head of agencies such as the SEC. The Court has so far been able to avoid squarely considering this question, but it should do so (in an appropriate case) instead of sacrificing the APA just to kick that can further down the road. See infra Section II.C.Show More Meanwhile, the for-cause removal protections and related employment structures enable the President to ensure impartial adjudication in hearings before the agencies and the MSPB, respectively. At the level of administrative theory, the analysis reveals that executive power in the adjudicatory context is more about discharging duties than exercising discretion. The President must be able to depend on inferior executive officers to fairly adjudicate (as required by due process) and faithfully execute the law (as required by Article II) through an incredible volume of formal adjudicatory hearings. Neither the President nor the heads of departments can review all of these adjudicatory decisions—they must be able to rely on delegation to inferior officers. The APA’s regime ensures that ALJs are sufficiently competent and impartial to meet this need,41 41.For example, ALJs must be lawyers, while non-ALJ adjudicators (often referred to as “administrative judges” or “AJs”) are not always subject to that requirement and often are not lawyers. See Kent Barnett, Against Administrative Judges, 49 U.C. Davis L. Rev. 1643, 1660, 1703 (2016). This may contribute to variable competence across adjudication programs and may also convey the impression that some kinds of agency adjudication are more important than others. Cf. Sara Sternberg Greene & Kristen M. Renberg, Judging Without a J.D., 122 Colum. L. Rev. 1287, 1291 (2022) (studying the use of lay judges in state courts and arguing that “allowing a system of nonlawyer judges perpetuates long-standing inequalities in how litigants experience courts”).Show More while agency heads have proper control over the adjudicatory programs for which they are responsible. From this perspective, it emerges that the restrictive aspects of the APA’s regime empower the President to ensure faithful execution in the unique, quasi-judicial context of formal administrative hearings.42 42.Cf. Robert L. Glicksman & Richard E. Levy, The New Separation of Powers Formalism and Administrative Adjudication, 90 Geo. Wash. L. Rev. 1088, 1096 (2022)(“[P]roperly understood, most administrative adjudication is fully consistent with separation of powers formalism because it involves the execution of the law by officials within the executive branch.”).Show More This insight in turn reveals a path toward reconciling the constitutional tensions between political accountability and impartiality protections in agency adjudication.43 43.See, e.g., Christopher J. Walker, Constitutional Tensions in Agency Adjudication, 104 Iowa L. Rev. 2679, 2680 (2019).Show More

This Article proceeds in three parts. Part I grounds this Article’s analysis in administrative history and reality. It explains the problems Congress sought to remedy by enacting the APA’s ALJ regime, examines that regime in detail, and explains the forces that threaten its continued viability. Part II argues that the APA’s hearing provisions are consistent with the Supreme Court’s recent separation of powers cases. The recent decision in United States v. Arthrex, Inc. is critical, for it establishes that the APA’s robust preservation of agency head control is sufficient to satisfy Article II. This in turn clarifies that if there is a constitutional infirmity in adjudication before independent agencies such as the SEC, it is to be found in for-cause protection for the agency’s principal officers. If the Supreme Court wants to address that issue, it should do so separately and directly. Part III goes deeper, arguing that the Supreme Court’s reconceptualization of administrative action over the last several decades presents deeper threats to administrative adjudication than has previously been recognized. It explores the challenges of embracing an executive theory of administrative adjudication, particularly in a time of presidential primacy. It argues that salvation can be found by embracing the substantial nondiscretionary aspects of formal adjudication and recognizing that proper restrictions on executive action are sometimes necessary to facilitate faithful execution of the law.

  1.  See 5 U.S.C. §§ 556(b)–(c), 557(b). ↑
  2.  561 U.S. 477 (2010). ↑
  3.  Id. at 484. ↑
  4.  Id. ↑
  5.  See 5 U.S.C. § 7521. ↑
  6.  See id. § 1202(d). ↑
  7.  In Free Enterprise Fund, the parties and the majority assumed that SEC commissioners can be removed only for cause, although the SEC’s organic statute contains no for-cause provision. See 561 U.S. at 487; see also id. at 545–46 (Breyer, J., dissenting, joined by Stevens, Ginsburg & Sotomayor, JJ.) (noting that the majority “assume[d] without deciding that . . . SEC Commissioners . . . are removable only ‘for cause’” (emphasis omitted)). SEC commissioners are, however, appointed for a term of years, see 15 U.S.C. § 78d(a), which perhaps should be interpreted as a protection against removal by the President for the duration of the term. See Jane Manners & Lev Menand, The Three Permissions: Presidential Removal and the Statutory Limits of Agency Independence, 121 Colum. L. Rev. 1, 5 (2021). But see Severino v. Biden, 71 F.4th 1038, 1045–46 (D.C. Cir. 2023) (rejecting this approach to interpreting a statutory term of years). ↑
  8.  U.S. Const. art. II, § 2, cl. 2; Lucia v. SEC, 138 S. Ct. 2044, 2049 (2018). Although Lucia dealt only with ALJs employed by the SEC, its holding likely reaches ALJs employed by other agencies because of the similarity of functions. See Guidance on Administrative Law Judges After Lucia v. SEC (S. Ct.), July 2018, 132 Harv. L. Rev. 1120, 1122–23 (2019). ↑
  9.  34 F.4th 446 (5th Cir. 2022), aff’d on other grounds, 144 S. Ct. 2117, 2127, 2139 (2024). ↑
  10.  Id. at 464. ↑
  11.  See Jarkesy, 144 S. Ct. at 2127, 2139; see also Petition for a Writ of Certiorari at I, Jarkesy, 144 S. Ct. 2117 (No. 22-859) (presenting several questions, including “[w]hether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection”). ↑
  12.  See Emily S. Bremer, The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. 377, 436–47 (2021) [hereinafter Bremer, Rediscovered Stages]. ↑
  13.  295 U.S. 602 (1935). ↑
  14.  Id. at 608. ↑
  15.  See, e.g., Ariz. Grocery Co. v. Atchison, 284 U.S. 370, 389 (1932) (same but involving the Interstate Commerce Commission); Morgan v. United States, 298 U.S. 468, 477, 481–82 (1936) (applying the New Deal conception of “administrative” action to ratemaking conducted by the Department of Agriculture). ↑
  16.  K.C. Davis, Walter Gellhorn & Paul Verkuil, Present at the Creation: Regulatory Reform Before 1946, 38 Admin. L. Rev. 511, 514 (1986). I have examined this research in detail in previous work. See Emily S. Bremer, The Undemocratic Roots of Agency Rulemaking, 108 Cornell L. Rev. 69, 90–93 (2022); Bremer, Rediscovered Stages, supra note 12, at 396–402. The relevant documents are available electronically in The Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946, https://heinonline.‌org/HOL/Index?collection=bremer. See generally Emily S. Bremer & Kathryn E. Kovacs, Essay, Introduction to The Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946 (HeinOnline 2021), 106 Minn. L. Rev. Headnotes 218 (2022) (offering a narrative introduction to the collection). ↑
  17.  See Off. of the Att’y Gen., Final Report of the Attorney General’s Committee on Administrative Procedure 2–4 (1941) [hereinafter Final Report]. The Final Report is based on 27 monographs examining the procedures and practices of “administrative” agencies. See id. at 3–4. Purely “executive” agencies—such as the Government Printing Office, the Bureau of Standards, the Civil Service Commission (“CSC”), the Bureau of the Budget, and the General Accounting Office—were left out of the study. See id. at 5. ↑
  18.  See 5 U.S.C. § 551(4)–(7). “This particular line may be the APA’s most important innovation.” Kristin E. Hickman & Aaron L. Nielson, Narrowing Chevron’s Domain, 70 Duke L.J. 931, 942 (2021). It was inspired by—but “not on all fours with”—the pre-APA definitions of quasi-judicial and quasi-legislative action. Emily S. Bremer, Blame (or Thank) the Administrative Procedure Act for Florida East Coast Railway, 97 Chi.-Kent L. Rev. 79, 96–97 (2022) [hereinafter Bremer, Blame (or Thank)]. ↑
  19.  The legislature was also influenced by concerns—made concrete by the World Wars and related political developments in Europe—about how to ensure effective administration without facilitating authoritarianism. See, e.g., Kathryn E. Kovacs, Avoiding Authoritarianism in the Administrative Procedure Act, 28 Geo. Mason L. Rev. 573, 596–600 (2021); Noah A. Rosenblum, The Antifascist Roots of Presidential Administration, 122 Colum. L. Rev. 1, 14, 48–49 (2022). ↑
  20.  See Final Report, supra note 17, at 5. ↑
  21.  See Bremer, Rediscovered Stages, supra note 12, at 433. ↑
  22.  See id. at 402–03. ↑
  23.  See Final Report, supra note 17, at 35–38, 41–42. ↑
  24.  Bremer, Rediscovered Stages, supra note 12, at 431. ↑
  25.  For an originalist discussion of the relationship between due process and separation of powers, see Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1677–78 (2012). The sovereign power and individual rights aspects of due process are also observable, for example, in personal jurisdiction doctrine. See, e.g., Thomas D. Rowe, Jr., Suzanna Sherry & Jay Tidmarsh, Civil Procedure 452 (5th ed. 2020) (“The Court has wavered about whether personal-jurisdiction doctrine rests on individual liberty or state sovereignty (or both).”). ↑
  26.  The APA’s procedures are a default because they apply unless Congress affirmatively elects to displace them. See 5 U.S.C. §§ 556(b), 559. ↑
  27.  See, e.g., Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 Sup. Ct. Rev. 345, 376 (describing “the constant and accelerating flight away from individualized, adjudicatory proceedings to generalized disposition through rulemaking”); see also Alan B. Morrison, The Administrative Procedure Act: A Living and Responsive Law, 72 Va. L. Rev. 253, 254–55 (1986); Ralph F. Fuchs, Development and Diversification in Administrative Rule Making, 72 Nw. U. L. Rev. 83, 89 (1977) (noting the “growing tendency” of many agencies to confront policy issues via rulemaking rather than adjudication). ↑
  28.  See generally Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001) (analyzing the President’s recent primacy in setting the direction of administrative process); cf. Michael A. Livermore, Political Parties and Presidential Oversight, 67 Ala. L. Rev. 45, 53–61 (2015) (describing how executive restructuring, presidential control in administrative law, and evolution in the operation of American political parties have all contributed to increase the President’s influence in federal administration). For an early warning that this development might disrupt the carefully mediated tension between law and politics in administrative law, see Peter L. Strauss, Presidential Rulemaking, 72 Chi.-Kent L. Rev. 965, 984–86 (1997). ↑
  29.  See Emily S. Bremer, Power Corrupts, 41 Yale J. on Regul. 426, 456–58 (2024) [hereinafter Bremer, Power Corrupts]. ↑
  30.  The Chevron doctrine—according to which courts would defer to reasonable agency interpretations of the statutes by which Congress has delegated power to them—was both cause and consequence of this change in focus. See Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 865–66 (1984). This doctrine governed for forty years, but the Supreme Court recently overruled Chevron. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024). ↑
  31.  See, e.g., City of Arlington v. FCC, 569 U.S. 290, 304 n.4 (2013) (explaining that administrative actions “take ‘legislative’ and ‘judicial’ forms, but they are exercises of—indeed under our constitutional structure they must be exercises of—the ‘executive Power.’”). ↑
  32.  “Presidential Administration intersects with (while being distinct from) . . . the unitary executive theory,” which itself has both stronger and weaker formulations. Elena Chachko, Administrative National Security, 108 Geo. L.J. 1063, 1115 n.331 (2020). The important point for purposes of this Article is that there has been a strong trend in administrative law, which has manifested doctrinally in the Court’s recent separation of powers cases, to embrace presidential control of administration and to look skeptically on legal impediments to such control. See Mark Tushnet, A Political Perspective on the Theory of the Unitary Executive, 12 U. Pa. J. Const. L. 313, 315, 325–29 (2010); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 545 (1994) (“Recently, the weight of academic opinion has shifted . . . to the theory of the unitary Executive.”); Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404, 404 (2023) (“Over the last decade, [the Supreme Court’s] majority has increasingly embraced a unitary theory of Article II . . . .”); cf. Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 Yale L.J. 2, 8 (2009) (arguing “that what count as ‘valid’ reasons under arbitrary and capricious review should be expanded to include certain political influences from the President, other executive officials, and members of Congress, so long as the political influences are openly and transparently disclosed in the agency’s rulemaking record”). ↑
  33.  Kagan, supra note 28, at 2306 (“The only mode of administrative action from which Clinton shrank was adjudication. At no time in his tenure did he attempt publicly to exercise the powers that a department head possesses over an agency’s on-the-record determinations.”); see also Wiener v. United States, 357 U.S. 349, 356 (1958) (holding that the adjudicative functions of the War Claims Commission “precluded the President from influencing the Commission in passing on a particular claim” and from removing a member of the Commission “for no reason other than that he preferred to have on that Commission men of his own choosing”); Myers v. United States, 272 U.S. 52, 135 (1926) (“Then there may be duties of a quasi-judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President can not in a particular case properly influence or control.”). ↑
  34.  Kagan, supra note 28, at 2362; see also Chachko, supra note 32, at 1122 (“Kagan herself did not argue for presidential administration of administrative adjudication.”). ↑
  35.  Kagan, supra note 28, at 2363; see also Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1211 (2013) (“Proponents of expansive presidential power to direct subordinates’ exercise of delegated discretion stop short of arguing for presidential directive power over adjudication, even where strictly executive agencies . . . are concerned.”). ↑
  36.  See, e.g., Jerry L. Mashaw & David Berke, Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience, 35 Yale J. on Regul. 549, 594–95 (2018) (noting, but “tak[ing] no position on,” the Obama Administration’s push for “more muscular use of adjudication and regulatory enforcement actions across agencies to further policy goals”); Memorandum from Dana Remus, Counsel to the President, to All White House Counsel Staff 1–2, 4–6, 10 (July 21, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/White-House-Policy-for-Contacts-with-Agencies-and-Department‌s.pdf [https://perma.cc/T2FA-VMNN] (advising White House staff not to contact agencies about the adjudication of specific cases). Although the Trump Administration issued some directives to agencies regarding the conduct of adjudication, these efforts were general, procedurally focused, and recommendatory. See, e.g., Memorandum from Paul J. Ray, Adm’r, Off. of Info. & Regul. Affs., to the Deputy Sec’ys of Exec. Dep’t & Agencies 1–3 (Aug. 31, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/08/M-20-31.pdf [https://perma‌.cc/9BNA-8WM9]. ↑
  37.  See, e.g., Vermeule, supra note 35, at 1212 (“If one believes that Presidents hold directive power over the delegated discretion of executive agencies, it is unclear why that power would not extend straightforwardly to adjudicative functions of agencies as well as rulemaking functions.”). ↑
  38.  Id. ↑
  39.  Although Free Enterprise Fund suggests that such a holistic, functional analysis is inappropriate, see 561 U.S. 477, 499–500 (2010), the Court’s more recent decision in United States v. Arthrex, Inc. embraces it, see 141 S. Ct. 1970, 1980–86 (2021). ↑
  40.  If there is an Article II problem to be found here, it is not in the APA’s regime but in the for-cause protection afforded to the principal officers who collectively form the head of agencies such as the SEC. The Court has so far been able to avoid squarely considering this question, but it should do so (in an appropriate case) instead of sacrificing the APA just to kick that can further down the road. See infra Section II.C. ↑
  41.  For example, ALJs must be lawyers, while non-ALJ adjudicators (often referred to as “administrative judges” or “AJs”) are not always subject to that requirement and often are not lawyers. See Kent Barnett, Against Administrative Judges, 49 U.C. Davis L. Rev. 1643, 1660, 1703 (2016). This may contribute to variable competence across adjudication programs and may also convey the impression that some kinds of agency adjudication are more important than others. Cf. Sara Sternberg Greene & Kristen M. Renberg, Judging Without a J.D., 122 Colum. L. Rev. 1287, 1291 (2022) (studying the use of lay judges in state courts and arguing that “allowing a system of nonlawyer judges perpetuates long-standing inequalities in how litigants experience courts”). ↑
  42.  Cf. Robert L. Glicksman & Richard E. Levy, The New Separation of Powers Formalism and Administrative Adjudication, 90 Geo. Wash. L. Rev. 1088, 1096 (2022) (“[P]roperly understood, most administrative adjudication is fully consistent with separation of powers formalism because it involves the execution of the law by officials within the executive branch.”). ↑

  43.  See, e.g., Christopher J. Walker, Constitutional Tensions in Agency Adjudication, 104 Iowa L. Rev. 2679, 2680 (2019). ↑

©Virginia Law Review Association. All rights reserved.