Article

Constitutionalism in Unexpected Places

Before, during, and after the ratification of the Federal Constitution of 1787, Americans believed that they were governed under an unwritten constitution, a constitution that described an arrangement of power, confirmed ancient rights, and restricted government action. The existence of this unwritten constitution, and particularly its continuity, is something legal scholars have not adequately understood. Instead, both originalists and scholars of the “living” constitution think of 1787 as a hard break from the past and a starting point for their investigations.

But Americans of the Founding generation did not share our view that the only constitution that mattered was the one the Framers designed. This Article focuses on a feature of American colonial life that reappeared with striking continuity for three generations after Independence—the vindication of unwritten constitutional rights by mob action, and specifically, the tradition of mobs turning to Indian costume to express a specific series of constitutional grievances. During the age of the Revolution, many Americans believed that mobs in the streets performed a legitimate role in the enforcement of their unwritten constitution. These mob actions involved ritualistic violence and consistent, non-linguistic symbolism. The endurance of this form of constitutional engagement, employing the same symbols to assert the same suite of legal claims, is simply astonishing. It is evidence of the tenacity of a series of constitutional commitments predating the Founding that were not encompassed by, or replaced with, a written constitution.

This Article also makes a methodological point. An exclusive focus on official texts and the words, pamphlets, and letters of great men robs historical investigation of its depth and risks missing crucial insights about the past. Important evidence revealing how Americans conceived of their constitution and of themselves as legal actors can be found in their customs, in behavior, in performances in public spaces, and in the life of important ideas in literature and art. This Article focuses on a peculiar phenomenon as a way of modeling this point. The white protestor in Indian costume may seem like an oddity, but a deeper investigation reveals him to be a missing link, a key to how Americans believed their society was constituted, how they thought about justice, and how they understood the obligations the Revolution laid upon its inheritors.

Introduction

What every schoolchild learns about the Boston Tea Party is that a group of men dressed themselves as Indians and dumped tea into the Boston Harbor. If the social studies teacher is good and the child is paying attention, the lesson will also connect those actions to the proto-Revolutionary slogan, “no taxation without representation.” But why do we teach the Boston Tea Party this way? We do not remember what other men were wearing when they did other historically significant things. For this event, however, the choice of costume has always been an integral element of the story. In the 1830s, an old shoemaker looking back on his role in the Tea Party began his recollections of that night this way:

It was now evening, and I immediately dressed myself in the costume of an Indian, equipped with a small hatchet, which I and my associates denominated the tomahawk, with which, and a club, after having painted my face and hands with coal dust in the shop of a blacksmith, I repaired to Griffin’s wharf, where the ships lay that contained the tea. When I first appeared in the street after being thus disguised, I fell in with many who were dressed, equipped and painted as I was, and who fell in with me, and marched in order to the place of our destination.1 1.A Citizen of New York, A Retrospect of the Boston Tea Party, with a Memoir of George R.T. Hewes, a Survivor of the Little Band of Patriots Who Drowned the Tea in Boston Harbour in 1773, at 38 (New York, S.S. Bliss 1834).Show More

A legal scholar reading this should immediately have a few questions. He dressed as an Indian, complete with a symbolic weapon that was not a tomahawk but that he decided to call a tomahawk. He painted his skin, and not just his face in order to disguise himself, but his hands, too. This was a performance meant to express something. If the shoemaker’s recollection is accurate, then the blacksmith from whom he borrowed coal dust would have understood its message and so would all of the men out that night in the streets of Boston. And whether accurate in every detail or not, there is significance in his choice to remember it that way. Those mechanics, artisans, and labor organizers who discovered and elevated this shoemaker in the 1830s as one of the last surviving members of a heroic generation, and who promoted his memoir as part of an elaborate Independence Day commemoration, must have understood the message he conveyed by making Indian costume so central to the story.2 2.See Alfred F. Young, George Robert Twelves Hewes (1742–1840): A Boston Shoemaker and the Memory of the American Revolution, 38 Wm. & Mary Q. 561, 619–20 (1981).Show More They must, in fact, have meant to amplify it. But from this distance of time, we no longer understand it.

Scholars know (or should know) the Boston Tea Party as a legal event. The Tea Party protestors asserted that their constitutional rights had been violated and demanded redress. But what we have failed to appreciate is that the Bostonians believed that their costumes added something to that claim.3 3.For another consideration of the importance and legal significance of clothing in early America, see Laura F. Edwards, James and His Striped Velvet Pantaloons: Textiles, Commerce, and the Law in the New Republic, J. Am. Hist. (forthcoming) (arguing that “[t]extiles . . . mattered” and that “[w]hen draped in this form of property, people of marginal status assumed distinct legal forms that were difficult to ignore”).Show More It is important that Americans dressed up to assert their rights and it is just as important that Americans remembered the costume as integral, although we may not understand why. And the mystery of it grows in importance when we realize that the costume element of the Boston Tea Party demonstration was far from unique to that event. From the 1760s through at least the 1840s, this was a common element in many protests against sheriffs bearing eviction notices or threatening action from a creditor. White Americans would dress up in Indian costume, make up their faces with their idea of Indian war paint, and participate in destructive and sometimes violent demonstrations.

This is a strange fact about the past, and difficult to square with our lionization of that group of ordinary men now ennobled by the title, “the Founding generation.” But this oddity, and others like it, are critical evidence if we are to understand the constitutional ideas and legal imaginations of men of that generation and those that followed. The Boston Tea Party participants thought they were making a constitutional argument and so did the all of the protestors dressing in costume to assert their claims in the decades that followed. But what did “constitution” mean? We are accustomed to using that word in one way before the Founding-era, and in a completely different sense as soon as Americans began writing their plans of government down. But the longevity and apparent power of this protest symbol attests to the endurance of a British North American form of constitutional expression that did not die out at the Founding and that was not successfully replaced by written constitutions for several generations.

Before, during, and after the ratification of the Federal Constitution of 1787, Americans believed that they were governed under an unwritten constitution, a constitution that confirmed ancient rights and that restricted government action. In discussing an “unwritten constitution,” this Article does not draw the distinction that some scholars have between the text of the written Constitution and the policies and principles that underlie it. Nor does it mean to invoke the distinction between the text of the Constitution and the penumbra that has developed around it since. To Americans of the Founding generation, the unwritten constitution was simply the fundamental law: the law of their forefathers, the law justifying their pride in their English heritage, the law that they fought to defend in the Revolution.

The existence of this unwritten constitution, and particularly its continuity, is something legal scholars have not adequately understood.4 4.In discussing the existence of an unwritten constitution at the Founding, I do not take sides in debates over “popular constitutionalism,” the idea that “the public generally should participate in shaping constitutional law more directly.” Mark Tushnet, Taking the Constitution Away from the Courts 194 (1999); see also Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 Harv. L. Rev. 1594, 1616 (2005) (reviewing Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004)); Larry Kramer, Response, 81 Chi.-Kent L. Rev. 1173, 1182 (2006); Suzanna Sherry, Putting the Law Back in Constitutional Law, 25 Const. Comment. 461, 462–63 (2009). Those debates focus on how the written Constitution is implemented—and specifically on the role of “the people,” in ensuring it is “properly interpreted.” Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 5–7 (2004). This Article, by contrast, focuses on a separate source of law entirely, an unwritten constitution, and how citizens both understood and enforced it during the Founding period.Show More Originalists have missed its importance because of their focus on the meaning of ratified constitutional text. They believe that the moment of ratification “fixed” constitutional rights and obligations, and that these may be found in the Constitution’s words. The main branches of originalist debate concern where to find the meaning of those words, whether in convention debates or in the ratification debates or elsewhere.5 5.It has become commonplace to remark on the size of the literature on originalism. See Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L.J. 1085, 1085 (1989) (systemizing the “voluminous” literature in existence thirty years ago); Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1, 3 (2009) (citing Farber and noting the literature’s multi-fold growth in the ensuing twenty years). I cannot convey the nuances of this literature here, but for an overview, see, e.g., Robert W. Bennett & Lawrence B. Solum, Constitutional Originalism: A Debate (2011). I mention originalism here only to bring out what I see as its undisputed premise: that its goal is to discover the content of a constitution created at a single moment in time—at its “origination.”Show More A premise underlying this view is that Founding-era Americans would have agreed that the written Constitution was the be-all-end-all, at least as far as constitutions go.6 6.See generally Antonin Scalia, Judicial Adherence to the Text of Our Basic Law: A Theory of Constitutional Interpretation, Address at the Catholic University of America (Oct. 18, 1996), transcript available at https://www.proconservative.net/PCVol5Is225ScaliaTheory​ConstlInterpretation.shtml; see also Randy E. Barnett, Underlying Principles, 24 Const. Comment. 405, 413 (2007) (“To remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text we are expounding.”).Show More

Non-originalist scholars, on the other hand, have sought to identify values that have come into the Constitution over its two hundred year “life.”7 7.Bruce Ackerman is perhaps the most prominent current theorist of “living constitutionalism.” See, e.g., Bruce Ackerman, The Living Constitution, 120 Harv. L. Rev. 1737 (2007). Bill Eskridge, who has argued that certain “super-statutes” have become so essential that they are now within the “working constitution,” also belongs among the greats. See William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 Duke L.J. 1215, 1216–17 (2001); see also Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 413–14 (2007) (defining the “functional” constitution to include formal practices, norms, and structures of government). My project departs from these now familiar forms of living constitutionalism. It is not about a written Constitution that evolves because it is “alive,” but about a separate and supplementary unwritten constitution that existed before and persisted through the social and legal changes of the 1780s. Some of the values of that unwritten constitution were also reflected in our written Constitution and some of them were not.Show More Building on the concept of a “penumbra” around constitutional terms, these scholars observe that the Constitution’s words have thickened with meaning over time and through their use by an evolving society.8 8.This idea’s scholarly heritage goes back at least to Karl Llewellyn, see K.N. Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1, 28 (1934), and its judicial heritage is arguably much older, see Brannon P. Denning & Glenn Harlan Reynolds, Comfortably Penumbral, 77 B.U. L. Rev. 1089, 1092–93 (1997) (arguing that McCulloch v. Maryland is “the quintessential example of penumbral reasoning”).Show More Akhil Amar’s recent book, America’s Unwritten Constitution, is a prime example of this genre: he argues that that through court cases and rights movements, Americans have built interstitial meanings into the Constitution.9 9.Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By, at ix–xi (2012).Show More But even those scholars start from the premise that all of this development began in 1787.

In short, originalist and non-originalist scholars share a perspective on the written Constitution: that it operated as a hard break.10 10.See, e.g., Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 6–7 (2015) (explaining that a “core idea[]” of originalist constitutional theory is that “the original meaning . . . of the constitutional text is fixed at the time each provision is framed and ratified”). The originalist shares this focus on that one moment with, for instance, Akhil Amar’s premise in America’s Unwritten Constitution. There, too, the critical question is, “[h]ow can Americans be faithful to a written Constitution”? Amar, supra note 9, at x. The difference between them is the belief that as Americans “venture beyond” the writing, they create what Amar calls an “unwritten Constitution” that “supports and supplements the written Constitution without supplanting it.” See id. at x–xi. This brand of “living constitutionalism” agrees with the premise that the only important American constitution was “born” in 1787 and began to develop from there. It does not address the topic of this Article: a strong heritage of constitutional values that were not included in the text, but that Americans continued to defend as their fundamental rights in the years after 1787.Show More Even when scholars and jurists look back further than the 1780s, they do so largely to learn whether certain terms contained in constitutional text incorporated a pre-existing common law meaning.11 11.See, e.g., Michael W. McConnell, Time, Institutions, and Interpretation, 95 B.U. L. Rev. 1745, 1756–57 (2015) (“The Seventh Amendment and the Habeas Corpus Clause have consistently been interpreted in light of the common law as of 1791.”); Bernadette Meyler, Towards a Common Law Originalism, 59 Stan. L. Rev. 551, 552 (2006) (“[O]riginalists urge that particular terms and phrases—including ‘law of nations,’ ‘habeas corpus,’ ‘privileges and immunities,’ ‘otherwise re-examined,’ and ‘assistance of counsel’—should be interpreted in light of their connotations under the common law.”); see also Saenz v. Roe, 526 U.S. 489, 524 (1999) (Thomas, J., dissenting) (“The colonists’ repeated assertions that they maintained the rights, privileges, and immunities of persons ‘born within the realm of England’ and ‘natural born’ persons suggests that, at the time of the founding, the terms ‘privileges’ and ‘immunities’ (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens and, more broadly, by all persons.”).Show More They do not look back to a constitution that exists separately from our written one. They share a view that whatever American colonial subjects believed a “constitution” was before the Revolution, Americans altered that idea completely once the property-holding gentlemen among them met and decided to write something down.

This Article starts from a different premise: that Americans of the Founding generation did not share our view that the only “constitution” that mattered was the one the Framers designed. Instead, having grown up as Britons, and having lost friends and family in a war to defend their rights as such, they still thought of themselves as the beneficiaries of a constitution of customary right. This is not to deny the importance of the written Constitution, or to dispute that it was significant that the Founders decided to write something down.12 12.See Nikolas Bowie, Why the Constitution Was Written Down, 71 Stan. L. Rev. 1397, 1400 (2019).Show More It is only to assert, as does the written Constitution itself, that the Founders did not intend that “[t]he enumeration in the Constitution[] of certain rights” would “be construed to deny or disparage others retained by the people.”13 13.U.S. Const. amend. IX.Show More

The way legal scholars ask historical questions has hindered our ability to appreciate the endurance and the continuity of unwritten constitutional­ism. It is common for a legal scholar to plumb the historical record to either confirm or deny a theory about what the Constitution means for us right now. But the archive does not function well as a magic eight ball. The yes/no/maybe/ask again approach to historical research, by fixating on narrow questions about constitutional text, forecloses really interesting questions about what a constitution is.

The problem with the way legal scholars use history is not only the questions we ask, it is also our methodology.14 14.Even a small sampling of the most recent articles doing originalist work reveals the sources they find relevant. See, e.g., Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 Stan. L. Rev. 443, 445 (2018) (canvassing legal dictionaries, convention debates, “The Federalist Papers,” and “Correspondence and Writings from Founding-Era Figures”). So closely tied is the project of originalism to these types of sources that there is a secondary literature debating how best to use each of them. See, e.g., Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 360 (2014); cf. Jennifer L. Mascott, The Dictionary as a Specialized Corpus, 2017 BYU L. Rev. 1557, 1561.Show More As any historian can tell you, going into an archive can be a humbling experience. What one finds in a historical record provides a small window onto the past, through which we can dimly perceive only a part of the action. When a legal scholar goes into the archive with a fixed question in mind, she must dismiss as irrelevant anything that is not responsive, along with anything that she does not understand. But given the very limited view the historical record provides, dismissing any evidence at all risks missing important truths. The puzzles one encounters during primary research are actually the archives’ greatest prizes. Instead of skipping over these to chase after hints in the records that might confirm a favorite hunch or cherished thesis, it is worthwhile to linger on the oddities. Exploring these reveals the past on its own terms, allowing the record to propose its own questions, and suggest its own answers.

This Article is about a protester that I will call the “white Indian,” because that is what this man would have called himself. He emerged again and again from archival research while I was hunting for something else. Wherever conflicts arose over the fairness of a law pitting owners or creditors against renters and debtors, whether in staid newspaper debates or in all-too-frequent armed insurrections, this white man in moccasins, or with a blanket around his shoulders, or with a painted face, or wielding a tomahawk, appeared as the avatar of the honest debtor or the dispossessed squatter. I was so puzzled by him that I stopped what I was doing and gave this recurring figure a closer look. I found that at least two scholarly works had already lingered over white Indians: an elegant short essay by Alan Taylor, written when he was still a graduate student, and a thoughtful full-length intellectual history by Philip Deloria.15 15.Philip J. Deloria, Playing Indian 5 (1998); Alan Taylor, “Stopping the Progres of Rogues and Deceivers”: A White Indian Recruiting Notice of 1808, 42 Wm. & Mary Q. 90, 94 (1985).Show More But given my preoccupations as a legal historian, I read these figures in a different light. I came to understand that they represented a series of interconnected ideas about authentic American identity and virtue.16 16.This Article does not fully explore import of this custom to the history of American racism, or its connections, such as they are, to the blackface tradition. For a cultural history starting point, see Dressing in Feathers: The Construction of the Indian in American Popular Culture 2–3 (S. Elizabeth Bird ed., 1996); Deloria, supra note 15, at 5.Show More And more than this, the Indian dress was a potent legal symbol, both for the people who wore the costume and the people who saw it.

I came to see the white man in Indian dress as an assertion of rights under America’s unwritten constitution. This Article will explain why, and in the process, model an alternative way of bringing history into legal scholarship. To take Americans’ unwritten constitution seriously, one has to see as relevant behaviors, norms, and cultural practices typically invisible to the legal scholar. Scholars parsing and reparsing text, opinions, dictionaries, and the like have missed the unwritten constitution because its defenders often made their claims out of court. My goal is not to resolve the relationship between the unwritten constitution and the written one. My goal is simply to convince you that it exists, to suggest that the relationship between it and the written Constitution is important, and to begin looking for this constitutionalism, which appears more often than not in unexpected places.

This Article proceeds in three parts. First, it explains why this strange artifact, mob action by white men in Indian costume, should be read as an expression of unwritten constitutionalism. Then, it will sound a theory on some of the specific constitutional rights this costume invoked. And finally, it will show how long this form of constitutional expression persisted and discuss some of the implications of this long life for how we should understand our legal past.

  1. * Associate Professor of Law and History, University of Virginia School of Law. I would like to thank Bridget Fahey, Risa Goluboff, Sally Gordon, Hendrik Hartog, Tony Kronman, Bill Nelson, Rich Schragger, and Eugene Sokoloff for helpful comments on an earlier draft. I am also grateful to the participants in the faculty workshop at Georgetown University Law Center and at the University of Pennsylvania School of Law’s Legal History Workshop. ↑
  2. A Citizen of New York, A Retrospect of the Boston Tea Party, with a Memoir of George R.T. Hewes, a Survivor of the Little Band of Patriots Who Drowned the Tea in Boston Harbour in 1773, at 38 (New York, S.S. Bliss 1834). ↑
  3. See Alfred F. Young, George Robert Twelves Hewes (1742–1840): A Boston Shoemaker and the Memory of the American Revolution, 38 Wm. & Mary Q. 561, 619–20 (1981). ↑
  4. For another consideration of the importance and legal significance of clothing in early America, see Laura F. Edwards, James and His Striped Velvet Pantaloons: Textiles, Commerce, and the Law in the New Republic, J. Am. Hist. (forthcoming) (arguing that “[t]extiles . . . mattered” and that “[w]hen draped in this form of property, people of marginal status assumed distinct legal forms that were difficult to ignore”). ↑
  5. In discussing the existence of an unwritten constitution at the Founding, I do not take sides in debates over “popular constitutionalism,” the idea that “the public generally should participate in shaping constitutional law more directly.” Mark Tushnet, Taking the Constitution Away from the Courts 194 (1999); see also Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 Harv. L. Rev. 1594, 1616 (2005) (reviewing Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004)); Larry Kramer, Response, 81 Chi.-Kent L. Rev. 1173, 1182 (2006); Suzanna Sherry, Putting the Law Back in Constitutional Law, 25 Const. Comment. 461, 462–63 (2009). Those debates focus on how the written Constitution is implemented—and specifically on the role of “the people,” in ensuring it is “properly interpreted.” Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 5–7 (2004). This Article, by contrast, focuses on a separate source of law entirely, an unwritten constitution, and how citizens both understood and enforced it during the Founding period. ↑
  6. It has become commonplace to remark on the size of the literature on originalism. See Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L.J. 1085, 1085 (1989) (systemizing the “voluminous” literature in existence thirty years ago); Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1, 3 (2009) (citing Farber and noting the literature’s multi-fold growth in the ensuing twenty years). I cannot convey the nuances of this literature here, but for an overview, see, e.g., Robert W. Bennett & Lawrence B. Solum, Constitutional Originalism: A Debate (2011). I mention originalism here only to bring out what I see as its undisputed premise: that its goal is to discover the content of a constitution created at a single moment in time—at its “origination.” ↑
  7. See generally Antonin Scalia, Judicial Adherence to the Text of Our Basic Law: A Theory of Constitutional Interpretation, Address at the Catholic University of America (Oct. 18, 1996), transcript available at https://www.proconservative.net/PCVol5Is225ScaliaTheory​ConstlInterpretation.shtml; see also Randy E. Barnett, Underlying Principles, 24 Const. Comment. 405, 413 (2007) (“To remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text we are expounding.”). ↑
  8.  Bruce Ackerman is perhaps the most prominent current theorist of “living constitutionalism.” See, e.g., Bruce Ackerman, The Living Constitution, 120 Harv. L. Rev. 1737 (2007). Bill Eskridge, who has argued that certain “super-statutes” have become so essential that they are now within the “working constitution,” also belongs among the greats. See William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 Duke L.J. 1215, 1216–17 (2001); see also Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 413–14 (2007) (defining the “functional” constitution to include formal practices, norms, and structures of government). My project departs from these now familiar forms of living constitutionalism. It is not about a written Constitution that evolves because it is “alive,” but about a separate and supplementary unwritten constitution that existed before and persisted through the social and legal changes of the 1780s. Some of the values of that unwritten constitution were also reflected in our written Constitution and some of them were not. ↑
  9. This idea’s scholarly heritage goes back at least to Karl Llewellyn, see K.N. Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1, 28 (1934), and its judicial heritage is arguably much older, see Brannon P. Denning & Glenn Harlan Reynolds, Comfortably Penumbral, 77 B.U. L. Rev. 1089, 1092–93 (1997) (arguing that McCulloch v. Maryland is “the quintessential example of penumbral reasoning”). ↑
  10. Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By, at ix–xi (2012). ↑
  11. See, e.g., Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 6–7 (2015) (explaining that a “core idea[]” of originalist constitutional theory is that “the original meaning . . . of the constitutional text is fixed at the time each provision is framed and ratified”). The originalist shares this focus on that one moment with, for instance, Akhil Amar’s premise in America’s Unwritten Constitution. There, too, the critical question is, “[h]ow can Americans be faithful to a written Constitution”? Amar, supra note 9, at x. The difference between them is the belief that as Americans “venture beyond” the writing, they create what Amar calls an “unwritten Constitution” that “supports and supplements the written Constitution without supplanting it.” See id. at x–xi. This brand of “living constitutionalism” agrees with the premise that the only important American constitution was “born” in 1787 and began to develop from there. It does not address the topic of this Article: a strong heritage of constitutional values that were not included in the text, but that Americans continued to defend as their fundamental rights in the years after 1787. ↑
  12. See, e.g., Michael W. McConnell, Time, Institutions, and Interpretation, 95 B.U. L. Rev. 1745, 1756–57 (2015) (“The Seventh Amendment and the Habeas Corpus Clause have consistently been interpreted in light of the common law as of 1791.”); Bernadette Meyler, Towards a Common Law Originalism, 59 Stan. L. Rev. 551, 552 (2006) (“[O]riginalists urge that particular terms and phrases—including ‘law of nations,’ ‘habeas corpus,’ ‘privileges and immunities,’ ‘otherwise re-examined,’ and ‘assistance of counsel’—should be interpreted in light of their connotations under the common law.”); see also Saenz v. Roe, 526 U.S. 489, 524 (1999) (Thomas, J., dissenting) (“The colonists’ repeated assertions that they maintained the rights, privileges, and immunities of persons ‘born within the realm of England’ and ‘natural born’ persons suggests that, at the time of the founding, the terms ‘privileges’ and ‘immunities’ (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens and, more broadly, by all persons.”). ↑
  13. See Nikolas Bowie, Why the Constitution Was Written Down, 71 Stan. L. Rev. 1397, 1400 (2019). ↑
  14. U.S. Const. amend. IX. ↑
  15. Even a small sampling of the most recent articles doing originalist work reveals the sources they find relevant. See, e.g., Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 Stan. L. Rev. 443, 445 (2018) (canvassing legal dictionaries, convention debates, “The Federalist Papers,” and “Correspondence and Writings from Founding-Era Figures”). So closely tied is the project of originalism to these types of sources that there is a secondary literature debating how best to use each of them. See, e.g., Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 360 (2014); cf. Jennifer L. Mascott, The Dictionary as a Specialized Corpus, 2017 BYU L. Rev. 1557, 1561. ↑
  16. Philip J. Deloria, Playing Indian 5 (1998); Alan Taylor, “Stopping the Progres of Rogues and Deceivers”: A White Indian Recruiting Notice of 1808, 42 Wm. & Mary Q. 90, 94 (1985). ↑
  17. This Article does not fully explore import of this custom to the history of American racism, or its connections, such as they are, to the blackface tradition. For a cultural history starting point, see Dressing in Feathers: The Construction of the Indian in American Popular Culture 2–3 (S. Elizabeth Bird ed., 1996); Deloria, supra note 15, at 5. ↑

The New Gatekeepers: Private Firms as Public Enforcers

The world’s largest businesses must routinely police other businesses. By public mandate, Facebook monitors app developers’ privacy safeguards, Citibank audits call centers for deceptive sales practices, and Exxon reviews offshore oil platforms’ environmental standards. Scholars have devoted significant attention to how policy makers deploy other private sector enforcers, such as certification bodies, accountants, lawyers, and other periphery “gatekeepers.” However, the literature has paid insufficient attention to the emerging regulatory conscription of large firms at the center of the economy. This Article examines the rise of the enforcer-firm through case studies of the industries that are home to the most valuable companies in technology, banking, oil, and pharmaceuticals. Over the past two decades, administrative agencies have used legal rules, guidance documents, and court orders to mandate that private firms in these and other industries perform the duties of a public regulator. More specifically, firms must write rules in their contracts that reserve the right to inspect third parties. When they find violations, they must pressure or punish the wrongdoer. This form of governance has important intellectual and policy implications. It imposes more of a public duty on the firm, alters corporate governance, and may even reshape business organizations. It also gives resource-strapped regulators promising tools. If designed poorly, however, the enforcer-firm will create an expansive area of unaccountable authority. Any comprehensive account of the firm or regulation must give a prominent role to the administrative state’s newest gatekeepers.

Introduction

In 2018, Facebook Chairman and CEO Mark Zuckerberg faced senators on national television regarding conduct that prompted the Federal Trade Commission (FTC) to seek its largest ever fine.1 1.Cecilia Kang, A Facebook Settlement with the F.T.C. Could Run into the Billions, N.Y. Times, Feb. 15, 2019, at B6.Show More The main issue was not what Facebook did directly to its users. Instead, the hearing focused on the social network’s failure to restrain third parties. Most notably, the political consulting firm Cambridge Analytica had accessed millions of users’ accounts in an effort to support election candidates.2 2.Katy Steinmetz, Mark Zuckerberg Survived Congress. Now Facebook Has to Survive the FTC, Time (Apr. 13, 2018, 12:42 PM), https://time.com/5237900/facebook-ftc-privacy-data-cambridge-analytica/ [https://perma.cc/4SJJ-YHP9].Show More Before Zuckerberg’s Senate testimony, the FTC had already sued Google and Amazon to force them to monitor third parties for privacy violations and in-app video game purchases by children that sometimes reached in the thousands of dollars.3 3.See FTC v. Amazon.com, Inc., No. C14-1038-JCC, 2016 WL 10654030, at *8 (W.D. Wash. July 22, 2016) (finding Amazon accountable for in-app charges); Agreement Containing Consent Order at 5, Google Inc., No. 102-3136, (F.T.C. Mar. 30, 2011), https://www.ftc.gov/sites/default/files/documents/cases/2011/03/110330googlebuzzagreeorder.pdf [https://perma.cc/7R6W-5VNP] (ordering Google to require “service providers by contract to implement and maintain appropriate privacy protections”).Show More In other words, the FTC is requiring large technology companies to act in ways traditionally associated with public regulators—by policing other businesses for legal violations.

Over time, policy makers have enlisted a large array of private actors in their quest for optimal regulatory design.4 4.See, e.g., Kenneth A. Bamberger, Regulation as Delegation: Private Firms, Decisionmaking, and Accountability in the Administrative State, 56 Duke L.J. 377, 453 (2006) (conceiving of regulators’ decisions to let regulated entities fill in vague mandates as delegation); Cary Coglianese & David Lazer, Management-Based Regulation: Prescribing Private Management to Achieve Public Goals, 37 Law & Soc’y Rev. 691, 691, 726 (2003) (describing the “intertwining of the public and private sectors”); Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. Rev. 543, 549–56 (2000) (surveying the great diversity of private governance actors); Gillian E. Metzger, Privatization as Delegation, 103 Colum. L. Rev. 1367, 1369 (2003) (conceiving of privatization of health care, welfare provision, prisons, and public education as delegation); Martha Minow, Public and Private Partnerships: Accounting for the New Religion, 116 Harv. L. Rev. 1229, 1237–42 (2003) (exploring implications of privatization for public values).Show More Scholarship on the private role in public governance has focused on third-party enforcers whose main function is to provide a support service. Those enforcers include self-regulatory organizations formed by industry and independent auditors mandated by regulators.5 5.See Bamberger, supra note 4, at 452–58; Freeman, supra note 4, at 635, 644. As another example, in policing stock exchanges, the Securities and Exchange Commission (SEC) relies heavily on self-regulatory organizations to monitor wrongdoing and propose rules. Jennifer M. Pacella, If the Shoe of the SEC Doesn’t Fit: Self-Regulatory Organizations and Absolute Immunity, 58 Wayne L. Rev. 201, 202 (2012). Courts also order third-party monitors. See Veronica Root, The Monitor-“Client” Relationship, 100 Va. L. Rev. 523, 531–33 (2014).Show More The corporate law strand of this enforcement literature emphasizes a network of “gatekeepers,” such as lawyers, accountants, and certifiers who guard against compliance and governance failures.6 6.See John C. Coffee, Jr., Gatekeepers: The Professions and Corporate Governance 2–3 (2006) (chronicling the evolution of auditors, attorneys, securities analysts, and credit-rating agencies in guarding against corporate governance failures); Assaf Hamdani, Gatekeeper Liability, 77 S. Cal. L. Rev. 53, 117–18 (2003) (discussing the need to expand gatekeeper liability in the wake of the Enron fraud scandal); Reinier H. Kraakman, Gatekeepers: The Anatomy of a Third-Party Enforcement Strategy, 2 J.L. Econ. & Org. 53, 54 (1986) (contrasting whistleblowers with gatekeepers, who are third parties that can “prevent misconduct by withholding support”).Show More For instance, before releasing annual reports, a publicly traded company must obtain the signoff of a certified accountant.7 7.15 U.S.C. § 78m(a) (2018) (“Every issuer of a security . . . shall file with the Commission . . . such annual reports (and such copies thereof), certified if required by the rules and regulations of the Commission by independent public accountants . . . .”).Show More In these more familiar private enforcement contexts, the private “cops on the beat”8 8.Kraakman, supra note 6, at 53 n.1 (attributing to Jeremy Bentham the “cop-on-the-beat” metaphor and using it to describe gatekeepers).Show More are ancillary actors rather than core market participants.9 9.The literature has also extensively analyzed self-regulation as part of a broader new governance that arose in recent decades. Administrative agencies now pursue collaborative and responsive models of public governance designed to encourage the business sector to self-regulate. See, e.g., Ian Ayres & John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate 3 (1992); Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. Rev. 1, 6–7 (1997). Additionally, large businesses have dramatically grown their compliance departments to police the firm from within. See, e.g., Sean J. Griffith, Corporate Governance in an Era of Compliance, 57 Wm. & Mary L. Rev. 2075, 2077 (2016); Kimberly D. Krawiec, Organizational Misconduct: Beyond the Principal-Agent Model, 32 Fla. St. U. L. Rev. 571, 572 (2005); Veronica Root, Coordinating Compliance Incentives, 102 Cornell L. Rev. 1003, 1004 (2017). This important and nascent literature on corporate compliance has remained focused on the firm’s role in overseeing internal operations, or on traditional gatekeepers doing so.Show More

This Article demonstrates how policymakers have enlisted a new class of more powerful third-party enforcers: the businesses at the heart of the economy. The ten largest American companies by valuation operate in information technology, finance, oil, and pharmaceuticals.10 10.Fortune 500 List, Fortune (last visited Oct. 18, 2019), http://fortune.com/fortune­500/list/filtered?sortBy=mktval (identifying the ten most valuable American companies as Apple, Alphabet, Microsoft, Amazon, Berkshire Hathaway, Facebook, JPMorgan Chase, Johnson & Johnson, Exxon Mobil, and Bank of America). One of these companies, Berkshire Hathaway, is a conglomerate operating in diverse industries, including finance, while Johnson & Johnson sells pharmaceuticals in addition to consumer goods. Berkshire Hathaway, Fortune (updated Mar. 29, 2018), https://fortune.com/fortune500/2018/berkshire-hathaway/; Johnson & Johnson, Fortune (updated Mar. 29, 2018), https://fortune.com/fortune500/2018/johnson-johnson/.Show More A regulator has put leading firms in each of these industries on notice about their responsibilities for third-party oversight.11 11.See infra Part II.Show More In addition to the FTC, the Environmental Protection Agency (EPA)—along with the Department of Justice (DOJ)—requires BP Oil and other energy companies to audit offshore oil platform operators for environmental compliance.12 12.Consent Decree Among Defendant BP Exploration & Production Inc., the United States of America, and the States of Alabama, Florida, Louisiana, Mississippi, and Texas at 32–33, In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mex., on Apr. 20, 2010, No. 10-MDL-2179 (E.D. La. Oct. 5, 2015), ECF No. 15436-1 [hereinafter BP Consent Decree].Show More The Food and Drug Administration (FDA) expects Pfizer and other drug companies to ensure suppliers and third-party labs follow the agency’s health and safety guidelines.13 13.21 C.F.R. § 211.22(a) (2018) (explaining best practices for quality control of contractors); FDA Warning Letter from Cheryl A. Bigham, Dist. Dir., Kan. City Dist., Office of Regulatory Affairs, to Thomas Handel, President & Gen. Manager, Meridian Med. Techs., Inc., a Pfizer Co. (Sept. 5, 2017), https://www.fda.gov/iceci/enforcementactions/warningletters/2017/ucm­574981.htm [https://perma.cc/JMX9-V7VL].Show More The Consumer Financial Protection Bureau (CFPB) orders financial institutions, such as American Express, to monitor independent debt collectors and call centers for deceptive practices.14 14.Am. Express Centurion Bank, CFPB No. 2012-CFPB-0002 (Oct. 1, 2012) (joint consent order).Show More

The widespread conscription of businesses as enforcers—also called “enforcer-firms” below—shares characteristics with, but differs meaningfully from, prior iterations of third-party regulation. For instance, the FTC’s original administrative order required Facebook to hire a third-party auditor—an example of the old gatekeeper model—to certify Facebook’s compliance.15 15.Facebook, Inc., FTC File No. 0923184, No. C-4365, at 3–4 (F.T.C. July 27, 2012) (decision and order).Show More In that arrangement, refusing to sign off on Facebook’s biennial reports to the FTC constituted the auditor’s main sanction.16 16.See id. at 6.Show More Facebook could, however, respond to that sanction by bringing its business elsewhere.17 17.The consent order does not prevent such a response. See id.Show More That ability to retaliate weakens traditional gatekeepers’ power and independence.18 18.See Joel S. Demski, Corporate Conflicts of Interest, 17 J. Econ. Persp. 51, 57 (2003).Show More

In contrast, the enforcer-firm is usually the client—or at least a crucial business partner—of the third parties it regulates. Its main sanction is to cease doing business with those third parties, which can prove devastating.19 19.See infra Section IV.A.Show More The client relationship that weakens traditional gatekeepers thus strengthens the enforcer-firm. In short, policymakers have begun relying on third-party enforcement by the real gatekeepers of the economy: the firms who control access to core product markets.20 20.A diversified firm may play both a new and traditional gatekeeper role. For instance, by allowing a company to serve as both a commercial bank and investment bank, the law enables large financial institutions to operate as both traditional gatekeepers—overseeing their clients by underwriting securities, prompted by liability avoidance under the Securities Act of 1933—and as new gatekeepers, being the clients who hire third-party businesses. See infraSection II.A; Kraakman, supranote 6, at 82–83.Show More

In highlighting an overlooked enforcement model, this Article builds on the literature scrutinizing the increasingly narrow divide between private businesses and the administrative state.21 21.See supra note 4 and accompanying text.Show More Although that scholarship has yet to examine the enforcer-firm in any sustained manner,22 22.To the extent scholars have discussed mandated third-party governance it has been in passing or in narrower contexts such as in criminal or international law. See, e.g., Larry Catá Backer, Surveillance and Control: Privatizing and Nationalizing Corporate Monitoring After Sarbanes-Oxley, 2004 Mich. St. L. Rev. 327, 433–34 (2004) (referencing how the Bank Secrecy Act causes a larger number of businesses to become “part of the network of the state’s eyes and ears”); John Braithwaite, Responsive Regulation and Developing Economies, 34 World Dev. 884, 889–90 (2006) (exploring how domestic firms can serve as a means of reaching foreign actors); Stavros Gadinis & Colby Mangels, Collaborative Gatekeepers, 73 Wash. & Lee L. Rev. 797, 910–11 (2016) (focusing on money laundering); Itai Grinberg, The Battle over Taxing Offshore Accounts, 60 UCLA L. Rev. 304, 304 (2012) (referencing a “growing consensus that financial institutions should act as cross-border tax intermediaries”). For other ways that scholars have recognized that businesses regulate other firms, see infra Part I.Show More mandated third-party governance raises some similar accountability issues as previous generations of third-party enforcement. In particular, as a new area of quasi-regulatory activity unlikely to be overturned by judicial review, conscripted enforcement lacks transparency and traditional measures of public involvement, such as notice and comment rulemaking.23 23.See, e.g., Rachel E. Barkow, Overseeing Agency Enforcement, 84 Geo. Wash. L. Rev. 1129, 1130 (2016) (“Most aspects of agency enforcement policy generally escape judicial review.”); Freeman, supra note 4, at 647 (“Most self-regulatory programs lack the transparency and public involvement that characterize legislative rulemaking.”); Lesley K. McAllister, Regulation by Third-Party Verification, 53 B.C. L. Rev. 1, 3–4 (2012) (identifying accountability challenges with third-party enforcement models).Show More

However, if designed well, the enforcer-firm offers some hope for improving upon prior regulatory models’ accountability. Because enforcer-firms often sell directly to consumers, they may prove more responsive to public concerns when compared to traditional gatekeepers, which interact most closely with regulated entities.24 24.See, e.g., Coffee, supra note 6, at 15–18 (describing gatekeeper shortcomings).Show More And because the enforcer-firm is itself a prime target of public regulation, it would be easier for an administrative agency to oversee it than to add a whole new category of firms as required for oversight of traditional gatekeepers.25 25.See infra Section IV.B.Show More The conscription of businesses proved crucial in other administrative contexts, including the implementation of a personal income tax.26 26.Ajay K. Mehrotra, Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877–1929, at 282–83 (2013).Show More The enforcer-firm could, by analogy, enable the regulatory state to bring dispersed business actors into compliance.

None of this should be taken as an endorsement of the enforcer-firm, which is too new and understudied to yield strong normative conclusions. However, an openness to the upsides of the enforcer-firm responds to the critique that administrative law scholars have too often portrayed private actors as an intrusion into legitimacy, which prevents “imagining the means by which private actors might contribute to accountability.”27 27.Freeman, supra note 4, at 675. Numerous scholars have taken up this call in other contexts. See, e.g., Sarah E. Light, The Law of the Corporation as Environmental Law, 71 Stan. L. Rev. 137, 139–41 (2019) (calling for a holistic view of corporations’ role in promoting environmental goals).Show More

Mandated third-party governance also speaks to vibrant corporate law inquiries. Scholars have paid considerable attention to the duties of directors and officers, personal liability for corporate wrongdoing, and organizational structure.28 28.See generally Nicolai J. Foss et al., The Theory of the Firm, in 3 Encyclopedia of Law and Economics 631 (Boudewijn Bouckaert & Gerrit De Geest eds., 2000); infra Part III.Show More Conscripted enforcement shapes each of these areas and pushes against depictions of the firm emphasizing its private nature. Those depictions are rooted in the influential metaphor—sometimes described as the most dominant theory of the firm—that the firm is a “nexus of contracts” among owners, managers, laborers, suppliers, and customers.29 29.See, e.g., Melvin A. Eisenberg, The Conception That the Corporation Is a Nexus of Contracts, and the Dual Nature of the Firm, 24 J. Corp. L. 819, 820 (1999); Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. Fin. Econ. 305, 310 (1976); Steven L. Schwarcz, Misalignment: Corporate Risk-Taking and Public Duty, 92 Notre Dame L. Rev. 1, 26 (2016).Show More The firm remains exceedingly private. But by directing businesses to write enforcement-oriented contract clauses and monitor external relationships for legal violations, as a descriptive matter the state is pushing the firm toward a larger public role.30 30.See infra Section III.A.Show More

That insight is relevant beyond theory and institutional design. In the highest legislative circles and corporate boardrooms, debates are unfolding about what duties corporations owe to society, with some taking particular aim at the idea that shareholders should come above all other stakeholders.31 31.See Elizabeth Warren, Companies Shouldn’t Be Accountable Only to Shareholders, Wall St. J., Aug. 15, 2018, at A17; Larry Fink, Larry Fink’s 2018 Letter to CEOs: A Sense of Purpose, BlackRock, https://www.blackrock.com/corporate/investor-relations/2018-larry-fin­k-ceo-letter [https://perma.cc/P9X6-HN85] (last visited Jan. 13, 2020); Martin Lipton et al., It’s Time to Adopt the New Paradigm, Harv. L. Sch. F. Corp. Governance, https://corpgov.­law.harvard.edu/2019/02/11/its-time-to-adopt-the-new-paradigm [https://perma.cc/3XH9-SSRS] (last visited Jan. 13, 2020); Business Roundtable Redefines the Purpose of a Corporation to Promote ‘An Economy That Serves All Americans,’ Business Roundtable (Aug. 19, 2019), [https://perma.cc/9K2F-2HLG]. On shareholder primacy, see infra note 189 and accompanying text.Show More Conscripted enforcement marks a significant uptick in federal regulatory involvement in the firm by imposing more of an affirmative public duty to act.32 32.See infra Section III.D.Show More Cast against the backdrop of the firm as public enforcer, calls for business leaders to do more for society appear less disconnected from reality than would be the case under a largely private conception of the firm.33 33.There is arguably a gap between rhetoric and reality. See Marcel Kahan & Edward Rock, Symbolic Corporate Governance Politics, 94 B.U. L. Rev. 1997, 2042 (2014).Show More

The Article is structured as follows. Part I provides an overview of the well-studied ways that private entities serve as enforcers. Part II offers four case studies of how regulators have implemented mandated enforcement of third parties in some of the largest U.S. industries: the FTC and technology, the CFPB and banking, the EPA and oil, and the FDA and pharmaceuticals. Part III examines how mandated enforcement alters the firm’s contracts, relationships, and governance. It also explores shifts in liability at the personal and entity level, which could influence organizational structure. Part IV concludes by considering implications for the effectiveness and accountability of the administrative state.

  1. * Associate Professor of Law, Boston University; Affiliated Fellow, Yale Law School Information Society Project. For extremely valuable input, I am grateful to Hilary Allen, William Eskridge, George Geis, Anna Gelpern, Jonathan Lipson, Nicholas Parrillo, Carla Reyes, Kevin Schwartz, Andrew Tuch, Michael Vandenbergh, David Walker, and Jay Wexler, and to workshop participants at Boston University, the University of Pennsylvania, the University of Virginia, and Yale ISP. Special thanks to Eric Talley for unusually formative early comments. Jacob Axelrod, Sam Burgess, Omeed Firoozgan, Christopher Hamilton, Allison Mcsorley, Tyler Stites, Kelsey Sullivan, and Gavin Tullis provided excellent research assistance. The Virginia Law Review editors, and particularly Mark Russell, were tremendously thorough and helpful throughout. ↑
  2. Cecilia Kang, A Facebook Settlement with the F.T.C. Could Run into the Billions, N.Y. Times, Feb. 15, 2019, at B6. ↑
  3. Katy Steinmetz, Mark Zuckerberg Survived Congress. Now Facebook Has to Survive the FTC, Time (Apr. 13, 2018, 12:42 PM), https://time.com/5237900/facebook-ftc-privacy-data-cambridge-analytica/ [https://perma.cc/4SJJ-YHP9]. ↑
  4. See FTC v. Amazon.com, Inc., No. C14-1038-JCC, 2016 WL 10654030, at *8 (W.D. Wash. July 22, 2016) (finding Amazon accountable for in-app charges); Agreement Containing Consent Order at 5, Google Inc., No. 102-3136, (F.T.C. Mar. 30, 2011), https://www.ftc.gov/sites/default/files/documents/cases/2011/03/110330googlebuzzagreeorder.pdf [https://perma.cc/7R6W-5VNP] (ordering Google to require “service providers by contract to implement and maintain appropriate privacy protections”). ↑
  5. See, e.g., Kenneth A. Bamberger, Regulation as Delegation: Private Firms, Decisionmaking, and Accountability in the Administrative State, 56 Duke L.J. 377, 453 (2006) (conceiving of regulators’ decisions to let regulated entities fill in vague mandates as delegation); Cary Coglianese & David Lazer, Management-Based Regulation: Prescribing Private Management to Achieve Public Goals, 37 Law & Soc’y Rev. 691, 691, 726 (2003) (describing the “intertwining of the public and private sectors”); Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. Rev. 543, 549–56 (2000) (surveying the great diversity of private governance actors); Gillian E. Metzger, Privatization as Delegation, 103 Colum. L. Rev. 1367, 1369 (2003) (conceiving of privatization of health care, welfare provision, prisons, and public education as delegation); Martha Minow, Public and Private Partnerships: Accounting for the New Religion, 116 Harv. L. Rev. 1229, 1237–42 (2003) (exploring implications of privatization for public values). ↑
  6. See Bamberger, supra note 4, at 452–58; Freeman, supra note 4, at 635, 644. As another example, in policing stock exchanges, the Securities and Exchange Commission (SEC) relies heavily on self-regulatory organizations to monitor wrongdoing and propose rules. Jennifer M. Pacella, If the Shoe of the SEC Doesn’t Fit: Self-Regulatory Organizations and Absolute Immunity, 58 Wayne L. Rev. 201, 202 (2012). Courts also order third-party monitors. See Veronica Root, The Monitor-“Client” Relationship, 100 Va. L. Rev. 523, 531–33 (2014). ↑
  7. See John C. Coffee, Jr., Gatekeepers: The Professions and Corporate Governance 2–3 (2006) (chronicling the evolution of auditors, attorneys, securities analysts, and credit-rating agencies in guarding against corporate governance failures); Assaf Hamdani, Gatekeeper Liability, 77 S. Cal. L. Rev. 53, 117–18 (2003) (discussing the need to expand gatekeeper liability in the wake of the Enron fraud scandal); Reinier H. Kraakman, Gatekeepers: The Anatomy of a Third-Party Enforcement Strategy, 2 J.L. Econ. & Org. 53, 54 (1986) (contrasting whistleblowers with gatekeepers, who are third parties that can “prevent misconduct by withholding support”). ↑
  8. 15 U.S.C. § 78m(a) (2018) (“Every issuer of a security . . . shall file with the Commission . . . such annual reports (and such copies thereof), certified if required by the rules and regulations of the Commission by independent public accountants . . . .”). ↑
  9. Kraakman, supra note 6, at 53 n.1 (attributing to Jeremy Bentham the “cop-on-the-beat” metaphor and using it to describe gatekeepers). ↑
  10. The literature has also extensively analyzed self-regulation as part of a broader new governance that arose in recent decades. Administrative agencies now pursue collaborative and responsive models of public governance designed to encourage the business sector to self-regulate. See, e.g., Ian Ayres & John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate 3 (1992); Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. Rev. 1, 6–7 (1997). Additionally, large businesses have dramatically grown their compliance departments to police the firm from within. See, e.g., Sean J. Griffith, Corporate Governance in an Era of Compliance, 57 Wm. & Mary L. Rev. 2075, 2077 (2016); Kimberly D. Krawiec, Organizational Misconduct: Beyond the Principal-Agent Model, 32 Fla. St. U. L. Rev. 571, 572 (2005); Veronica Root, Coordinating Compliance Incentives, 102 Cornell L. Rev. 1003, 1004 (2017). This important and nascent literature on corporate compliance has remained focused on the firm’s role in overseeing internal operations, or on traditional gatekeepers doing so. ↑
  11. Fortune 500 List, Fortune (last visited Oct. 18, 2019), http://fortune.com/fortune­500/list/filtered?sortBy=mktval (identifying the ten most valuable American companies as Apple, Alphabet, Microsoft, Amazon, Berkshire Hathaway, Facebook, JPMorgan Chase, Johnson & Johnson, Exxon Mobil, and Bank of America). One of these companies, Berkshire Hathaway, is a conglomerate operating in diverse industries, including finance, while Johnson & Johnson sells pharmaceuticals in addition to consumer goods. Berkshire Hathaway, Fortune (updated Mar. 29, 2018), https://fortune.com/fortune500/2018/berkshire-hathaway/; Johnson & Johnson, Fortune (updated Mar. 29, 2018), https://fortune.com/fortune500/2018/johnson-johnson/. ↑
  12. See infra Part II. ↑
  13. Consent Decree Among Defendant BP Exploration & Production Inc., the United States of America, and the States of Alabama, Florida, Louisiana, Mississippi, and Texas at 32–33, In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mex., on Apr. 20, 2010, No. 10-MDL-2179 (E.D. La. Oct. 5, 2015), ECF No. 15436-1 [hereinafter BP Consent Decree]. ↑
  14. 21 C.F.R. § 211.22(a) (2018) (explaining best practices for quality control of contractors); FDA Warning Letter from Cheryl A. Bigham, Dist. Dir., Kan. City Dist., Office of Regulatory Affairs, to Thomas Handel, President & Gen. Manager, Meridian Med. Techs., Inc., a Pfizer Co. (Sept. 5, 2017), https://www.fda.gov/iceci/enforcementactions/warningletters/2017/ucm­574981.htm [https://perma.cc/JMX9-V7VL]. ↑
  15. Am. Express Centurion Bank, CFPB No. 2012-CFPB-0002 (Oct. 1, 2012) (joint consent order). ↑
  16. Facebook, Inc., FTC File No. 0923184, No. C-4365, at 3–4 (F.T.C. July 27, 2012) (decision and order). ↑
  17. See id. at 6. ↑
  18. The consent order does not prevent such a response. See id. ↑
  19. See Joel S. Demski, Corporate Conflicts of Interest, 17 J. Econ. Persp. 51, 57 (2003). ↑
  20. See infra Section IV.A. ↑
  21. A diversified firm may play both a new and traditional gatekeeper role. For instance, by allowing a company to serve as both a commercial bank and investment bank, the law enables large financial institutions to operate as both traditional gatekeepers—overseeing their clients by underwriting securities, prompted by liability avoidance under the Securities Act of 1933—and as new gatekeepers, being the clients who hire third-party businesses. See infra Section II.A; Kraakman, supra note 6, at 82–83. ↑
  22. See supra note 4 and accompanying text. ↑
  23. To the extent scholars have discussed mandated third-party governance it has been in passing or in narrower contexts such as in criminal or international law. See, e.g., Larry Catá Backer, Surveillance and Control: Privatizing and Nationalizing Corporate Monitoring After Sarbanes-Oxley, 2004 Mich. St. L. Rev. 327, 433–34 (2004) (referencing how the Bank Secrecy Act causes a larger number of businesses to become “part of the network of the state’s eyes and ears”); John Braithwaite, Responsive Regulation and Developing Economies, 34 World Dev. 884, 889–90 (2006) (exploring how domestic firms can serve as a means of reaching foreign actors); Stavros Gadinis & Colby Mangels, Collaborative Gatekeepers, 73 Wash. & Lee L. Rev. 797, 910–11 (2016) (focusing on money laundering); Itai Grinberg, The Battle over Taxing Offshore Accounts, 60 UCLA L. Rev. 304, 304 (2012) (referencing a “growing consensus that financial institutions should act as cross-border tax intermediaries”). For other ways that scholars have recognized that businesses regulate other firms, see infra Part I. ↑
  24. See, e.g., Rachel E. Barkow, Overseeing Agency Enforcement, 84 Geo. Wash. L. Rev. 1129, 1130 (2016) (“Most aspects of agency enforcement policy generally escape judicial review.”); Freeman, supra note 4, at 647 (“Most self-regulatory programs lack the transparency and public involvement that characterize legislative rulemaking.”); Lesley K. McAllister, Regulation by Third-Party Verification, 53 B.C. L. Rev. 1, 3–4 (2012) (identifying accountability challenges with third-party enforcement models). ↑
  25. See, e.g., Coffee, supra note 6, at 15–18 (describing gatekeeper shortcomings). ↑
  26. See infra Section IV.B. ↑
  27. Ajay K. Mehrotra, Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877–1929, at 282–83 (2013). ↑
  28. Freeman, supra note 4, at 675. Numerous scholars have taken up this call in other contexts. See, e.g., Sarah E. Light, The Law of the Corporation as Environmental Law, 71 Stan. L. Rev. 137, 139–41 (2019) (calling for a holistic view of corporations’ role in promoting environmental goals). ↑
  29. See generally Nicolai J. Foss et al., The Theory of the Firm, in 3 Encyclopedia of Law and Economics 631 (Boudewijn Bouckaert & Gerrit De Geest eds., 2000); infra Part III. ↑
  30. See, e.g., Melvin A. Eisenberg, The Conception That the Corporation Is a Nexus of Contracts, and the Dual Nature of the Firm, 24 J. Corp. L. 819, 820 (1999); Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. Fin. Econ. 305, 310 (1976); Steven L. Schwarcz, Misalignment: Corporate Risk-Taking and Public Duty, 92 Notre Dame L. Rev. 1, 26 (2016). ↑
  31. See infra Section III.A. ↑
  32. See Elizabeth Warren, Companies Shouldn’t Be Accountable Only to Shareholders, Wall St. J., Aug. 15, 2018, at A17; Larry Fink, Larry Fink’s 2018 Letter to CEOs: A Sense of Purpose, BlackRock, https://www.blackrock.com/corporate/investor-relations/2018-larry-fin­k-ceo-letter [https://perma.cc/P9X6-HN85] (last visited Jan. 13, 2020); Martin Lipton et al., It’s Time to Adopt the New Paradigm, Harv. L. Sch. F. Corp. Governance, https://corpgov.­law.harvard.edu/2019/02/11/its-time-to-adopt-the-new-paradigm [https://perma.cc/3XH9-SSRS] (last visited Jan. 13, 2020); Business Roundtable Redefines the Purpose of a Corporation to Promote ‘An Economy That Serves All Americans,’ Business Roundtable (Aug. 19, 2019), [https://perma.cc/9K2F-2HLG]. On shareholder primacy, see infra note 189 and accompanying text. ↑
  33. See infra Section III.D. ↑
  34. There is arguably a gap between rhetoric and reality. See Marcel Kahan & Edward Rock, Symbolic Corporate Governance Politics, 94 B.U. L. Rev. 1997, 2042 (2014). ↑

Congressional Administration of Foreign Affairs

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that, as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.

And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does not mean that the position the President ultimately chooses to take is preordained. Questions of foreign policy and national security engage diverse components of the executive branch bureaucracy, which have overlapping jurisdictions and often conflicting biases and priorities. And yet they must arrive at one executive branch position. Thus the process of decision making, the weight accorded the position of any given decision maker, and the context in which the decision is made together shape the ultimate position the President takes.

This Article explores and critiques the foreign policy role Congress can—and does—play in structuring and rearranging the relative powers of those internal actors and the processes they take to reach their decisions, in order to influence and even direct the President’s ultimate position. Having yielded much of the ground on substance, Congress has an opportunity for a second bite at the apple, and may influence the policy directions of the presidency by manipulating its internal workings. There are risks to deploying “process controls,” as I term these measures, in lieu of direct substantive engagement, but I argue that Congress can and should use these tools more instrumentally to influence the course of foreign policy in areas where it is otherwise unlikely to assert itself as a coequal branch and necessary check on presidential power.

Introduction

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the line between Congress and the President’s formal authority is drawn, it is well established that, as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.

But presidential primacy is not the end of the story. While the President might wield far-reaching control over the nation’s foreign affairs and national security policies, Congress can shape the President’s position, and thus the foreign policy of the United States, without necessarily mandating the substance of that policy itself.

This Article explores and critiques the foreign policy role Congress can—and does—play through structuring and rearranging the relative powers of internal executive branch actors and the processes they take to reach their decisions, in order to influence and even direct the President’s ultimate position. Having yielded much of the ground on substance, Congress has an opportunity for a second bite at the apple, and may influence the policy directions of the presidency simply by manipulating its internal workings.

A recent example illustrates the point. In 2017, the newly elected President threatened a trade war with China, Mexico, Canada and other longtime allies and competitors around the globe, proposing high tariffs on imports of steel and specific products, such as foreign-made vehicles.1 1.The President’s 2017 Trade Policy Agenda,Office of the U.S. Trade Representative (2017), https://ustr.gov/sites/default/files/files/reports/2017/AnnualReport/Chapter%20I%2­0-%20The%20President%27s%20Trade%20Policy%20Agenda.pdf [https://perma.cc/GV4T-6289]; Bob Bryan & Elena Holodny, Trump’s Considering a Tariff That Could Put the Economy on a Path to ‘Global Recession,’ Business Insider (June 30, 2017, 10:24 AM), https://www.businessinsider.com/trump-steel-tariff-china-germany-japan-global-recession-2017-6 [https://perma.cc/S2QY-YNL8]; Peter S. Goodman, Trump’s Trade War May Have Already Begun, N.Y. Times (Jan. 30, 2017), https://www.nytimes.com/2017/01/30­/business/economy/trumps-mexico-china-tariff-trade.html [https://perma.cc/M5WH-PMVR].Show More His own political party controlled the House and Senate, but there was little appetite in Congress for raising tariffs. So he turned inward, looking to his own cabinet to effectuate his plans. Government lawyers dusted off a rarely-used delegation from Congress, Section 232 of the Trade Expansion Act of 1962, which permits the President to adjust restrictions on imports when the Secretary of Commerce finds that they impose a threat to national security.2 2.19 U.S.C. § 1862(b)–(c) (2012). Prior to the Trump Presidency, presidential authority to impose tariffs had only been exercised a total of five times across the authority’s sixty-four-year existence that began with a temporary authorization in 1955. Rachel F. Fefer et al., Cong. Research Serv., R45249, Section 232 Investigations: Overview and Issues for Congress app. b, at 35 (2018).Show More

With his statutory authority contingent upon meeting this procedural requirement, the President demanded that the Commerce Secretary consider the effects on national security of steel and aluminum imports, asserting meanwhile, in an expansive interpretation of this statutory exception, that the nation’s economic welfare is itself a matter of national security.3 3.Memorandum on Aluminum Imports and Threats to National Security, 2017 Daily Comp. Pres. Doc. 284 (Apr. 27, 2017); Memorandum on Steel Imports and Threats to National Security, 2017 Daily Comp. Pres. Doc. 259 (Apr. 20, 2017).Show More The Secretary of Commerce, following the statute’s requirements, consulted with the Secretary of Defense, who told him, in a diplomatically-worded missive, that the adjustments proposed by Commerce were in fact unnecessary for national security, and could have negative consequences for U.S. relationships with important allies.4 4.Letter from James N. Mattis, Sec’y of Def., to Wilbur L. Ross Jr., Sec’y of Commerce (2018), https://www.commerce.gov/sites/default/files/department_of_defense_memo_respo­nse_to_steel_and_aluminum_policy_recommendations.pdf [https://perma.cc/HA7Y-UWL6] [hereinafter Letter from Mattis to Ross] (“As noted in both Section 232 reports, however, the U.S. military requirements for steel and aluminum each only represent about three percent of U.S. production. Therefore, DoD does not believe that the findings in the reports impact the ability of DoD programs to acquire the steel or aluminum necessary to meet national defense requirements.”).Show More Those steps taken, and despite the Defense Secretary’s warning, the President moved ahead on the Commerce Secretary’s report, imposing additional tariffs on both steel and aluminum imports.5 5.Fefer et al., supra note 2, at 7. The President also negotiated exceptions on a country-by-country basis. Id. at 7–9.Show More

Members of the President’s own party in Congress issued unusual rebukes of the President’s action, denouncing the measures as a “tax hike on American manufacturers, workers and consumers,”6 6.Press Release, U.S. Senate Comm. on Fin., Hatch Statement on Steel, Aluminum Tariffs (Mar. 8, 2018), https://www.finance.senate.gov/chairmans-news/hatch-statement-on-steel-al­uminum-tariffs [https://perma.cc/42YF-KMX8].Show More asking the President to dial back the global tariffs,7 7.Vicki Needham, Ways and Means Sets Hearing on Trump’s Tariffs, The Hill(Apr. 5, 2018, 5:17 PM),https://thehill.com/policy/finance/381875-ways-and-means-set-hearing-on-trump­s-tariffs [https://perma.cc/AN9E-98LU].Show More and most recently passing legislation mandating a report from the Secretary of Commerce.8 8.Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, § 112, 133 Stat. 2317, 2395–96 (2019) (requiring publication of the Secretary of Commerce’s findings in automobiles and automotive parts market within thirty days of enactment). The Administration has thus far resisted complying with this provision. SeeSteven A. Engel, Office of Legal Counsel, Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security 1–2 (Jan. 17, 2020), https://www.justice.gov/olc/­opinion/file/1236426/download [https://perma.cc/YYC3-AHW6] (arguing that President may assert executive privilege over Secretary of Commerce’s automobile and automobile parts report).Show More Congress did not, however, exercise its power to withdraw the President’s authority to adjust imports, an authority that Congress itself had given to the President through increasingly expansive delegations since the 1930s.9 9.See infra Subsection II.C.1 (detailing historical development of the national security justification for imposing tariffs).Show More

Yet congressional reticence to reassert dominance over trade policy is not the end of the story. There is another tool of control that members of Congress might deploy and which, despite increasingly relinquishing power to the President, Congress has used several times before in order to influence the direction of U.S. trade policy. And that is to restructure the decision-making process inside the executive branch in order to preference decision makers and processes more likely to favor their preferred outcomes.

Indeed, members of Congress have introduced several bills seeking to do just that. In 2018 and 2019, several bipartisan groups of lawmakers introduced bills in both the House and Senate to retract from the Secretary of Commerce the power to invoke a national security justification for raising tariffs on foreign imports.10 10.Trade Security Act of 2019, S. 365, 116th Cong. (2019); Bicameral Congressional Trade Authority Act of 2019, S. 287, 116th Cong. (2019); H.R. 6923, 115th Cong. § 4 (2018); S. 3329, 115th Cong. § 2 (2018).Show More The bills would grant that power instead to the Secretary of Defense—the very cabinet secretary who had, as the bill proponents surely noticed, criticized the Commerce Secretary’s proposed indiscriminate tariffs.11 11.See Letter from Mattis to Ross, supranote 4. Former Defense Secretary Mattis resigned between the 2018 and 2019 bill proposals, but press releases accompanying the 2019 proposals, such as one stating the purpose was to counter “misuse” of the national security justification and “to ensure that the statute is used for genuine national security purposes,” suggest that bill proponents view the Defense Department’s constraining effect on the use of the national security justification as departmental rather than unique to Mattis. See Press Release, Sen. Rob Portman, Portman, Jones, Ernst, Alexander, Feinstein, Fischer, Sinema & Young Introduce Trade Security Act to Reform National Security Tariff Process (Feb. 6, 2019), https://www.portman.senate.gov/newsroom/press-releases/portman-jones-ernst-alexa­nder-feinstein-fischer-sinema-young-introduce [https://perma.cc/4DQZ-AVE4] [hereinafter Press Release, Sen. Rob Portman].Show More Such micro-management over the executive branch decision maker is not an untested tool for Congress. In fact, the bills would make the Office of the Defense Secretary at least the sixth distinct congressionally designated executive branch office to wield that authority since Congress began delegating away its power over the nation’s trade policy.12 12.See generally Edward E. Groves, A Brief History of the 1988 National Security Amendments, 20 Law & Pol’y Int’l Bus. 589, 590–93 (1989) (detailing the ways in which Congress has empowered other agencies to conduct trade policy). The executive agents who have been tasked with fulfilling the requirements of Section 232 include: Director of Defense Mobilization (1955), Director of the Office of Defense and Civilian Mobilization (1958), Director of the Office of Emergency Planning (1962), Director of the Office of Emergency Preparedness (1968), Secretary of the Treasury (1974), and Secretary of Commerce (1979). Id.Show More

Why might members of Congress who want to challenge the President’s trade policies deploy an indirect tool of micro-management over the executive branch’s decision-making process, rather than simply direct the policy themselves through substantive legislation? And could such an indirect tool have any real effect?

In fact, indirect tools such as the choice of executive branch decision maker or the restructuring of internal decision-making processes can entirely redirect the President’s policy outcomes, and members of Congress often have reason to prefer these mechanisms to more direct legislation. Thus, while Congress may defer or even delegate to the President on matters of substantive foreign policy—and while members of Congress may not rest assured that the President will implement their will even when they do mandate substance—Congress may nevertheless shape the nation’s foreign policy through what I term “congressional administration.”13 13.I use this term as a congressional corollary to then-Professor Elena Kagan’s “Presidential Administration,” which she identified as presidential control of the bureaucracy as a means to advance “the President’s own policy and political agenda,” particularly in the face of political obstacles to doing so through other means. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2248 (2001). Professor Jack Beermann uses this term directly, to describe Congress’s ongoing involvement in the “day to day administration of the law.” Jack M. Beermann, Congressional Administration, 43 San Diego L. Rev. 61, 64 (2006).Show More

Congressional administration, as I define it here, is the management and manipulation of internal executive branch decision-making processes for the purpose of advancing a substantive agenda. Congress has an array of measures that it may deploy to influence the nation’s foreign policy, short of mandating the substance itself. These “process controls” include familiar tools such as agency design and procedural requirements, but they also include the designation and reassignment of decision makers within the executive branch. Each of these may be deployed for different purposes, with different effects and risks, and each may have significant effects on the ultimate policy direction the United States takes.

This Article sits at the intersection of two broad bodies of literature: one on congressional-executive turf wars over foreign affairs and national security, and one on agency design and political control over the bureaucracy. Scholars have long debated the proper constitutional allocation of power between the President and Congress over the direction of the nation’s foreign policy. As a practical matter, however, the conventional wisdom holds that “the President (almost) always wins in foreign affairs.”14 14.Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 Yale L.J.1255, 1291 (1988); see also Aaron Wildavsky, The Two Presidencies, 4 Trans-Action 7 (1966) (arguing that presidents typically receive support or, at least, a lack of pushback from Congress on their foreign policy agenda).Show More The reasons for presidential primacy are legion: institutional competence; asymmetrical expertise and information; and more costs than benefits to Congress in engaging. Moreover, many argue that even when Congress does engage directly and substantively on a matter, the President often manages to assert authority to act, either by interpreting his statutory authorities broadly,15 15.See Libya and War Powers: Hearing Before the S. Comm. on Foreign Relations, 112th Cong. 7–11 (2011) (statement of Harold Koh, Legal Adviser, U.S. Dept. of State); see also Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095 (2009) (arguing that administrative law is sufficiently vague to enable Presidents to act without constraint at the invocation of an emergency, and that this is inevitable).Show More or by claiming a constitutional prerogative to act unilaterally,16 16.See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015).Show More or even by skirting the legal constraints altogether.17 17.For a bit of all three, see Memorandum from Jay S. Bybee, Assistant Attorney Gen., U.S. Dep’t of Justice, to Alberto R. Gonzales, Counsel to the President, Exec. Office of the President (Aug. 1, 2002), https://www.justice.gov/olc/file/886061/download [https://perma.­cc/AM56-F4TD].Show More

But the fact that the President usually “wins” vis-à-vis Congress does not mean that the position the President ultimately chooses to take is preordained. Nor does it mean that the policy the President ultimately adopts at the end of what is often a long and contentious decision-making process is the one he would have chosen if all possible options were simply laid out before him at the outset. In fact, presidential primacy does not even mean that the policy the President ultimately adopts has actually received the personal sign-off of the President.

Indeed there is another dynamic beyond that of the President-Congress relationship that is essential to understanding foreign policy positioning and is as much of a hotbed for diversity of opinion. This is the multi-faceted, many-headed organism that is the executive branch bureaucracy. That there is a diversity of opinion within the executive branch, especially on matters of foreign policy and national security, should be clear these days to anyone who picks up a newspaper.18 18.Or, if this is anachronistic, then to anyone who is on Twitter.Show More That the process for decision making inside the executive branch influences the resulting policies is perhaps less intuitive, particularly to those who envision a unitary executive headed by a willful President with his fingers in every pot. And yet it is so. Furthermore, there exist opportunities for influencing these processes, and thus the resulting policy, from the outside. Of specific relevance here, Congress has robust means at its disposal to shape these processes and thus the resulting decision.

I have written previously about the multiplicity of decision makers, processes, overlapping interests, and conflicting proclivities inside the executive branch, and the potential for external actors to shape the President’s positions by triggering different decision-making pathways.19 19.Rebecca Ingber, Interpretation Catalysts and Executive Branch Legal Decisionmaking, 38 Yale J. Int’l L.359, 369–73 (2013) [hereinafter Ingber, Interpretation Catalysts].Show More I focused in prior work on the role of litigants, nongovernmental organizations, and international treaty bodies in prompting different processes and the potential for achieving different outcomes.20 20.Id.Show More But members of Congress have far greater opportunities than most for triggering and even for restructuring different decision-making pathways, including for designating their preferred internal official as the decider over a given matter.

While executive branch decision making may at times appear opaque from the outside—particularly in the realm of foreign policy and national security—savvy government watchers, scholars, and even members of Congress can often glean a sense of its inner workings: which matters are subject to internal debate, who within the administration may be inclined toward particular policies, and where the pressure points lie for decision making.21 21.In fact, members of Congress often have significant ties to the executive branch both through their own personal relationship to members of the political class within the administration and through staffers’ often deep connections to agencies through prior positions, former colleagues, and the fact that they are repeat players on specific issues. See, e.g., Ashley Deeks, Statutory International Law, 57 Va. J. Int’l L. 263, 296–97 (2018).Show More Actors inclined to lean into these pressure points may therefore find they can influence policy outcomes simply by exerting influence on the shape of executive branch decision making.

Members of Congress have especially potent tools for shaping the process of decision making, through legislation directly creating procedural requirements or designating decision makers, as well as through “soft” mechanisms such as requests for testimony from particular executive branch officials,22 22.See Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 3 (2017) (arguing that Congress has many tools, including both “hard” like appropriations and “soft” like speech, which it underutilizes).Show More all of which can shape and shift presidential priorities, force to a head executive branch decisions, exacerbate internal tensions, or place a thumb on the scale in favor of a particular set of actors engaged in intra-executive branch conflict. Through the use of these process controls, Congress can and does shape the process of executive branch decision making and influence policy without necessarily mandating a particular substantive outcome.

This Article proceeds as follows: Part I first considers scholarly debates over the legal and practical allocation of the foreign affairs power, including the extent to which Congress is able effectively to constrain the President in this sphere. Acknowledging the practical reality of presidential primacy in matters of foreign affairs, it turns to scholarship considering the interaction of Congress with the internal workings of the executive branch bureaucracy. This scholarship largely brackets off the fields of foreign policy and national security, thus bringing insights from administrative law and political science scholarship on political control of the bureaucracy to bear on debates about the allocation of foreign policy power is one contribution of this Article.

Part II introduces and classifies what I term “process controls,” the mechanisms that Congress may deploy to influence the executive branch decision-making process, and through it, the shape of foreign policy. Two types of measures that I include within the term process controls—agency design and the imposition of administrative procedures—have been the subject of significant scholarship in both administrative law and political science.23 23.See infra Part II.Show More I therefore consider these each in turn in order to examine their relevance and influence on questions of foreign policy and national security, which are generally excluded from scholarship concerning agency design and administrative procedure.

I devote the majority of this Part, and of the Article, to identifying and analyzing a specific type of process control that has not been the focus of scholarship: the designation of executive branch decision makers. Among the controls I discuss in this Article, Congress wields significant, targeted control over decision making inside the executive branch simply through its choice of the intra-executive decider. This is not a one-off decision; Congress may—and does—reassign the decision maker as new events arise or policy preferences shift. Members of Congress thus may seek to shift a delegation of authority horizontally, from one executive branch official or office to another who may espouse policy preferences more in sync with their own. Or they may allocate power vertically, such as upward toward a high-level official if they are looking to increase political accountability for a decision, or downward to professionals and technocrats when seeking to buffer an issue from partisan politics. Or they may try to diffuse power, perhaps as a means of constraining government action, by requiring consultation among or even certification by several different officials.

Part III considers the implications of Congress turning to process controls to shape foreign policy. It considers when and why Congress might turn to process controls over more direct efforts to mandate substance, and which particular process controls are likely to be effective at implementing particular purposes. This Part also probes the unique constitutional questions raised by congressional administration of foreign policy, as well as the risks at stake—risks to good government and to accountability for decision making.

In considering the influence of internal decision makers and processes on executive branch policy and Congress’s ability to influence its direction through these processes, this Article also adds texture to debates about a “unitary executive” model of executive branch decision making. I discuss the implications of process controls for formal doctrine and the potential for judicial review in Part III. But the influence of process controls on policy I discuss in this paper more broadly provides a functional critique of unitary executive theory. Wherever the line ultimately falls on the formal powers of the President over those within the executive branch, the multiplicity of decision makers and processes will always provide practical opportunities for influencing and even manipulating executive branch policies, from within the executive branch and without.

Congress has ceded significant ground to the President on matters of foreign policy and national security, and continues to do so, often abdicating its responsibility to craft policy or to provide substantive, rigorous oversight. Moreover, Congress has at times lost ground to the President even when it has attempted to assert its prerogative.24 24.See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015).Show More But this Article nevertheless challenges views of the presidency as completely untethered to law or to congressional constraint. Congress may be overly timid in this space, and it may at times be ineffective. But it can and does exercise its power to shape foreign policy short of mandating substance, and it could deploy these process controls even more instrumentally to impel decision making in its preferred direction. Though the focus here is on foreign policy and national security decision making, this con­sideration of process controls has relevance beyond these spheres, to still-nascent questions of how Congress interacts with the levers and pulleys effectuating decisions inside the executive branch.

  1. * Associate Professor of Law, Boston University School of Law, and Senior Fellow, Reiss Center on Law and Security at NYU School of Law. I am indebted to Julian Arato, Jack Beermann, Pam Bookman, Curt Bradley, Jessica Bulman-Pozen, Josh Chafetz, Kathleen Claussen, Ashley Deeks, Kristen Eichensehr, Ryan Goodman, Rebecca Hamilton, Kathryn Kovacs, Harold Krent, Gary Lawson, David Lewis, Henry Monaghan, David Noll, Anne Joseph O’Connell, Nicholas Parrillo, David Pozen, Michael Ramsey, Robert Sloane, Peter Spiro, Kevin Stack, and Matthew Waxman, as well as participants at the Duke-Yale Foreign Relations Law Roundtable, the Vanderbilt International Law Roundtable, the NYU Hauser Colloquium, the Berkeley Law Public Law & Policy Workshop, the Junior International Law Scholars Association Workshop, the AALS New Voices in Administrative Law workshop, the Fourth Annual Administrative Law New Scholarship Roundtable, and faculty workshops at Brooklyn, BU, Cardozo, Hastings, Fordham, and Rutgers Law, for generous discussions and feedback on drafts at many stages of this project. For excellent research assistance, I thank Chloe Aubuchon, James Black, Caroline Lambert, and Tyler Shearer. ↑

  2. The President’s 2017 Trade Policy Agenda, Office of the U.S. Trade Representative
    (2017)

    , https://ustr.gov/sites/default/files/files/reports/2017/AnnualReport/Chapter%20I%2­0-%20The%20President%27s%20Trade%20Policy%20Agenda.pdf [https://perma.cc/GV4T-6289]; Bob Bryan & Elena Holodny, Trump’s Considering a Tariff That Could Put the Economy on a Path to ‘Global Recession,’ Business Insider (June 30, 2017, 10:24 AM), https://www.businessinsider.com/trump-steel-tariff-china-germany-japan-global-recession-2017-6 [https://perma.cc/S2QY-YNL8]; Peter S. Goodman, Trump’s Trade War May Have Already Begun, N.Y. Times

    (

    Jan. 30, 2017), https://www.nytimes.com/2017/01/30­/business/economy/trumps-mexico-china-tariff-trade.html [https://perma.cc/M5WH-PMVR]. ↑

  3. 19 U.S.C. § 1862(b)–(c) (2012). Prior to the Trump Presidency, presidential authority to impose tariffs had only been exercised a total of five times across the authority’s sixty-four-year existence that began with a temporary authorization in 1955. Rachel F. Fefer et al., Cong. Research Serv., R45249, Section 232 Investigations: Overview and Issues for Congress app. b, at 35 (2018). ↑
  4. Memorandum on Aluminum Imports and Threats to National Security, 2017 Daily Comp. Pres. Doc. 284 (Apr. 27, 2017); Memorandum on Steel Imports and Threats to National Security, 2017 Daily Comp. Pres. Doc. 259 (Apr. 20, 2017). ↑
  5. Letter from James N. Mattis, Sec’y of Def., to Wilbur L. Ross Jr., Sec’y of Commerce (2018), https://www.commerce.gov/sites/default/files/department_of_defense_memo_respo­nse_to_steel_and_aluminum_policy_recommendations.pdf [https://perma.cc/HA7Y-UWL6] [hereinafter Letter from Mattis to Ross] (“As noted in both Section 232 reports, however, the U.S. military requirements for steel and aluminum each only represent about three percent of U.S. production. Therefore, DoD does not believe that the findings in the reports impact the ability of DoD programs to acquire the steel or aluminum necessary to meet national defense requirements.”). ↑
  6. Fefer et al., supra note 2, at 7. The President also negotiated exceptions on a country-by-country basis. Id. at 7–9. ↑
  7. Press Release, U.S. Senate Comm. on Fin., Hatch Statement on Steel, Aluminum Tariffs (Mar. 8, 2018), https://www.finance.senate.gov/chairmans-news/hatch-statement-on-steel-al­uminum-tariffs [https://perma.cc/42YF-KMX8]. ↑
  8. Vicki Needham, Ways and Means Sets Hearing on Trump’s Tariffs, The Hill

    (Apr. 5, 2018, 5:17 PM), https://thehill.com/policy/finance/381875-ways-and-means-set-hearing-on-trump­s-tariffs [https://perma.cc/AN9E-98LU]. ↑

  9. Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, § 112, 133 Stat. 2317, 2395–96 (2019) (requiring publication of the Secretary of Commerce’s findings in automobiles and automotive parts market within thirty days of enactment). The Administration has thus far resisted complying with this provision. See Steven A. Engel, Office of Legal Counsel, Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security 1–2 (Jan. 17, 2020), https://www.justice.gov/olc/­opinion/file/1236426/download [https://perma.cc/YYC3-AHW6] (arguing that President may assert executive privilege over Secretary of Commerce’s automobile and automobile parts report). ↑
  10. See infra Subsection II.C.1 (detailing historical development of the national security justification for imposing tariffs). ↑
  11. Trade Security Act of 2019, S. 365, 116th Cong. (2019); Bicameral Congressional Trade Authority Act of 2019, S. 287, 116th Cong. (2019); H.R. 6923, 115th Cong. § 4 (2018); S. 3329, 115th Cong. § 2 (2018). ↑
  12. See Letter from Mattis to Ross, supra note 4. Former Defense Secretary Mattis resigned between the 2018 and 2019 bill proposals, but press releases accompanying the 2019 proposals, such as one stating the purpose was to counter “misuse” of the national security justification and “to ensure that the statute is used for genuine national security purposes,” suggest that bill proponents view the Defense Department’s constraining effect on the use of the national security justification as departmental rather than unique to Mattis. See Press Release, Sen. Rob Portman, Portman, Jones, Ernst, Alexander, Feinstein, Fischer, Sinema & Young Introduce Trade Security Act to Reform National Security Tariff Process (Feb. 6, 2019), https://www.portman.senate.gov/newsroom/press-releases/portman-jones-ernst-alexa­nder-feinstein-fischer-sinema-young-introduce [https://perma.cc/4DQZ-AVE4] [hereinafter Press Release, Sen. Rob Portman]. ↑
  13. See generally Edward E. Groves, A Brief History of the 1988 National Security Amendments, 20 Law & Pol’y Int’l Bus.
    589, 590–93 (1989) (

    detailing the ways in which Congress has empowered other agencies to conduct trade policy)

    . T

    he executive agents who have been tasked with fulfilling the requirements of Section 232 include: Director of Defense Mobilization (1955), Director of the Office of Defense and Civilian Mobilization (1958), Director of the Office of Emergency Planning (1962), Director of the Office of Emergency Preparedness (1968), Secretary of the Treasury (1974), and Secretary of Commerce (1979). Id. ↑

  14. I use this term as a congressional corollary to then-Professor Elena Kagan’s “Presidential Administration,” which she identified as presidential control of the bureaucracy as a means to advance “the President’s own policy and political agenda,” particularly in the face of political obstacles to doing so through other means. Elena Kagan, Presidential Administration,
    114

    Harv. L. Rev. 2

    245, 2248 (2001)

    . Professor Jack Beermann uses this term directly, to describe Congress’s ongoing involvement in the “day to day administration of the law.” Jack M. Beermann, Congressional Administration, 43 San Diego L. Rev. 61, 64 (2006). ↑

  15. Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 Yale L.J.

    1255, 1291 (1988); see also Aaron Wildavsky, The Two Presidencies,

    4

    Trans-Action 7

    (1966) (

    arguing that presidents typically receive support or, at least, a lack of pushback from Congress on their foreign policy agenda)

    .

    ↑

  16. See Libya and War Powers: Hearing Before the S. Comm. on Foreign Relations, 112th Cong. 7–11 (2011) (statement of Harold Koh, Legal Adviser, U.S. Dept. of State); see also Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095 (2009) (arguing that administrative law is sufficiently vague to enable Presidents to act without constraint at the invocation of an emergency, and that this is inevitable). ↑
  17. See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015). ↑
  18. For a bit of all three, see Memorandum from Jay S. Bybee, Assistant Attorney Gen., U.S. Dep’t of Justice, to Alberto R. Gonzales, Counsel to the President, Exec. Office of the President (Aug. 1, 2002), https://www.justice.gov/olc/file/886061/download [https://perma.­cc/AM56-F4TD]. ↑
  19. Or, if this is anachronistic, then to anyone who is on Twitter. ↑
  20. Rebecca Ingber, Interpretation Catalysts and Executive Branch Legal Decisionmaking, 38 Yale J. Int’l L.

    359, 369–73 (2013) [hereinafter Ingber, Interpretation Catalysts]. ↑

  21. Id. ↑
  22. In fact, members of Congress often have significant ties to the executive branch both through their own personal relationship to members of the political class within the administration and through staffers’ often deep connections to agencies through prior positions, former colleagues, and the fact that they are repeat players on specific issues. See, e.g., Ashley Deeks, Statutory International Law, 57 Va. J. Int’l L. 263, 296–97 (2018). ↑
  23. See Josh Chafetz
    ,

    Congress’s Constitution: Legislative Authority and the Separation of Powers 3 (2017) (arguing that Congress has many tools, including both “hard” like appropriations and “soft” like speech, which it underutilizes). ↑

  24. See infra Part II. ↑
  25. See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015). ↑
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