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Frictionless Government and Foreign Relations

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

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

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

Introduction

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

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

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

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

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

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

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

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

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

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

Presidential Adjudication

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

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

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

Introduction

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

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

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

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

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

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

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

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

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

The Case for City Reparations

Once a political boogeyman, calls for Black reparations as a means to advance racial justice in the United States have become increasingly earnest, particularly in the wake of George Floyd’s murder. But among those who view reparations as morally imperative, there is much disagreement about where they should occur. Proponents of reparations have called on federal, state, and local government to implement reparatory justice. But so far, only one institution has meaningfully responded: cities. For the first time in American history, cities across the country are beginning to implement reparations. In this Note, I argue that cities both can and should adopt reparatory policies, as city government—not state or federal—is best positioned to craft effective and constitutional reparations. After surveying current municipal reparations policies, I contend that cities are the correct level at which to pioneer reparations for three reasons: normative, pragmatic, and constitutional. Normative, because city government is proximate, responsive, and capable of unique policy innovation. Pragmatic, because cities enjoy supportive political coalitions that become improbable at the state and federal levels. And constitutional, because race-based programs like reparations must identify and connect a historic harm “with particularity” to the remedy to pass legal muster, which cities are uniquely well-suited to do. After making the case for cities as the proper venue, I suggest ways in which cities can both find reparatory power and avoid unwanted interference by their home states.

Introduction

American reparations are nearly as old as the country itself. From pre-Civil War abolitionist attempts1 1.Gary B. Nash, Warner Mifflin: Unflinching Quaker Abolitionist 101–02 (Daniel K. Richter, Kathleen M. Brown, Max Cavitch & David Waldstreicher eds., 2017).Show More to General Sherman’s Field Order No. 15,2 2.William A. Darity Jr. & A. Kirsten Mullen, From Here to Equality: Reparations for Black Americans in the Twenty-First Century 9 (2d ed. 2020).Show More many Americans have long sought to advance racial justice through reparatory programs. And while these early attempts foundered on the shoals of virulent bigotry and political impossibility, today’s renewed calls for reparations are no longer falling on deaf ears.3 3.Many credit Ta-Nehisi Coates’s groundbreaking 2014 article The Case for Reparations with popularizing the idea of modern American reparations. See Jonathan Capehart, How Ta-Nehisi Coates Turned Reparations from a Punchline into a Policy Objective, Wash. Post (Mar. 20, 2019, 3:25 PM), https://www.washingtonpost.com/opinions/2019/03/20/how-ta-nehisi-co‌ates-turned-reparations-punchline-into-policy-objective/ [https://perma.cc/D2AL-BURY]; Ta-Nehisi Coates, The Case for Reparations, The Atlantic (June 2014), https://www.theatlanti‌c.com/magazine/archive/2014/06/the-case-for-reparations/361631/ [https://perma.cc/5XHN-8WW8].Show More

In the wake of George Floyd’s murder, public support for reparations grew tremendously, particularly among white Americans.4 4.See Ashley V. Reichelmann & Matthew O. Hunt, How We Repair It: White Americans’ Attitudes Toward Reparations, Brookings Inst. (Dec. 8, 2021), https://www.brookings.edu/arti‌cles/how-we-repair-it-white-americans-attitudes-toward-reparations/ [https://perma.cc/5KB9‌-XSXX] (noting that white American support for cash reparations grew from 6% in 2014 to 28% in 2021, an increase of over 300%).Show More As then-California Assemblywoman Shirley Weber put it at the time, “Folks [are] now begin[ning] to realize just how extensively, how deeply, issues of race are embedded in our society and how that can produce what we saw happen to George Floyd in Minneapolis.”5 5.Lauren Gambino, Calls for Reparations Are Growing Louder. How Is the US Responding?, The Guardian (June 20, 2020, 5:00 AM), https://www.theguardian.com/world/‌2020/jun/20/joe-biden-reparations-slavery-george-floyd-protests [https://perma.cc/FE3T-GY‌RA].Show More When Americans began to call for reparations, policymakers in city, state, and federal government all made commitments to consider reparatory justice.6 6.See, e.g., Eugene Daniels, Biden Privately Tells Lawmakers Not to Expect Much on Reparations Legislation, Politico (June 2, 2021, 1:46 PM), https://www.politico.com/news/20‌21/06/02/biden-reparations-tulsa-491607 [https://perma.cc/4B27-WBXU] (“As a candidate, Biden said he supported a commission on reparations.”); Madeline Holcombe, California Passes a First-of-Its-Kind Law to Consider Reparations for Slavery, CNN (Oct. 1, 2020, 8:27 AM), https://www.cnn.com/2020/10/01/us/california-bill-slavery-reparations-trnd/index‌.html [https://perma.cc/5BP9-FW6D] (describing California Governor Gavin Newsom’s support for a statewide reparations committee); Adam Beam, 11US Mayors Pledge to Pay Reparations for Slavery to Small Groups of Black Residents, USA Today (June 20, 2021, 1:35 PM), https://www.usatoday.com/story/news/nation/2021/06/19/reparations-slavery-pled‌ged-11-us-mayors-pilot-program/7753319002/ [https://perma.cc/G92D-68RM].Show More But while leaders in state and national governments later hedged on those commitments,7 7.See, e.g., Daniels, supra note 6; Jeremy B. White, Cash for Slavery Reparations in California Draws Cool Response from Newsom, Politico (May 10, 2023, 1:23 PM), https://‌www.politico.com/news/2023/05/10/slavery-reparations-california-newsom-00096211 [https://perma.cc/MM9Y-ME85].Show More city officials capitalized on the movement’s momentum and became the first governments in the country to seriously attempt reparations. Today, a handful of American cities are already administering reparatory programs;8 8.See, e.g., Evanston Local Reparations, City of Evanston, https://www.cityofevanston.org‌/government/city-council/reparations [https://perma.cc/U8RA-8V44] (last visited Aug. 30, 2024).Show More many others have established task forces to lay the groundwork for their own programs.9 9.See, e.g., Community Reparations Commission, City of Asheville, https://www.asheville‌nc.gov/department/city-clerk/boards-and-commissions/reparations-commission/ [https://per‌ma.cc/BD4Z-L5NM] (last updated Aug. 15, 2024).Show More

In this Note, I argue that cities both can and should adopt reparatory policies. City government—not state or federal—is the best venue for achieving both effective and constitutional reparations. In Part I, I review the various definitions of reparations, survey the landscape of current city reparations programs, and consider evidence of those programs’ success. In Part II, I argue that cities are the best venues for reparations for three principal reasons. First, these reasons are normative, because city government is proximate, responsive, and capable of unique policy innovation. Next, they are pragmatic, because cities enjoy supportive political coalitions that become improbable at the state and federal levels. And finally, these reasons are constitutional, because race-based programs like reparations must connect to a historic harm “with particularity” to pass legal muster, which cities are uniquely well-suited to do. In Part III, I suggest several practical considerations for cities seeking to craft their own reparations policies—principal among them, financing their program and avoiding interference by the state in which they sit.

It is prudent to acknowledge that this Note is grounded in one fundamental principle: reparations are morally appropriate. I do not waive this debate lightly.10 10.Much has been said already about the need for reparations, but the debate continues. For arguments in favor of reparations, see Coates, supra note 3. See generally Susan S. Kuo & Benjamin Means, A Corporate Law Rationale for Reparations, 62 B.C. L. Rev. 799 (2021) (arguing that the corporate law model can bolster the argument for reparations and responding to the objection that individuals are not personally responsible for slavery and Jim Crow laws); Joyce Hope Scott, Reparations, Restitution, and Transitional Justice: American Chattel Slavery & Its Aftermath, A Moral Debate Whose Time Has Come, 39 Wis. Int’lL.J. 269 (2022) (arguing for slavery reparations to acknowledge and redress the civil and human rights violations of slavery and beyond). For arguments against the moral and legal propriety of reparations, see Richard A. Epstein, The Case Against Black Reparations, 84 B.U. L. Rev. 1177 (2004) (contending that reparations will not work as a legal matter); Gregory Kane, Comment, Why the Reparations Movement Should Fail, 3 U. Md. L.J. Race, Religion, Gender & Class 189 (2003) (arguing that reparations are not the proper vehicle for repairing historic harms to Black Americans).Show More My argument, however, is responsive to the question of where reparations should occur, not why they should—though I hope that place-based arguments will speak indirectly to the normative value of reparations themselves. In short, my argument is rooted in a belief that the moral propriety of reparations cannot, and indeed must not, be divorced from how they are achieved and where they occur—but because there has been much written on the former, I turn my attention instead to the latter.

  1.  Gary B. Nash, Warner Mifflin: Unflinching Quaker Abolitionist 101–02 (Daniel K. Richter, Kathleen M. Brown, Max Cavitch & David Waldstreicher eds., 2017). ↑
  2.  William A. Darity Jr. & A. Kirsten Mullen, From Here to Equality: Reparations for Black Americans in the Twenty-First Century 9 (2d ed. 2020). ↑
  3.  Many credit Ta-Nehisi Coates’s groundbreaking 2014 article The Case for Reparations with popularizing the idea of modern American reparations. See Jonathan Capehart, How Ta-Nehisi Coates Turned Reparations from a Punchline into a Policy Objective, Wash. Post (Mar. 20, 2019, 3:25 PM), https://www.washingtonpost.com/opinions/2019/03/20/how-ta-nehisi-co‌ates-turned-reparations-punchline-into-policy-objective/ [https://perma.cc/D2AL-BURY]; Ta-Nehisi Coates, The Case for Reparations, The Atlantic (June 2014), https://www.theatlanti‌c.com/magazine/archive/2014/06/the-case-for-reparations/361631/ [https://perma.cc/5XHN-8WW8]. ↑
  4.  See Ashley V. Reichelmann & Matthew O. Hunt, How We Repair It: White Americans’ Attitudes Toward Reparations, Brookings Inst. (Dec. 8, 2021), https://www.brookings.edu/arti‌cles/how-we-repair-it-white-americans-attitudes-toward-reparations/ [https://perma.cc/5KB9‌-XSXX] (noting that white American support for cash reparations grew from 6% in 2014 to 28% in 2021, an increase of over 300%). ↑
  5.  Lauren Gambino, Calls for Reparations Are Growing Louder. How Is the US Responding?, The Guardian (June 20, 2020, 5:00 AM), https://www.theguardian.com/world/‌2020/jun/20/joe-biden-reparations-slavery-george-floyd-protests [https://perma.cc/FE3T-GY‌RA]. ↑
  6.  See, e.g., Eugene Daniels, Biden Privately Tells Lawmakers Not to Expect Much on Reparations Legislation, Politico (June 2, 2021, 1:46 PM), https://www.politico.com/news/20‌21/06/02/biden-reparations-tulsa-491607 [https://perma.cc/4B27-WBXU] (“As a candidate, Biden said he supported a commission on reparations.”); Madeline Holcombe, California Passes a First-of-Its-Kind Law to Consider Reparations for Slavery, CNN (Oct. 1, 2020, 8:27 AM), https://www.cnn.com/2020/10/01/us/california-bill-slavery-reparations-trnd/index‌.html [https://perma.cc/5BP9-FW6D] (describing California Governor Gavin Newsom’s support for a statewide reparations committee); Adam Beam, 11 US Mayors Pledge to Pay Reparations for Slavery to Small Groups of Black Residents, USA Today (June 20, 2021, 1:35 PM), https://www.usatoday.com/story/news/nation/2021/06/19/reparations-slavery-pled‌ged-11-us-mayors-pilot-program/7753319002/ [https://perma.cc/G92D-68RM]. ↑
  7.  See, e.g., Daniels, supra note 6; Jeremy B. White, Cash for Slavery Reparations in California Draws Cool Response from Newsom, Politico (May 10, 2023, 1:23 PM), https://‌www.politico.com/news/2023/05/10/slavery-reparations-california-newsom-00096211 [https://perma.cc/MM9Y-ME85]. ↑
  8.  See, e.g., Evanston Local Reparations, City of Evanston, https://www.cityofevanston.org‌/government/city-council/reparations [https://perma.cc/U8RA-8V44] (last visited Aug. 30, 2024). ↑
  9.  See, e.g., Community Reparations Commission, City of Asheville, https://www.asheville‌nc.gov/department/city-clerk/boards-and-commissions/reparations-commission/ [https://per‌ma.cc/BD4Z-L5NM] (last updated Aug. 15, 2024). ↑

  10.  Much has been said already about the need for reparations, but the debate continues. For arguments in favor of reparations, see Coates, supra note 3. See generally Susan S. Kuo & Benjamin Means, A Corporate Law Rationale for Reparations, 62 B.C. L. Rev. 799 (2021) (arguing that the corporate law model can bolster the argument for reparations and responding to the objection that individuals are not personally responsible for slavery and Jim Crow laws); Joyce Hope Scott, Reparations, Restitution, and Transitional Justice: American Chattel Slavery & Its Aftermath, A Moral Debate Whose Time Has Come, 39 Wis. Int’l

    L.J. 269 (2022) (arguing for slavery reparations to acknowledge and redress the civil and human rights violations of slavery and beyond). For arguments against the moral and legal propriety of reparations, see Richard A. Epstein, The Case Against Black Reparations, 84 B.U. L. Rev. 1177 (2004) (contending that reparations will not work as a legal matter); Gregory Kane, Comment, Why the Reparations Movement Should Fail, 3 U. Md. L.J. Race, Religion, Gender & Class 189 (2003) (arguing that reparations are not the proper vehicle for repairing historic harms to Black Americans). ↑

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