Shortly after the November elections returned control of the House of Representatives to Democrat control, twenty-one scholars of administrative law met at the Chicago-Kent College of Law to hear and discuss seven papers on the general subject of President Trump and administrative law. A number have already been posted to SSRN. This paper is a commentary on Susan Rose-Ackerman’s essay “Executive Rulemaking and Democratic Legitimacy: ‘Reform’ in the US and the UK’s Route to Brexit” which insightfully illuminates important differences between parliamentary and presidential systems of government in relation to executive bodies’ production of the large volume of secondary legislation common, indeed inevitable, for both. Agreeing heartily with her conclusion that the weakness of parliamentary engagement with secondary legislation, and limited judicial review of its production, counsels greater provision for public participation and transparency of action at the agency level, there was little for me to add to her analysis of matters in the United Kingdom. Indeed, her account of the tensions and hopes for future developments on both sides of the Atlantic were entirely persuasive. My comments, rather, address eroding checks on American executive (that is, presidential) authority to supplement her account, and begin with the observation that in contrast to the UK (and other parliamentary systems) collective responsibility for executive action, either within the ‘cabinet’ or to the Congress does not exist. It discusses the claims of presidential authority over the functioning of American government that have been steadily increasing over the past several decades – in particular, how rulemaking decision has effectively been moved from the agencies to the White House; the impact of norm-erosion in President Trump’s administration, in particular; the challenges faced to the hopes expressed by some that the civil service can serve as an effective internal check on presidential excess; and the unfortunate contrast between the institutional checks on judicial appointments in the UK, and the disappearance here of what once were possible checks on the politicization of American judicial appointments.
Peter L. Strauss,
Eroding "Checks" on Presidential Authority – Norms, the Civil Service, and the Courts,
Chicago-Kent Law Review, Vol. 94, p. 581, 2019
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2310