Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience

Abstract

This Article uses recent history to reconsider two longstanding debates in public law and administration. Specifically, this Article examines presidential direction of administrative action in the Obama and early Trump Administrations against the backdrop of ongoing debates concerning: (i) the desirability of and appropriate techniques for presidential control of administration and (ii) the relevance of separated powers when American government is under unified political control. To give this analysis a concrete context, the Article provides in-depth case studies of presidential administration in immigration policy, climate change policy, and executive structuring of the administrative state, under both the Obama and early Trump Administrations. Based on these three case studies, the Article argues that proponents of “presidentialism,” who base their support on the supposed effectiveness and democratic legitimacy of muscular presidential administration, have operated with an anemic and poorly specified set of normative criteria. These defects have led supporters to overstate the benefits and understate the risks of presidentialism. The article further concludes that claims of the functional demise of separated powers, like Mark Twain’s death, have been exaggerated. While one cannot understand the functioning of separated powers without an understanding of the dynamics of party competition, separation of powers has retained functional importance in periods of both unified and divided government notwithstanding the emergence of the current era of hyperpartisanship.