Presidential Regulatory Authority: Two Views

Editor’s Note: Despite the definitive U.S. Court of Appeals ruling in Sierra Club v. Costle, the legitimacy of Presidential authority over the review and approval of federal regulations has been a contentious issue since the process was established by then OMB Director George Schultz during the Nixon Administration. The contemporary scholarly debate on centralized regulatory review has been enhanced by the two recent publications, (1) an Administrative Law Review article by Professor Ming H. Chen, “Administrator-In-Chief: President and Executive Action in Immigration Law” available here and (2) CRE’s response, below.


Re: Professor Chen article in the Administrative Law Review

An Empirical Analysis of the Establishment of Independent Agencies

From: The Regulatory Review



In our recent article, The Genesis of Independent Agencies, we ask a core question of administrative law: When are agencies established with features that insulate them from direct presidential control? The leading articles in the legal literature assert that Congress is more likely to establish independent agencies when government is divided—that is, when the U.S. House of Representatives, the U.S. Senate, or both are controlled by a different party than that of the President. Under these circumstances, the academic literature maintains, Congress is less willing to give the President fuller control of a new agency. Only a single political science study—one that suffers from design flaws and that has been misinterpreted in the legal literature—provides empirical evidence for the claim that divided government has an impact on the establishment of independent agencies.

The Case for the Administrative State

Editor’s Note: Please see, Paul Verkuil and the Case for Professional Government, here and here.

From: Real Clear Policy


Bucking this line of argument, Paul Verkuil of the Center for American Progress makes a positive case for the administrative state. A former law professor and chairman of the Administrative Conference of the United States from 2010–2015, Verkuil is hardly insensitive to the constitutional issues surrounding administrative law or the many problems and inefficiencies that plague our federal bureaucracy. He insists, however, that the administrative state is the solution, not the problem.

Working Smart and Hard? Agency Effort, Judicial Review, and Policy Precision

From: Journal of Theoretical Politics 29(1): 69-96.

Ian R. Turner, Texas A&M University – Department of Political Science