On Tuesday, Cato released a policy paper by Will Yeatman that I wanted to flag for everyone. The paper has three main points: (1) APA-style reasonableness review should apply to the statutory president, (2) that reasonableness review should incorporate a heavy skepticism of new assertions of regulatory authority (kind of MQD-esque), and (3) the courts should hold the line on a strong presumption of reviewability.
This really isn’t a critical blog post. The paper is well done and draws on a literature that I’ve loved devouring over the last few years. Y’all ought to read it. I’m flagging it though because I think we can save this as a sort of capstone for a bipartisan mode of thinking in administrative law that was especially popular before the start of the Biden era. Yeatman is drawing on a stable of authors who have tried to bring accountability to the presidency. For example, he cites to Professor Kathryn Kovacs piece, Constraining the Statutory President. Kovacs is one of my favorite scholars. With this one, she argued that Franklin v. Massachussets, the SCOTUS case holding that APA review does not apply to the president acting directly under a statutory grant to him or her, was mistaken. She argued that courts ought to hold the presidency to APA review as though the president were an agency. The upshot of this approach, according to Kovacs, is that courts would have a freer reign to check the presidency in cases like Trump v. Hawaii because they would be empowered to do APA-style arbitrary and capricious review.
Works like this pervade the Yeatman paper. Yeatman’s paper is about tackling the problem of the statutory presidency. To him, the plethora of statutes granting broad authorities to the President create problems of discretion that require probing judicial review. Hence the three-point plan.
The reason I call this paper a “capstone” is because I think this mode of thinking is already becoming deeply unfashionable or at least is losing its bipartisan edge. (again, I don’t mean this as criticism, just a description of current trends) I always read the Kovacs piece in context with the author’s fear of creeping authoritarianism and emphasis on processual and judicial checks. This kind of work became more prominent after 2016. But today, judging by trends in the literature and other sources, that same instinct might be dismissed as either tyrannophobia or the enabling of judicial self‑aggrandizement. Reading some of the literature produced during the last decade, I am increasingly alienated by the faith in process or the courts that now sends a shiver down my spine. Don’t get me wrong, if the best reading of the APA would subject the statutory president to APA review, have at it. But the idea that the courts will even-handedly protect us from the rise of the statutory president is just too hard to credit.
I want to flag this paper because I think we all ought to return to it over the next few years to see if our current fascination with thayerism has any staying power. My own suspicion is that some of this literature will be viewed in a different light in a decade as the public and the academy come to grips with the sense that strong and ever-present judicial review is just as likely to create the conditions necessary for authoritarianism and lawlessness as it is to prevent them.
Side tangent: note in this paper how Yeatman tries to suggest that the substance of the APA-style review he’s asking for should be sort of like the MQD. Just a guess, but watch for this move in the future. As the MQD comes more into the line of fire, I wouldn’t be surprised if some folks try to suggest that it has a home in the APA. (or if the MQD takes enough of a beating, watch out for normal APA review to become more MQD-like) This, of course, would be a post-hoc rationalization, but it’s worth watching out for.