The president's enforcement power

New York University Law Review

Volumn 88, Issue 4, 2013, Pages 1031-1125

  Andrias, Kate ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 84885212566     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (529)

1. Richard H. Pildes, Law and the President, 125 Harv. L. Rev. 1381, 1383-1384 (2012) (reviewing Eric A. Posner & Adrian Vermeule, The Executive Unbound (2010)).
2. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2246 (2001);
3. Richard P. Nathan, The Administrative Presidency 7 (1983).
4. Despite this con sensus, the rise of presidential power is the subject of considerable dispute, at once cele brated and lamented. Compare, e.g., Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive 417 (2008) (concluding that the "sweep of history" supports the uni tary executive theory, and urging presidents to resist certain congressional efforts to curtail executive power), and Posner & Vermeule, supra note 1 (arguing that the President's power to govern has grown enormously and is largely unconstrained by law, but that politics supplies necessary checks), with Bruce Ackerman, The Decline and Fall of the American Republic (2010) (arguing that expanded presidential authority poses a grave threat to the future of the United States government), and Peter M. Shane.
5. Madison's Nightmare: How Executive Power Threatens American Democracy (2009) (arguing that presidents' increasingly assertive claims to unilateral authority have subverted constitutional checks and balances).
6. Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. Chi. L. Rev. 821 (2003);
7. Christopher C. DeMuth and Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 Harv. L. Rev. 1075, 1082 (1986);
8. Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1 (1995);
9. Rena Steinzor, The Case for Abolishing Centralized White House Regulatory Review, 1 Mich. J. Envtl. & Admin. L. 210 (2012).
10. 4 For a brief discussion of the role the President and his Executive Office play in enforcing validly enacted (and concededly constitutional) law.
11. Jack Goldsmith & John F. Manning, The President's Completion Power, 115 Yale L.J. 2280, 2293-2295 (2005) (Identifying executive enforcement as an example of "the completion power" of the President).
12. A few scholars have examined the problem of executive non enforcement, including whether agency decisions not to enforce should be subject to arbitrariness review and whether non enforcement violates either the Take Care Clause or more general conceptions of separation of powers.
13. Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. Rev. 1657, 1661 (2004) (urging courts to guard against agency arbitrariness by "eschew[ing] any special prohibitions against judicial review of agency inaction");
14. Mary M. Cheh, When Congress Commands a Thing to Be Done: An Essay on Marbury v. Madison, Executive Inaction, and the Duty of the Courts to Enforce the Law, 72 Geo. Wash. L. Rev. 253, 255, 279-285, 287, 288 (2003) (emphasizing that the executive has the obligation to follow statutory commands, and concluding that "courts have been noticeably deficient in providing relief against agency failures to enforce the law");
15. Peter L. Strauss, The President and Choices Not to Enforce, 63 Law & Contemp. Probs. 107, 107 (2000) (exploring the problem of executive nonenforcement broadly to shed light on "situations in which the President believes a particular statute is inconsistent with one or another provision of the Constitution and, therefore, should not be enforced").
16. There is also a rich literature on many other aspects of enforcement, including agency-specific enforcement practices, the role of state and private enforcers, and the utility of cooperative versus legalistic styles of enforcement, but none of this literature examines the role of the President.
17. U.S. Const. art. II, § 3, cl. 5.
18. Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131, 1145-1151 (2012) (arguing that coordination is the central challenge of the modern administrative state).
19. See infra notes 161-65, 200-03 and accompanying text (discussing this use of enforcement discretion).
20. Bruce A. Green & Fred C. Zacharias, Prosecutorial Neutrality, 2004 Wis. L. Rev. 837, 869 (describing one notion of prosecutorial neutrality as "whatever else prosecu tors do, they should act nonpolitically");
21. See also infra notes 75-77, 188-91 (discussing problems of politicization).
22. See infra notes 187-90 (discussing the importance of ensuring that partisan politics do not undermine the rule of law).
23. U.S. Const. art. II, § 1, cl. 1.
24. Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 3 (1993).
25. Whether the President may direct or merely oversee the decisions of administrative agencies is long debated in the literature. Though this Article considers the debate in Part IV.A, I do not take a position on it.
26. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 702 (1951) (Vinson, C.J., dissenting) ("Unlike an administrative commission confined to the enforcement of the statute under which it was created,... the President is a constitutional officer charged with taking care that a 'mass of legislation' be executed.").
27. Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 Colum. L. Rev. 1260, 1312-1314, 1329 (2006) (arguing that the deregu- latory focus of OIRA should be rethought);
28. Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 Mich. L. Rev. 47, 91-100 (2006) (proposing changes in the responsibilities of OIRA).
29. New governance or "experimentalism" scholarship, which advocates administrative methods in which the central government grants broad discretion to local administrative units but measures and assesses their performance in ways designed to induce continuous learning and revision of standards, could be instructive here.
30. Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 Geo. L.J. 53, 55 (2011) (providing a theory of experimentalism and contrasting it to other forms of governance);
31. Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 Minn. L. Rev. 342, 344 (2004) (explaining that the new governance model challenges "the traditional focus on formal regulation as the dominant locus of change").
32. Scholars disagree about the legality of restrictions on the President's authority to remove executive officers and about the degree to which presidents can control tasks assigned by statute to agency heads, including through centralized review of rulemaking.
33. Peter L. Strauss, Overseer, or "the Decider"? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 704-705 (2007) (arguing that the President lacks directive authority),
34. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First Half-Century, 47 Case W. Res. L. Rev. 1451 (1997) (arguing for a strong unitary executive).
35. Given our presidents to date, I use the pronoun "he."
36. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984) (holding that the agency's "interpretation represent[ed] a reasonable accommodation of manifestly competing interests and [was] entitled to deference"). In Peter Strauss's formulation, the President has significant space within which to operate with relative freedom.
37. Peter L. Strauss, Deference Is Too Confusing, 112 Colum. L. Rev. 1143, 1145 (2012).
38. For scholarship analyzing the duties to defend and enforce
39. Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, 63 Law & Contemp. Probs. 7, 27 (2000);
40. Daniel J. Meltzer, Executive Defense of Congressional Acts, 61 Duke L.J. 1183, 1193-1196 & nn.42-59 (2012);
41. Saikrishna Bangalore Prakash & Neal Devins, The Indefensible Duty to Defend, 112 Colum. L. Rev. 507 (2012);
42. Seth P. Waxman, Defending Congress, 79 N.C. L. Rev. 1073 (2001).
43. Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 Const. Comment. 307 (2006).
44. As the Supreme Court's recent decision in Salazar v. Ramah Navajo Chapter high lighted, cabinet secretaries often oversee the implementation of multiple overlapping and conflicting statutory commands. 132 S. Ct. 2181, 2195 (2012). Cabinet secretaries are also sometimes charged with coordinating across agencies. An example of a new secretary-led coordination effort focused on compliance and enforcement, as well as rulemaking, is the Financial Stability Oversight Council, chaired by the Treasury Secretary and established by the Dodd-Frank Act. 12 U.S.C. § 5321(1)(A) (2012).
45. Bressman & Vandenbergh, supra note 13, at 49 (arguing that the presidency is a "they," not an "it").
46. Terry M. Moe, Presidents, Institutions, and Theory, in Researching the Presidency 337, 368 (George C. Edwards III et al. eds., 1993).
47. Evan Caminker, The Unitary Executive and State Administration of Federal Law, 45 U. Kan. L. Rev. 1075 (1997) (arguing that state administration of federal programs raises separation-of-powers problems, but that the unitary executive theory should apply, at most, only to state admin istration of federal law, not to state administration of state laws designed to serve federal regulatory objectives);
48. Harold J. Krent, Federal Power, Non-Federal Actors: The Ramifications of Free Enterprise Fund, 79 Fordham L. Rev. 2425, 2427 (2011) (arguing that Free Enterprise Fund v. Public Co. Accounting Oversight Board, 130 S. Ct. 3138 (2010), provides reason to question whether congressional delegations outside the federal government present separation-of-powers problems).
49. Under Heckler v. Chaney, 470 U.S. 821, 831 (1985), discretionary nonenforcement decisions are rarely subject to judicial review. See infra notes 37-41, 392-95, 419-23 and accompanying text.
50. As a matter of customary practice, the President typically requests or strongly suggests that independent agencies comply with executive orders regarding centralized administrative review, while directing executive agencies to do so. Cf. Ben Protess, Lawmakers Push to Increase White House Oversight of Financial Regulators, N.Y. Times, Sept. 10, 2012, at B3 (discussing proposed legislation that would extend centralized regulatory review to independent regulatory agencies).
51. U.S. (1 Cranch) 137 (1803). In Marbury, Congress did not specifically command delivery, instead requiring the Secretary of State to perform ministerial tasks related to the commission.
52. See also Cooper v. Aaron, 358 U.S. 1, 12 (1958) ("[T]he President of the United States dispatched federal troops to Central High School and admission of the Negro students to the school was thereby effected.").
53. For a helpful discussion of the policymaking tools available to agencies, their fea tures, and how administrative law responds to them, Note
54. M. Elizabeth Magill, Agency Choice of Policymaking Forum, 71 U. Chi. L. Rev. 1383 (2004).
55. Of course, administration is broader than just rulemaking and enforcement. It also includes a host of other activities, such as awarding grants and contracts, responding to Freedom of Information Act requests, and deciding whether to grant waivers. Like enforcement, these other forms of administration are comparatively understudied and undertheorized in the legal literature.
56. See Admin. Conference of the United States, Recommendation No. 2012-7, Agency Use of Third-Party Programs to Assess Regulatory Compliance, (adopted Dec. 6, 2012) available at http://www.acus.gov/sites/default/files/documents/Recommendation%202012-7%20%28Third-Party%20Programs%20to%20Assess%20Regulatory%20Compliance%29.pdf.
57. Some agencies, such as the Department of Labor (DOL), can litigate on their own behalf, while most other executive agencies are represented by the Department of Justice (DOJ).
58. Michael Herz & Neal Devins, The Consequences of DOJ Control of Litigation on Agencies' Programs, 52 Admin. L. Rev. 1345, 1345-1349 (2000).
59. Magill, supra note 27, at 1391-92, 1394.
60. See FCC v. Fox Television Stations, 132 S. Ct. 2307, 2320 (2012) (setting aside orders resulting from enforcement actions because the FCC failed to give television networks fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent); Note
61. Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2167-69 (2012) (declining to provide Auer deference to the Department of Labor's (DOL) interpretation of its own regulation in the context of a particular enforcement action, where the DOL sought to impose liability on "conduct that occurred well before that interpretation was announced" and where the change in interpretation was "preceded by a very lengthy period of conspicuous inaction").
62. Cf. Chamber of Commerce v. Dep't of Labor, 174 F.3d 206, 212-13 (D.C. Cir. 1999) (holding that the Occupational Safety and Hazard Administration (OSHA) could not decide, via policy statement, that it would implement a particular enforcement program nationwide, where the directive would affect employers' interests in the same way that a substantive rule would affect their rights and where the policy denied enforcement discretion to the inspectors). Courts have struggled to implement the distinction between legislative rules and interpretive rules or policy statements.
63. David L. Franklin, Legislative Rules, Non-legislative Rules, and the Perils of the Short Cut, 120 Yale L.J. 276, 282-285 (2010) (describing the case law). Scholars too disagree about the correct line to draw.
64. John F. Manning, Non-legislative Rules, 72 Geo. Wash. L. Rev. 893, 933-946 (2004) (arguing that courts can better police the difference between legislative and inter pretive rules by assigning different legal effects to an agency's application of rules that are adopted without notice and comment),
65. Franklin, supra, at 303-23 (rejecting a "short cut" approach in favor of courts' traditional inquiry into a rule's nature and effects when deciding whether the agency must undergo notice-and-comment procedures).
66. Dunlop v. Bachowski, 421 U.S. 560, 566-68 (1975) (concluding that an agency's decision not to enforce was reviewable where Congress had provided guidelines for exer cise of its enforcement power); Note
67. Heckler v. Chaney, 470 U.S. 821, 833-34 (1985) (construing Dunlop).
68. See, e.g., Heckler, 470 U.S. at 831 (holding that the Food and Drug Administration's refusal to take enforcement action against states' unapproved use of drugs for lethal injec tion was unreviewable). For critiques of Heckler.
69. Eric Biber, Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction, 26 Va. Envtl. L.J. 461, 469-484 (2008),
70. Which argues that there is no fundamental difference between agency inaction and action under the Administrative Procedure Act (APA); Bressman, supra note 4 at 1658-60, which argues that, consistent with the founding goals of the administrative state-promoting accountability and preventing arbitrariness-agency inaction should be subject to the same principles of judicial review as is agency action.
71. Cass R. Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U. Chi. L. Rev. 653, 666-69 (1985), which argues that completely abandoning review of agency inaction reflects improper privileging of common law private rights over public rights created by statute.
72. See, e.g., id. at 833 (stating that "Congress may limit an agency's exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circum scribing an agency's power to discriminate among issues or cases it will pursue," but noting that, by tradition, it rarely does so); see also Arizona v. United States, 132 S. Ct. 2492, 2505 (2012) (emphasizing the complexities of and discretion in immigration enforcement).
73. See Lincoln v. Vigil, 508 U.S. 182, 193 (1993) (stating that agency allocation of funds from a lump sum appropriation is "committed to agency discretion by law" (internal quotation marks omitted)); cf. Anti-Deficiency Act, 31 U.S.C. § 1341(a)(1)(A) (2006) (preventing federal officials from "mak[ing] or authoriz[ing] an expenditure or obligation exceeding an amount available in an appropriation").
74. J.R. DeShazo & Jody Freeman, Congressional Competition to Control Delegated Power, 81 Tex. L. Rev. 1443, 1453-1454 (2003);
75. Robert J. Reinstein, The Limits of Executive Power, 59 Am. U. L. Rev. 259, 315 (2009).
76. David A. Martin, A Lawful Step for the Immigration System, Wash. Post, June 24, 2012, http://articles.washingtonpost.com/2012-06-24/opinions/35460047_1_deportation-policy-record-deportations-removals
77. The policy that calls for high-volume deportations is not only, or even primarily, Obama's. It is Congress's policy, expressed both through the substantive immigration laws and-importantly-through annual appro priations acts. Appropriators have showered the enforcement agencies with resources over the past two decades.
78. Joel A. Mintz, Enforcement at the EPA 173-75 (2012) (describing the effect of declining resources on EPA enforcement). But cf. David Weil, Crafting a Progressive Workplace Regulatory Policy: Why Enforcement Matters, 28 Comp. Lab. L. & Pol'y J. 125, 145 (2007) (showing that while the DOL's enforcement budget has been the subject of significant political debate, "[p]olitical offensives and counter- offensives have led over time to a surprisingly steady level of funding for OSHA appropri ations across administrations").
79. Curtis W. Copeland, Cong. Research Serv., RL34354, Congressional Influence on Rulemaking and Regulation Through Appropriations Restrictions 12-13 (2008) (describing budgetary provisions that prohibit the use of funds to implement or enforce a rule or set of rules, but that do not appear to prohibit the development of the rule); Note
80. Neal D. Devins, Regulation of Government Agencies Through Limitation Riders, 1987 Duke L.J. 456, 461-462 (1987) (describing the use of the appropriations process to accomplish substantive objectives that contravene established statutory objectives);
81. Jason A. MacDonald, Limitation Riders and Congressional Influence over Bureaucratic Policy Decisions, 104 Am. Pol. Sci. Rev. 766, 766 (2010)
82. Showing that "a substantial number of limitation riders are employed annually to influence substantively important policy decisions, and [that] they are effective at preventing bureaucratic policy decisions. The Fiscal Year 2012 budget, for example, included a rider preventing the government from enforcing new light bulb efficiency standards and another preventing the Administration from implementing a proposed executive order that would have required contractors bidding on government contracts to disclose their contributions to political candidates.
83. Pete Kasperowicz, House Votes to Block Enforcement of Energy Efficient Light Bulb Standards, The Hill (June 5, 2012) http://thehill.com/blogs/floor-action/house/231117-house-votes-to-block-enforcement-of-light-bulb-standards;
84. Sam Rosen-Amy, Ctr. for Effective Gov't, Congress Strips Out Many Controversial Riders from Funding Bills, but Leaves Public in the Dark, The Fine Print (Dec. 21, 2011), http://www.foreffectivegov.org/node/11936.
85. Copeland, supra note 43, at 24-25; cf. Heckler v. Chaney, 470 U.S. 821, 831 (1985) (arguing that decisions not to enforce involve "a complicated balancing of a number of factors," including whether the agency's resources are best spent on the particular enforce ment action and how the enforcement action requested best fits within the agency's overall policies). For further discussion of prosecutorial discretion, see Goldsmith & Manning, supra note 4, at 2293, which argues that "[p]rosecutorial discretion requires policy determi nations about how best to implement a statutory program." Note
86. Roscoe Pound, Law in Books and Law in Action, 44 Am. L. Rev. 12, 15 (1910) (arguing that the distinctions between the rules that purport to govern and that in fact govern are "very real" and "very deep");
87. Joshua Kleinfeld, Enforcement and the Concept of Law, 121 Yale L.J. Online 293, 296 (2011) ("[E]nforcement aims to make the norms of law actual: [I]t aims to make those norms obtain in the world." (emphases omitted)).
88. Areas in which OSHA rules have remained relatively static across administrations provide ample evidence for this proposition.
89. Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. Econ. & Org. 81, 97 (1985);
90. See also Weil, supra note 42, at 125-26 (arguing that changes in enforcement policy could create a more progressive workplace regulatory policy even without statutory change).
91. See Printz v. United States, 521 U.S. 898, 922 (1997) ("The Constitution does not leave to speculation who is to administer the laws enacted by Congress.").
92. Merriam-Webster's Collegiate Dictionary 383 (10th ed. 1996).
93. One group emphasizes that the President must "take Care" that the laws are faith fully executed by others: He must ensure that an officer to whom discretionary authority has been granted by statute acts within the statute's bounds.
94. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 648-50, 668-69 (1984).
95. A second school claims that the Take Care Clause means that the President is to execute federal law, or at least be held responsible for his delegations. See Saikrishna B. Prakash, Note, Hail to the Chief Administrator: The Framers and the President's Administrative Powers, 102 Yale L.J. 991, 1001 (1992). Relatedly, scholars dispute whether the President can direct or can merely oversee agency actions, see infra notes 354-63, and whether the Clause allows (or requires) the President to decline to enforce laws he deems unconstitutional, see supra note 18.
96. Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545, 546-549 (2004), which provides a historical discussion of the Vesting Clause thesis;
97. Gary Lawson, Ordinary Powers in Extraordinary Times: Common Sense in Times of Crisis, 87 B.U. L. Rev. 289, 305 (2007), which argues that the President lacks any powers other than those specifically granted by the Constitution;
98. Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 714-720, which defends the claim that the Vesting Clause vests powers.
99. Monaghan, supra note 11, at 3 (citing Harvey C. Mansfield, Jr., Taming the Prince: The Ambivalence of Modern Executive Power 2-4 (1989)).
100. Thus, the power-and duty-of the President to supervise enforcement is specific to the text via the Take Care Clause, implied within the Vesting Clause, and embedded within the constitutional structure.
101. Saikrishna Bangalore Prakash, A Taxonomy of Presidential Powers, 88 B.U. L. Rev. 327, 328 (2008) (setting forth a taxonomy of presiden tial powers that includes "specific powers," "vesting clause powers," "structural powers," and "extra-textual powers").
102. See Myers v. United States, 272 U.S. 52, 135 (1926) (concluding that the President, as the head of the Executive Branch, is authorized to "supervise and guide" executive officers in "their construction of the laws under which they act in order to secure that unitary and uniform execution of the laws which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone"); see also Proposed Executive Order Entitled "Federal Regulation," 5 Op. O.L.C. 59, 61 (1981) (recognizing limits on presidential authority, including that the President may not require or permit agencies to transgress boundaries set by Congress).
103. See, e.g., 5 U.S.C. §§ 901, 903 (2006) (authorizing the President to prepare govern ment reorganization plans); Chief Financial Officers Act of 1990, Pub. L. No. 101-576, 104 Stat. 2838 (codified at 31 U.S.C. § 901 (2006)) (creating the position of presidentially appointed Chief Financial Officer (CFO) for every agency, giving CFOs extensive powers to monitor agency revenues, expenditures, and accounting, enhancing the Office of Management and Budget (OMB), and establishing the Office of Federal Financial Management to coordinate their activities); see also Strauss, supra note 50, at 587-91 (dis cussing managerial powers such as the DOJ's control of government litigation and the Office of Personnel Management's employment functions).
104. Congress holds the power of the purse, U.S. Const. art. I, § 7, cl. 1, and "bounds executive discretion within varying limits." Harold H. Bruff, Balance of Forces 257 (2006).
105. See also Louis Fisher, Presidential Spending Power 59-61 (1975) (describing line-item appropriations). But presidents have consolidated power over the budget through the centralized preparation of the President's budget by OMB.
106. Christopher S. Yoo, Steven G. Calabresi & Anthony J. Colangelo, The Unitary Executive in the Modern Era, 1945-2004, 90 Iowa L. Rev. 601, 657-658 (2005) (describing transformation of the Bureau of the Budget into the more powerful OMB). On occasion, presidents have also asserted the prerogative not to spend appropriated funds on regulatory programs they dis favor. See infra note 109.
107. David J. Barron, From Takeover to Merger: Reforming Administrative Law in an Age of Agency Politicization, 76 Geo. Wash. L. Rev. 1095, 1121, 1126-1133 (2008) (looking at the role of personnel appointments as a means to control agency decisionmaking).
108. See Costle, 657 F.2d at 404-08 (describing private conversations between the President and executive agency staff).
109. See infra Part II.A (describing history of centralized regulatory review).
110. As scholars have noted, the Court generally has been unwilling to police the separation of functions within agencies.
111. Gillian E. Metzger, The Interdependent Relationship Between Internal and External Separation of Powers, 59 Emory L.J. 423, 436, 453 (2009). Moreover, the Court has rarely tried to define the contours of the executive, legislative, and judicial functions.
112. M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. Pa. L. Rev. 603, 612 (2001).
113. Springer v. Gov't of the Philippine Islands, 277 U.S. 189, 202 (1928) (emphasis added). The canonical pair of cases defining the scope of the President's constitutional authority to remove subordinate officers also puts great emphasis on the President's enforcement authority. Just nine years after the Court emphasized broad executive power in Myers v. United States, 272 U.S. 52 (1926), the Court in Humphrey's Executor v. United States, 295 U.S. 602, 632 (1935), approved a statute providing that the President could dismiss a member of the Federal Trade Commission only for cause. The Court distinguished its earlier holding in Myers on the basis that, unlike a postmaster, the FTC Commissioner was not "restricted to the performance of executive functions." Humphrey's Executor, 295 U.S. at 627-28.
114. See Buckley v. Valeo, 424 U.S. 1, 138-39 (1976) (finding that the Federal Election Commission's "enforcement power... is authority that cannot possibly be regarded as merely in aid of the legislative function of Congress," and concluding that "[a] lawsuit is the ultimate remedy for a breach of the law, and [that] it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to 'take Care that the Laws be faithfully executed'" (quoting U.S. Const. art. II, § 3)).
115. See 487 U.S. 654, 694-96 (1988) (emphasizing the lack of legislative aggrandizement).
116. Though the majority deemed the incursion on the enforcement power permissible, it did not disagree with Justice Scalia's assertion, in dissent, that "[g]overnmental investigation and prosecution of crimes is a quintessentially executive function." Id. at 706 (Scalia, J., dissenting); see also id. at 695-96 (majority opinion) (concluding that the Act provides "the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties" to oversee prosecution of law).
117. Peter L. Strauss, On the Difficulties of Generalization- PCAOB in the Footsteps of Myers, Humphrey's Executor, Morrison, and Freytag, 32 Cardozo L. Rev. 2255, 2283 (2011)
118. Noting that the majority opinion in Free Enterprise Fund "appears to have avoided large disruptions to the institutions whose responsibilities were immediately before them". I take no position here on the extent to which Free Enterprise Fund calls into question the theory underpinning Humphrey's Executor.
119. The canonical citation for the formalist functionalist distinction is Strauss, supra note 50, at 579-81, 667-68. For a powerful critique of the divide in Court doctrine and in scholarship.
120. John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1942-1945 (2011) which argues that, "contrary to [the] understandings of functionalism and formalism, the Constitution adopts no freestanding principle of separation of powers," but rather strikes different balances and expresses its purposes at many different levels of generality (emphasis omitted).
121. Kevin M. Stack, Agency Independence After PCAOB, 32 Cardozo L. Rev. 2391, 2399 (2011)
122. The Supreme Court's decision in PCAOB draws separation of func tions within the agency into separation-of-powers analysis. It does so by making the validity of good-cause removal protections under separation of powers depend on the com bination of functions within the agency. But see Magill, supra note 62, at 604, The effort to identify and separate governmental powers fails because, in the contested cases, there is no principled way to distinguish between the relevant powers.
123. Lower courts, as well, have relied on the adjudication-enforcement distinction. See, e.g., Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1536-37, 1545-47 (9th Cir. 1993) (relying on Myers and holding that the Endangered Species Act "God Squad" Committee proceedings are subject to the ex parte communications statutory ban and that any inappropriate communications from the White House would be covered by the ban because the proceedings are akin to adjudication).
124. 130 S. Ct. at 3158-59 (emphasizing, in concluding that the dual for-cause protections were unconstitutional, that the Board was "empowered to take significant enforcement action" and that the power to "start, stop, or alter individual Board investigations, [are] executive activities typically carried out by officials within the Executive Branch").
125. United States v. Nixon, 418 U.S. 683, 693 (1974); see also United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) ("[A]s an incident of the constitutional separation of powers,... the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions."). For a discussion of the unique separation-of-powers issues at stake in the criminal context, see Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989 (2006).
126. Id. at 832 (citing U.S. Const. art. II, § 3). However, agencies can adopt legislative rules that govern how they exercise enforcement discretion; parties can then challenge an agency's failure to comply with these rules.
127. Elizabeth Magill, Agency Self-Regulation, 77 Geo. Wash. L. Rev. 859, 882 (2009) (citing, e.g., Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 945 (D.C. Cir. 1987)
128. Discussing Food and Drug Administration (FDA) "action levels," which advised producers that the agency would not prosecute shipments of corn having twenty parts per billion or fewer of certain contaminants.
129. Nancy V. Baker, Department of Justice, in A Historical Guide to the U.S. Government 345, 347-349 (George Thomas Kurian ed., 1998)
130. Describing arguments made by those who charge that law enforcement should be less political and noting historical efforts to remove the Justice Department from presidential control; Garrett Epps, Why We Should Make Attorney General an Elective Office, Salon (Mar. 9, 2007, 7:30 AM), Note
131. http://www.salon.com/2007/03/09/attorney_general/;
132. Lincoln Caplan, Hyper Hacks: What's Really Wrong with the Bush Justice Department, Slate (Mar. 14, 2007, 5:53 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2007/03/hyper_hacks.html (celebrating a "nonpolitical tradition of federal law enforcement").
133. Strauss, supra note 15 (arguing that presidents may oversee particular agency decisions but may not direct them); Caplan, supra note 75 (arguing that law enforcement officials should be insulated from presidential politics).
134. Kagan, supra note 2, at 2357-58; Caplan, supra note 75; see also infra notes 188-91 and accompanying text (discussing modern scandals involving politicization of law enforce ment and describing internal White House rules that, in recognition of concern about politicization of enforcement, limit White House involvement in specific enforcement actions).
135. Compare Saikrishna Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521, 521 (2005) (concluding that "history establish[es] that the president is the constitutional prosecutor of all federal offenses whether prosecuted by official or popular prosecutors"), with Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561, 562-63 (examining the early role of the Office of the Attorney General and concluding that "from the start of this Republic," questions about the scope of the President's authority over law enforce ment "were present and their answers uncertain"). See also Prakash, supra, at 524 n.18 (collecting literature on this topic).
136. Arguments based on historical practice are common in controversies relating to separation of powers.
137. Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 412, 412 (2012).
138. I offer the following examples as illustrations of the presidential enforcement power, but do not claim that these examples provide a basis to infer congressional acquiescence to any particular understanding of that power. Cf. id. at 448-52 (arguing that the assumptions underlying the acquiescence-based approach to historical practice fit poorly with the reality of the modern executive- legislative relationship).
139. The Jewels of the Princess of Orange, 2 Op. Att'y Gen. 482 (1831).
140. President and Accounting Officers, 1 Op. Att'y Gen. 624 (1823). In 1823, President Monroe had asked Attorney General Wirt whether he could countermand the decisions of accounting officers about the amount owed to claimants. Wirt concluded that the assumption of an adjudicative officer's authority by the President himself was impermissible. The President, rather, must see to it that those officers under his superintendence "do their duty faithfully," which he defined as "honestly: not with perfect correctness of judgment, but honestly." Id. at 625-26 (emphasis omitted). On the question of the authority of the President to direct subordinates, see also a subsequent opinion from Attorney General Cushing to President Buchanan: Relation of the President to Executive Departments, 7 Op. Att'y Gen. 453, 469-71 (1855) (asserting that "no Head of Department can lawfully perform an official act against the will of the President," though acknowledging that "all the ordinary business of administration" is, in statutory terms, placed under the authority of the Departments, not the President, and "may be performed by its Head, without the special direction or appearance of the President").
141. 2 Op. Att'y Gen. at 487 ("The interest of the country and the purposes of justice manifestly require that he should possess [the power to direct the District Attorney to discontinue a prosecution]; and its existence is necessarily implied by the duties imposed upon him in that clause of the [C]onstitution..., which enjoins him to take care that the laws be faithfully executed."). Taney noted, however, that "[t]he district attorney might refuse to obey the President's order; and if he did refuse, the prosecution, while he remained in office, would still go on." Id. at 489.
142. Id. at 492. See infra notes 89-91 and accompanying text (discussing examples from the first three administrations).
143. 2 Op. Att'y Gen. at 485. Thomas Jefferson, by contrast, wrote that the authority to dismiss Sedition Act prosecutions flowed from the pardon power, suggesting that he believed that the pardon power conferred on the President some implicit control over criminal prosecutions. Letter from Thomas Jefferson to Judge Spencer Roane (Sept. 6, 1819), in 10 The Writings of Thomas Jefferson, 140, 141 (Paul Leicester Ford ed., 1989).
144. 2 Op. Att'y Gen. at 486 (quoting U.S. Const. art. II, § 3). That does not mean that the President has lawmaking power: He "is not required to communicate any new authority to the district attorney." Id. at 489. But if he believes that "the forms of law [are being] abused... it would become his duty to take measures to correct the procedure. And the most natural and proper measure to accomplish that object would be, to order the district attorney to discontinue the prosecution." Id.
145. See id. at 490-91 (discussing the District Attorney's relationship with executive and judicial power).
146. Id.; see also id. at 487 ("The interest of the country and the purposes of justice mani festly require that [the President] should possess" the power to direct the district attorney.). The jewels at issue, Taney explained, were "known to have attracted the atten tion of the President, and to have become the subject of a correspondence with the min ister of a foreign power." Id. He added, "It would be indiscreet in the highest degree [for]... the district attorney[] to dismiss such a prosecution on his own responsibility, without first obtaining the approbation of the President." Id.
147. But cf. Bruff, supra note 58, at 456 (arguing that the opinion stands for the proposi tion that the President, and not a local prosecutor, makes foreign policy).
148. Calabresi & Yoo, supra note 2, at 67-68; Prakash, supra note 78, at 560-63. More famously, Jefferson also declined to enforce the Sedition Act on the ground that he believed it to be unconstitutional. Calabresi & Yoo, supra note 2, at 67; Meltzer, supra note 18, at 1189-90. Relatedly, Jefferson ordered an end to prosecutions for libel because he believed them to be unconstitutional. Calabresi & Yoo, supra note 2, at 68.
149. Bruff, supra note 58, at 459 ("For more than the first half of our nation's history, there was no institutional mechanism for the President to use in coordinating government policymaking.... [D]omestic matters were left mostly to department heads."). But cf.
150. Jerry L. Mashaw, Creating the Administrative Constitution 285-316 (2012)
151. Demonstrating that basic matters of administrative institutional design and political and legal control over administration, during the first half of the Republic, are less disjunctive from contemporary practice than commonly thought; Note
152. Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829, 116 Yale L.J. 1636, 1646 (2007) (showing that the 1807-1809 embargo "featured stunning delegations of discretionary authority both to the President and to lower-level officials").
153. Harold J. Krent, Presidential Powers 60-64 (2005);
154. Michael Herz, The Attorney Particular: Governmental Role of the Agency General Counsel, in Government Lawyers 143, 145-147 (Cornell W. Clayton ed., 1995).
155. For nearly the first hundred years of the position's existence, the Attorney General did not supervise litigation of local district attorneys (now U.S. Attorneys). In 1870, Congress created the DOJ with centralized liti gating authority, in response to the avalanche of legal claims arising from the Civil War. Already, anxiety about expanding presidential power in the realm of law enforcement was evident. Solicitor positions that had been created previously in various departments remained dispersed, and many in Congress voiced concern about how a consolidated Justice Department would create a more dangerous presidency. Baker, supra note 75, at 351.
156. On the Progressive Movement's effect on administration and the presidency,
157. Stephen Skowronek, The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive, 122 Harv. L. Rev. 2071, 2083-2092 (2009);
158. Andrea Scoseria Katz, The Progressive Presidency and the Shaping of the Modern Executive, at 14-19, 21-31 (2011) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1900936.
159. Skowronek, supra note 94, at 2084-2085. It is important to note, however, that Progressives also sought to insulate administration from political control.
160. Cass R. Sunstein, Constitutionalism After the New Deal, 101 Harv. L. Rev. 421, 422-423 (1987) (discussing the desire for independent commissions during the New Deal).
161. Harold H. Bruff, Presidential Management of Agency Rulemaking, 57 Geo. Wash. L. Rev. 533, 546 (1989) (describing the responsibilities of OMB);
162. Peri E. Arnold, Making the Managerial Presidency 53 (1998) (describing the creation of the Bureau of the Budget);
163. Terry M. Moe, The Politicized Presidency, in The Managerial Presidency 135, 142-143 (James P. Pfiffner ed., 1991) (describing politicization and cen tralization of bureaucracy and the role of the Bureau and OMB);
164. Calabresi & Yoo, supra note 2, at 427 (noting that "the OMB regulatory review program can be traced to the creation of the Bureau of the Budget during the Harding administration").
165. Dwight Waldo, The Administrative State 133-135 (1984) (describing New Deal writings in support of centralization);
166. Luther Gulick, Politics, Administration, and the "New Deal," 169 Annals Am. Acad. Pol. & Soc. Sci. 55, 58-59, 64-66 (1933) (offering defense of centralization, including on the ground that it promotes economies of scale and democratic engagement).
167. Peri E. Arnold, Making the Managerial Presidency 93-107 (1998).
168. Skowronek, supra note 94, at 2091.
169. Calabresi & Yoo, supra note 2, at 241.
170. Baker, supra note 75, at 351.
171. Neal Devins, Government Lawyers and the New Deal, 96 Colum. L. Rev. 237, 251 n.79, 257-58 & 258 n.116 (1996) (reviewing William E. Leuchtenburg, The Supreme Court Reborn (1995)) (describing Franklin Delano Roosevelt's efforts to achieve centralization).
172. Christopher S. Yoo, Steven G. Calabresi & Anthony J. Colangelo, The Unitary Executive in the Modern Era, 1945-2004, 90 Iowa L. Rev. 601, 663 (2005).
173. Proposals Regarding an Independent Attorney General, 1 Op. O.L.C. 75, 75 (1977).
174. Skowronek, supra note 94, at 2098.
175. David E. Lewis & Terry M. Moe, The Presidency and the Bureaucracy: The Levers of Presidential Control, in The Presidency and the Political System 367, 389-390 (Michael Nelson ed., 9th ed. 2010).
176. Nixon's other reforms included an enlarged White House staff, a new White House-centered Domestic Council to formulate policy positions, and an expansive OMB. Kagan, supra note 2, at 2276. Nixon also unsuccessfully tried to impound money that Congress had appropriated for executive agencies, ordering agencies not to spend billions of dollars earmarked for a variety of domestic programs. See Train v.
177. City of New York, 420 U.S. 35 (1975) (holding that the EPA Administrator was not authorized to allot to the states less than the entire amounts authorized to be appropriated); Fisher, supra note 58, at 147-201 (describing history of presidential impoundment); Note
178. Abner J. Mikva & Michael F. Hertz, Impoundment of Funds-The Courts, the Congress and the President: A Constitutional Triangle, 69 Nw. U. L. Rev. 335 (1974) (analyzing the history of impoundment, as well as the political and judicial response, and concluding that the practice is unconstitutional).
179. Congress responded with the Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, 88 Stat. 298 (codified as amended at 2 U.S.C. §§ 621-691 (2006)), which establishes a framework for mandatory and discretionary spending and forces the President to seek legislative approval before terminating appropriations. The Act also established the Congressional Budget Office as a counterweight to OMB. Yoo, Calabresi & Colangelo, supra note 105, at 666.
180. Kagan, supra note 2, at 2276.
181. Lewis & Moe, supra note 109, at 390.
182. Exec. Order No. 12,291 § 3, 3 C.F.R. 127, 128-30 (1981); see also Lewis & Moe, supra note 109, at 390 (discussing Reagan's regulatory efforts). Reagan also created a Task Force on Regulatory Relief that suspended some two hundred pending regulations. Lewis & Moe, supra note 109, at 390.
183. Exec. Order No. 12,291 §§ 2, 3, 3 C.F.R. at 128.
184. Id. § 3(f)(3), 3 C.F.R. at 130; see also Proposed Executive Order Entitled "Federal Regulation," 5 Op. O.L.C. 59, 63-64 (1981) (reasoning that the President and OMB Director lacked authority to displace agencies in discharging their statutory functions).
185. Exec. Order No. 12,291 § 3(e)-(f), 3 C.F.R. at 129-30.
186. Exec. Order No. 12,498, 3 C.F.R. 323 (1985); see also Kagan, supra note 2, at 2277-78 (discussing Executive Orders 12,291 and 12,498).
187. Alan B. Morrison, OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation, 99 Harv. L. Rev. 1059, 1065 (1986)).
188. Jeffrey A. Fine & Richard W. Waterman, A New Model of Presidential Leadership: Controlling the Bureaucracy, in Presidential Leadership: The Vortex of Power 19, 40 (Bert A. Rockman & Richard W. Waterman eds., 2008).
189. Eleanor M. Fox & Lawrence A. Sullivan, Antitrust-Retrospective and Prospective: Where Are We Coming From? Where Are We Going?, 62 N.Y.U. L. Rev. 936, 947 (1987).
190. Fine & Waterman, supra note 118, at 20, 33. These efforts were of mixed success as they were met with considerable opposition from Congress and agency officials. Id. at 33, 38.
191. Lewis & Moe, supra note 109, at 391.
192. Clinton's OMB review process, established in Executive Order 12,866, again required that agencies submit major regulations to OMB for review, continued cost-benefit analysis as "the basic criterion in assessing regulatory decisions" and established an "annual regulatory planning process" similar to Reagan's. Kagan, supra note 2, at 2285-2286; Note
193. see also Exec. Order No. 12,866, 3 C.F.R. 638 (1993), reprinted as amended in 5 U.S.C. § 601 (2006). But Executive Order 12,866 also enabled the President's delegates to "request further consideration" on proposed rules of independent agencies that appeared to conflict with other agency action, the regulatory principles set out in the executive order, or "the President's priorities." Exec. Order No. 12,866 § 4(c), 3 C.F.R. at 642-43.
194. Kagan, supra note 2, at 2248.
195. Lewis & Moe, supra note 109, at 393. The Bush OIRA also "invented a new tool called the 'prompt' letter-a public letter to an agency suggesting that it should consider adopting a new regulation." Note
196. John D. Graham, Paul R. Noe & Elizabeth L. Branch, Managing the Regulatory State: The Experience of the Bush Administration, 33 Fordham Urb. L.J. 953, 972 (2006). The Bush OIRA issued over a dozen such letters, while also launching a process for reviewing and reforming existing regulations.
197. Exec. Order No. 13,422 § 5(b), 3 C.F.R. 191, 193 (2007). On the use of the appointment power to populate the bureaucracy with politically responsive actors, see Barron, supra note 59, at 1121-33, Note
198. Terry M. Moe, The Politicized Presidency, in The New Direction in American Politics 235 (John E. Chubb & Paul E. Peterson eds., 1985).
199. Lewis & Moe, supra note 109, at 393-94. For an overview of centralized regulatory review under the Bush Administration.
200. Curtis W. Copeland, The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking, 33 Fordham Urb. L.J. 1257, 1286-1304 (2006).
201. Daniel T. Deacon, Note, Deregulation Through Nonenforcement, 85 N.Y.U. L. Rev. 795, 807-15 (2010) (examining modes of deregulation through nonenforcement under the second Bush Administration).
202. Minority Staff of H. Comm. on Gov't Reform, Spec. Investigations Div., Prescription for Harm: The Decline in FDA Enforcement Activity, at i (2006), available at http://oversight-archive.waxman.house.gov/documents/20060627101434-98349.pdf.
203. Michael A. Fletcher, Labor Dept. Accused of Straying From Enforcement, Wash. Post, Dec. 1, 2008, at A2 (noting that "[t]here are few federal agencies where the ideological differences separating many Democrats and Republicans play out more plainly" than in the DOL).
204. See id. (describing the Bush DOL's shift in emphasis).
205. One report issued by the Government Accountability Office (GAO) found that the Bush Administration's DOL inadequately investigated reports from low-wage workers of employers who failed to pay the federal minimum wage, neglected to pay overtime, or refused to issue final paychecks. U.S. Gov't Accountability Office, GAO-09-458T, Note
206. Wage and Hour Division's Complaint Intake and Investigative Processes Leave Low Wage Workers Vulnerable to Wage Theft 3-4 (2009); Note
207. See also Press Release, H. Comm. on Educ. & Labor, Bush Labor Department Failed to Properly Investigate Wage Theft, GAO Tells House Panel (Mar. 25, 2009), available at http://democrats.edworkforce.house.gov/press-release/bush-labor-department-failed-properly-investigate-wage-theft-gao-tells-house-panel (discussing this report).
208. Another report, issued by the DOL Inspector General, found that the Mine Safety and Health Administration did not conduct federally required inspections at fifteen percent of the country's underground coal mines. U.S. Dep't of Labor, Office of Inspector Gen., Rep. No. 05-08-001-06-001.
209. Underground Coal Mine Inspection Mandate Not Fulfilled Due to Resource Limitations and Lack of Management Emphasis 1 (2007); see also Fletcher, supra note 135, at A2 (discussing this report).
210. Another audit by the DOL Inspector General found that a number of workplace hazards may have been deterred if OSHA had engaged in appropriate enforcement and inspection activity. U.S. Dep't of Labor, Office of Inspector Gen., Rep. No. 02-09-203-10-105, Employers with Reported Fatalities Were Not Always Properly Identified and Inspected Under OSHA's Enhanced Enforcement Program 2-3 (2009); see also R. Jeffrey Smith, Initiative on Worker Safety Gets Poor Marks; IG's Report Links Weak Enforcement to Job Fatalities, Wash. Post, Apr. 2, 2009, at A6 (discussing this report).
211. Deacon, supra note 130, at 809 n.87. A former director of the EPA's Office of Civil Enforcement, for example, explained the decline as caused by a "lack [of] political support [that field agents] used to be able to count on, especially in the White House." Id. at 809 nn.87-88 (quoting John Solomon & Juliet Eilperin, Bush's EPA is Pursuing Fewer Polluters: Probes and Prosecutions Have Declined Sharply, Wash. Post, Sept. 30, 2007, at A1).
212. Id. at 812 (citing Joel A. Mintz, "Treading Water": A Preliminary Assessment of EPA Enforcement During the Bush II Administration, 34 Envtl. L. Rep. 10, 912, 10,918 (2004)).
213. Jonathan Remy Nash & Richard L. Revesz, Grandfathering and Environmental Regulation: The Law and Economics of New Source Review, 101 Nw. U. L. Rev. 1677, 1678-79 (2007).
214. New York v. EPA, 443 F.3d 880, 890 (D.C. Cir. 2006).
215. Nash & Revesz, supra note 141, at 1678-79; see also Steven D. Cook, Effect of New Source Review Decision Limited by EPA Policy, Proposed Rule, 37 Env't Rep. (BNA) 662, 662 (Mar. 31, 2006).
216. See Mintz, supra note 140, at 10,919 (noting that as of 2004 only one new enforce ment case had been brought by the EPA during the Bush Administration). For further discussion, see Deacon, supra note 130, at 812.
217. Norman S. Poser, Why the SEC Failed: Regulators Against Regulation, 3 Brook. J. Corp., Fin. & Com. L. 289, 309-317 (2009) (detailing the SEC's enforcement failures).
218. For example, the Bush Administration did not enforce employment or voting rights laws as aggressively as did its predecessor, but it devoted significant resources to enforcing the prohibition on sex trafficking and combating various forms of religious discrimination.
219. Goodwin Liu, The Bush Administration and Civil Rights: Lessons Learned, 4 Duke J. Const. L. & Pub. Pol'y 77, 81 (2009).
220. Exec. Order No. 13,497, 3 C.F.R. 218 (2009).
221. See Exec. Order No. 13,563, 3 C.F.R. 215 (2011). The Obama Administration has also encouraged independent agencies, as well as executive agencies, to engage in retro spective review of regulations and has put greater emphasis on centralization of rulemaking in negotiations with trade partners.
222. See Exec. Order No. 13,579, 3 C.F.R. 256, 257 (2011) (requesting that independent regulatory agencies engage in retrospective review); Exec. Order No. 13,609, 77 Fed. Reg. 26,413, 26,413-14 (May 1, 2012) (promoting international regulatory cooperation through the Regulatory Working Group).
223. In May 2012, the President issued another executive order, directing executive agencies to take further steps to engage in retrospective review of regulations, with the aim of modernizing them and removing those deemed unnecessary. Exec. Order No. 13,610, 77 Fed. Reg. 28,469 (May 10, 2012).
224. For example, OSHA has increased its inspection and citation rates considerably, while committing to a new form of risk-based enforcement, which targets certain high-risk sectors and firms. See OMB Watch, The Obama Approach to Public Protection: Enforcement 6, 8 (2010), available at http://www.ombwatch.org/files/regs/obamamidtermenforcementreport.pdf (reporting a 167% increase in the number of OSHA citations from the previous year during Obama's first full year in office). OSHA also announced that it will reevaluate its voluntary compliance program, which was favored by the Bush Administration and applauded by numerous academics but had significant problems in practice according to the GAO. See Press Release, U.S. Dep't of Labor, OSHA, U.S. Department of Labor's OSHA Begins Evaluation of Voluntary Protection Programs (June 18, 2009), available at http://www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=NEWS_RELEASES&p_id=18065; U.S. Gov't Accountability Office, GAO 09-395, OSHA's Voluntary Protection Programs: Improved Oversight and Controls Would Better Ensure Program Quality 18 (2009) (crit icizing operations of the voluntary compliance program and recommending changes to the program); U.S. Gov't Accountability Office, GAO 04-378, Workplace Safety and Health: OSHA's Voluntary Compliance Strategies Show Promising Results, but Should Be Fully Evaluated Before They Are Expanded 4, 43 (2004) (recommending further evaluation of OSHA's voluntary compliance program).
225. William G. Howell, Power Without Persuasion: The Politics of Direct Presidential Action 177, 180 (2003) (explaining that the use of unilateral mea sures increases during periods of congressional gridlock).
226. Ian Urbina, No Survivors Found at Site of W.Va. Mine Disaster, N.Y. Times, Apr. 10, 2010, at A1.
227. Remarks Following a Meeting on Mine Safety, 2009 Daily Comp. Pres. Doc. 1 (Apr. 15, 2010). The Mine Safety and Health Administration (MSHA) ultimately con ducted impact assessments at eleven coal, metal, and nonmetal mines based on factors that indicate safety problems, including frequent complaints to regulators, high injury and ill ness rates, and fatalities. The MSHA found "significant and substantial" violations at all but three of the eleven mines. See News Release, Mine Safety and Health Administration, MSHA Puts 8 Mines on Notice for Potential Patterns of Violations (Nov. 30, 2011).
228. Nat'l Comm'n on the BP Deepwater Horizon Oil Spill and Offshore Drilling, Deep Water: The Gulf Oil Disaster and the Future of Offshore Drilling-Report to the President, at vi (2011), available at http://www.gpo.gov/ fdsys/pkg/GPO-OILCOMMISSION/pdf/GPO-OILCOMMISSION.pdf.
229. Address to the Nation on the Oil Spill in the Gulf of Mexico, 2009 Daily Comp. Pres. Doc. 2 (June 15, 2010).
230. Obama announced the creation of a Trade Enforcement Unit charged with investigating unfair trade practices in countries like China; a Financial Crimes Unit of highly trained investigators to crack down on large-scale fraud and protect people's investments; and a special unit of federal prosecutors and leading state attorneys general focused on the mortgage crisis. Address Before a Joint Session of Congress on the State of the Union, 2012 Daily Comp. Pres. Doc. 3, 8 (Jan. 24, 2012).
231. David Johnston & Neil A. Lewis, Ending Raids of Dispensers of Marijuana for Patients, N.Y. Times, Mar. 19, 2009, at A20;
232. Erick Eckholm, Medical Marijuana Industry is Unnerved by U.S. Crackdown, N.Y. Times, Nov. 24, 2011, at A22 (noting the DOJ's shift).
233. See Johnston & Lewis, supra note 159, at A20 (noting that "the new approach was consistent with statements made by President Obama in the campaign and was based on an assessment of how to allocate scarce enforcement resources").
234. Julia Preston, Students Press for Action on Immigration, N.Y. Times, May 31, 2012, at A14 (noting young activists' frustration with congressional inaction and with the President's refusal to halt deportation).
235. Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, on Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011), available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf. Cristina Rodriguez and Adam Cox have shown how the President has historically exercised power over core immigration policy in a manner obscured from scrutiny, through prosecutorial discretion and the use of discretionary enforcement power.
236. Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law, 119 Yale L.J. 458, 510-530 (2009).
237. Cecilia Muñoz, Immigration Update: Maximizing Public Safety and Better Focusing Resources, White House Blog (Aug. 18, 2011, 2:00 PM), http://www.whitehouse.gov/ blog/2011/08/18/immigration-update-maximizing-public-safety-and-better-focusing- resources.
238. Press Release, Dep't of Homeland Sec., Secretary Napolitano Announces Deferred Action Process for Young People Who Are Low Enforcement Priorities (June 15, 2012), available at http://www.dhs.gov/news/2012/06/15/secretary-napolitano-announces-deferred- action-process-young-people-who-are-low; see also Memorandum from Janet Napolitano, Sec'y of Homeland Sec., on Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) [hereinafter Napolitano Prosecutorial Discretion Memorandum]. General authority for deferred action exists under the Immigration and Nationality Act (INA) § 103(a), 8 U.S.C. § 1103(a) (2006), which provides the Secretary of Homeland Security authority to enforce the immigration laws. Deferred action is a discretionary determination to decline pursuing a removal action against an individual as an act of prosecutorial discretion; it does not confer lawful status upon an individual. It has more frequently been used to grant temporary relief to nationals of particular countries in times of crisis. Individuals who have been granted deferred action are eligible to receive employment authorization for the period of deferred action.
239. The policy makes clear that individuals meeting specified criteria are in fact eligible for deferred action, although decisions will still be made on a case-by-case basis. Napolitano Prosecutorial Discretion Memorandum, supra note 164, at 1-2. It also formalizes the relief available and even extends it to individuals who are not yet in deportation proceedings.
240. Presidential Memorandum on Regulatory Compliance, 76 Fed. Reg. 3825, 3825-26 (Jan. 18, 2011).
241. In contrast, the regulatory review memorandum largely embraced the Clinton approach. See supra notes 123-24 (discussing the Clinton Memorandum).
242. Presidential Memorandum on Regulatory Compliance, 76 Fed. Reg. at 3825.
243. Notably, independent agencies are encouraged to comply only with the first directive-that of making their own information available. Id.
244. Sabel & Simon, supra note 14, at 78.
245. Pildes & Sunstein, supra note 3, at 15.
246. Howell, supra note 152, at 179;
247. Charlie Savage, Shift on Executive Power Lets Obama Bypass Rivals, N.Y. Times, Apr. 23, 2012, at A1 (discussing President Obama's decision to use unilateral policymaking power to bypass congressional inaction).
248. Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of 26 and 42 U.S.C.).
249. Pub. L. No. 111-203, 124 Stat. 1376 (2010) (codified in scattered sections of the U.S. Code).
250. Terry M. Moe & William G. Howell, Unilateral Action and Presidential Power: A Theory, 29 Presidential Stud. Q. 850, 860 (1999).
251. See id. at 854-55 (arguing that Presidents use ambiguity in the Take Care duty as source of unilateral power); cf. Moe, supra note 97, at 140-42 (arguing that Presidents have centralized and politicized administration for systemic reasons, because of the nature of our institutions and the location of Presidents within them).
252. See supra notes 34-44 and accompanying text (comparing the heightened procedural requirements and expanded judicial review imposed on rulemaking with the informal nature and lessened reviewability of enforcement documents and of decisions not to enforce).
253. See Howell, supra note 152, at 179-81 (explaining that presidents have relied on unilateral powers with greater frequency due to overwhelming demands on their time, con gressional gridlock, and the growth of the administrative state); Note
254. Stephen Skowronek, The Politics Presidents Make 31, 55-57, 442-46 (1993) (arguing that traditional means of enforcing presidential power remain important in the modern presidency);
255. Stephen Skowronek, Presidential Leadership in Political Time (2008)
256. Arguing that the thickening of our political institutions has introduced numerous veto points into the system); Moe & Howell, supra note 180, at 852 ("[T]he President's powers of unilateral action are a force in American politics precisely because they are not specified in the formal structure of government.... The result is a slow but steady shift of the institutional balance of power over time in favor of presidents."); Note
257. Andrew Rudalevige, Executive Orders and Presidential Unilateralism, 42 Presidential Stud. Q. 138 (2012)
258. Exploring the use of executive orders and concluding that, even when issuing unilateral orders, a President must persuade and bargain with members of the bureaucracy.
259. George C. Edwards III & Stephen J. Wayne, Presidential Leadership: Politics and Policy Making 260 (1994) ("[P]residents often lack experience in adminis tration and find other tasks more compatible with their skills and interests.").
260. As some of the administrative state's most famous architects and theorists have written, specialization and fragmentation are integral to expertise in decisionmaking.
261. Stephen Breyer, Breaking the Vicious Circle 61-63 (1993) Discussing the "virtues of bureaucracy");
262. James M. Landis, The Administrative Process 23 (1938)
263. Arguing that "the art of regulating an industry requires knowledge of the details of its operation" For this reason, several administrative law doctrines reinforce specialization in administration.
264. See, e.g., Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 863 (1984) (noting that agencies "implement[] policy decisions in a technical and com plex arena"); Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983) (establishing that courts must be at their most deferential when agencies are acting at the frontiers of science).
265. Kagan, supra note 2, at 2357-58.
266. See Joshua D. Blank, In Defense of Individual Tax Privacy, 61 Emory L.J. 265, 278-79 (2011) (describing charges by the House Judiciary Committee in its articles of impeachment against Nixon).
267. Sue Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561, 653 & n.215 (1989).
268. The recent scandal involving IRS targeting of Tea Party groups demonstrates the dangers of partisan bias in enforcement and the problems that can arise even without any apparent presidential involvement.
269. Jonathan Weisman, I.R.S. Apologizes to Tea Party Groups over Audits of Applications for Tax Exemption, N.Y. Times, May 11, 2013, at A11, available at http://www.nytimes.com/2013/05/11/us/politics/irs-apologizes-to-conservative-groups-over-application-audits.html.
270. At the same time, the incident suggests the importance of greater oversight and disclosure of administrative enforcement policy.
271. E.g., Memorandum from Charles F.C. Ruff, Counsel to the President, and Daniel Marcus, Senior Counsel (Nov. 24, 1998), available at http://www.clintonlibrary.gov/previous/KAGAN%20DPC/DPC%205-17/DOMESTIC%20POLICY%20COUNCIL%20BOXES%205-30_Part185.pdf.
272. See, e.g., 26 U.S.C. § 6103(a), (d)(1) (2006) (providing that "[r]eturns and return information shall be confidential" and excepting from the general nondisclosure rule requests from only certain agencies, in certain circumstances).
273. U.S.C. § 552 (2012) (detailing circumstances under which agencies must make information available to the public).
274. Edwards & Wayne, supra note 185, at 260.
275. Id. ("[P]residents are more likely to try to provide the public with immediate gratifi cation through the passage of legislation or the giving of speeches than with efforts to manage the implementation of policies.").
276. See supra notes 153-57 and accompanying text (discussing the presidential response to the two events).
277. Cf. Colleen J. Shogan, The Moral Rhetoric of American Presidents 172 (2006) ("[E]xalted rhetoric fosters the notion that modern presidents have the power to accomplish tasks that no executive embedded within a separated power system possesses.").
278. William Yardley, New Federal Crackdown Confounds States That Allow Medical Marijuana, N.Y. Times, May 2011, at A13.
279. Eckholm, supra note 159, at A22.
280. See supra notes 162-63 and accompanying text (discussing the Obama Administration policy of prosecutorial discretion).
281. Julia Preston, Deportations Continue Despite U.S. Review of Backlog, N.Y. Times, June 7, 2012, at A13 (reporting that fewer than two percent of the more than 411,000 deportation cases reviewed were closed).
282. See, e.g., Letter from Immigration Law Professors to President Barack Obama on Executive Authority to Grant Administrative Relief for DREAM Act Beneficiaries (May 28, 2010), available at http://www.nilc.org/document.html?id=754 (outlining statutory bases for broader relief).
283. For further discussion, see supra notes 162-66, infra notes 411-15 and accompanying text.
284. See supra Part II.A.1 (discussing the Progressive movement's goals regarding cen tralized administration).
285. See id. (discussing presidential involvement in enforcement during Progressive era).
286. Pildes, supra note 1, at 1383.
287. See Skowronek, supra note 94, at 2072; Pildes, supra note 1, at 1384.
288. See Skowronek, supra note 94, at 2073, 2092-96 (describing the conservative move ment's arguments in support of presidential power and its opposition to market regula tion); Bagley & Revesz, supra note 13, at 1263-64 (describing support for presidential control of the administrative state and opposition to overzealous regulators).
289. Bagley & Revesz, supra note 13, at 1261-62 (internal quotation marks omitted); see also generally.
290. Richard L. Revesz & Michael A. Livermore, Retaking Rationality (2008) (arguing that cost-benefit analysis has been misused by conservative opponents of regulation and advancing a series of reforms to provide more balance).
291. Bagley & Revesz, supra note 13, at 1262.
292. Whether the Obama Administration has addressed the deregulatory effect of centralized regulatory review in any significant way is the subject of debate.
293. Rena Steinzor, The Case for Abolishing Centralized White House Regulatory Review, 1 Mich. J. Envtl. & Admin. L. 209, 268 (2012) (arguing that centralized regulatory review during the Obama Administration remains a one-way ratchet for weakening protective rules).
294. Bagley & Revesz, supra note 13, at 1324; see also Daniel A. Farber, Rethinking the Role of Cost-Benefit Analysis, 76 U. Chi. L. Rev. 1355, 1356-57 (2009) (reviewing Revesz & Livermore, supra note 209) (arguing that cost-benefit analysis has been used to evade clear statutory mandates and that reform of OIRA should go further than what is urged by Revesz and Livermore).
295. See supra Part II.A.4 (discussing the Bush Administration's enforcement efforts).
296. Kenneth Newton & Pippa Norris, Confidence in Public Institutions: Faith, Culture or Performance?, in Disaffected Democracies: What's Troubling the Trilateral Countries? 52, 62 72-73 (Susan J. Pharr & Robert Putnam eds., 2000);
297. Alexandra Natapoff, Underenforcement, 75 Fordham L. Rev. 1715, 1717, 1721 (2006) (arguing that when the state "routinely and predictably fails to enforce" the criminal law "to the detriment of vulnerable residents," it "weakens broader values of public protection, official evenhandedness, respect for the law, and democratic responsiveness").
298. See Howell, supra note 152, at 180 (arguing that, given public expectations, "it is difficult to think of a single area of governance that modern presidents can safely ignore"); Moe, supra note 97, at 141 (noting that presidents seek "responsive competence").
299. Cf. Pildes, supra note 1, at 1387 ("[T]he public[] will permit presidents to exercise more or less discretion depending on how credible those presidents are perceived to be.").
300. See supra note 18 (discussing the controversies generated from presidential decisions not to enforce laws that the President believes are unconstitutional).
301. See infra note 415 and accompanying text (discussing Justice Scalia's opinion in Arizona v. United States, 132 S. Ct. 2492 (2012)).
302. Alec MacGillis, Egg Firm Has Long Record of Violations, Wash. Post, Aug. 22, 2010, at A1 (noting that the farm had "repeatedly paid fines and settled complaints over health and safety violations and allegations ranging from maintaining a 'sexually hostile work environment' to abusing the hens that lay the eggs").
303. Upton Sinclair, The Jungle (1906).
304. Lyndsey Layton, Unsafe Eggs Linked to U.S. Failure to Act, Wash. Post, Dec. 11, 2010, at A1, A4 (describing conditions on farm).
305. MacGillis, supra note 220, at A11.
306. See Layton, supra note 222, at A4 (describing conditions on farm).
307. Layton, supra note 222, at A4; MacGillis, supra note 220, at A11 (listing federal and state environmental, immigration, labor, employment, and animal cruelty regulatory viola tions by the company, in addition to food safety violations); see also U.S. Gov't Accountability Office, GAO-08-435T, Federal Oversight of Food Safety: FDA's Food Protection Plan Proposes Positive First Steps, but Capacity to Carry Them Out Is Critical 8 (2008), available at http://www.gao.gov/new.items/d08435t.pdf (discussing overlapping and duplicative responsibilities of food safety agencies). For further discussion of the food safety agencies' overlapping regulatory schemes, see Freeman & Rossi, supra note 6, at 1147 & nn.47-55.
308. See Company in Fatal Fire Cited in Third State, N.Y. Times, Sept. 16, 1991, at A14 (describing fire); Note
309. Peter T. Kilborn, North Carolina Is Told to Improve Safety Role, N.Y. Times, Jan. 9, 1992, at A17 (describing failures of state agency charged with enforcing federal and state worker safety law and federal response).
310. See Freeman & Rossi, supra note 6, at 1138-155 (discussing policy-driven and public choice theories of why such delegations occur, and providing examples of "shared regulatory space"). Until recently, most administrative law scholarship either has treated federal administrative agencies as monolithic-that is, it has looked at the administrative state as a general problem-or has focused on individual agency procedures and policy choices. Historically, scholars have paid little attention to the relationships and interplay among agencies. Of late, however, scholars have begun to recognize that interagency coordination is an important feature of the modern administrative state. They have begun to consider the origins, purposes, problems, and possibilities of fragmented and overlapping delegations. In addition to the Rossi and Freeman article.
311. Eric Biber, Too Many Things to Do: How to Deal with the Dysfunctions of Multiple-Goal Agencies, 33 Harv. Envtl. L. Rev. 1 (2009);
312. Keith Bradley, The Design of Agency Interactions, 111 Colum. L. Rev. 745 (2011)
313. Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 Sup. Ct. Rev. 201;
314. Jason Marisam, Duplicative Delegations, 63 Admin. L. Rev. 181 (2011).
315. See Freeman & Rossi, supra note 6, at 1184-1187 (discussing the impact of interagency coordination on decision quality and agency capture); Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L. Rev. 15, 55-56 (2010) (discussing the impact of shared agency enforcement responsibilities).
316. Freeman & Rossi, supra note 6, at 1175 (discussing the presidential memoranda directing the EPA, Departments of Energy and Interior, and other agencies to work together on problems related to carbon).
317. While much of Freeman and Rossi's focus is on coordination among agencies to facilitate rulemaking and policy generation, they also discuss the use of memoranda of understanding to facilitate implementation of regulatory regimes. See id. at 1161-63 (dis cussing the use of memoranda of understanding to delineate jurisdictional lines for enforcement purposes, establish procedures for information sharing, and synchronize oper ational missions); see also Barkow, supra note 228, at 56 (recommending a designated enforcer in circumstances of shared enforcement authority).
318. For a partial but lengthy list of the workplace law statutes, see Weil, supra note 42, at app. at 149 fig.1.
319. For a recent illuminating discussion of conflicting agency decisions, see Emily Hammond Meazell, Presidential Control, Expertise, and the Deference Dilemma, 61 Duke L.J. 1763 (2012), which examines a conflict between the Nuclear Regulatory Commission and the EPA over a permitting application and argues that fidelity-to-statute and reasoned- decisionmaking requirements, not presidential direction or expertise, should remain the centerpieces of judicial review.
320. Judson MacLaury, Department of Labor, in A Historical Guide to the U.S. Government, supra note 75, at 353; see also Cong. Research Serv., History of the Immigration and Naturalization Service (1980).
321. The transfer of immigration functions followed complaints from members in Congress that the Department of Labor was granting too many waivers to individuals facing deportation and was too sympathetic to non-citizen Communist labor leaders. See Mae M. Ngai, The Strange Career of the Illegal Alien: Immigration Restriction and Deportation Policy in the United States, 1921-1965, 21 Law & Hist. Rev. 69, 102 (2003) (describing congressional opposition to the DOL's use of waivers); Note
322. Peter Irons, Politics and Principle: An Assessment of the Roosevelt Record on Civil Rights and Liberties, 59 Wash. L. Rev. 693, 712 (1984) (explaining that Congress transferred immigration functions to the DOJ and sought to impeach Labor Secretary Frances Perkins, in part because of her refusal to deport a Communist union leader).
323. Annette Bernhardt et al., Nat'l Emp't Law Project, Broken Law s, Unprotected Workers: Violations of Employment and Labor Law s in America's Cities 42-48 (2009), available at http://www.nelp.org/page//brokenlaws/BrokenLawsReport2009.pdf (collecting data demonstrating that minimum wage violations, in particular, are higher among immigrant workers).
324. For this view, see, for example, Rebecca Smith, Ana Avendaño & Julie Martinez Ortega, Nat'l Emp't Law Project, Iced Out: How Immigration Enforcement Has Interfered with Workers' Rights (2009), available at http://www.nelp.org/page/-/Justice/ICED_OUT.pdf.
325. Jennifer Gordon, Tensions in Rhetoric and Reality at the Intersection of Work and Immigration, 2 U.C. Irvine L. Rev. 125, 128-45 (2012).
326. Hoffman Plastic Compounds, Inc., 326 N.L.R.B. 1060, 1060 (1998) (second supp. decision), rev'd, 535 U.S. 137 (2002).
327. Hoffman Plastic Compounds, 535 U.S. at 149.
328. The National Labor Relations Board (NLRB) recently held that, after Hoffman, the remedy of back pay is not available to any undocumented worker, even those who did not use false documents to obtain employment. Mezonos Maven Bakery, Inc., 357 N.L.R.B. No. 47, at *4 (Aug. 9, 2011) (supp. decision).
329. Hoffman Plastic Compounds, 535 U.S. at 153 (Breyer, J., dissenting) (emphases omitted).
330. Transcript of Oral Argument at 27-28, Hoffman Plastic Compounds, 535 U.S. 137 (No. 00-1595).
331. See Freeman & Rossi, supra note 6, at 1134-36 (describing the problem of agency overlap, and arguing that encouraging coordination among agencies is the best way to manage the complex system).
332. 343 U.S. 579, 702 (1952) (Vinson, C.J., dissenting) (internal quotation marks omitted).
333. Comm'n on Law & the Econ., Am. Bar Ass'n, Federal Regulation: Roads to Reform 163 (1979) (separate statement of Hon. Henry J. Friendly, concurring in part with the Commission's recommendations), cited in Peter L. Strauss & Cass R. Sunstein, The Role of the President and OMB in Informal Rulemaking, 38 Admin. L. Rev. 181, 189-90 (1986).
334. See Moe & Howell, supra note 180, at 856-57, 861 (using spatial models to demon strate the relative power of Congress and the President, and explaining practical reasons for the power differential).
335. Daniel J. Meltzer, The Supreme Court's Judicial Passivity, 2002 Sup. Ct. Rev. 343, 383-87 (discussing the limits of congressional foresight given the American system of lawmaking, particularly the lack of executive control of the legislature).
336. Moe & Howell, supra note 180, at 861.
337. Memorandum of Understanding Between OSHA and the FDA, Sharing Health and Safety Information Related to Facilities Where Food Is Produced, Processed, or Held (June 20, 2011), available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=MOU&p_id=1005.
338. The extent of White House involvement in this agreement is unclear from the text. However, the White House's subsequent decision to tout the FDA's response to the salmonella outbreak on its website suggests the MOU was, at the least, brought about with oversight and involvement from the White House. See Margaret Hamburg, Comm'r, FDA, What You Need to Know About the Egg Recall, White House Blog (Aug. 26, 2010), http://www.whitehouse.gov/blog/2010/08/26/what-you-need-know-about-egg-recall.
339. Memorandum of Understanding Between the USDA and the FDA Concerning Information Sharing Related to Food Safety, Public Health, and Other Food-Associated Activities (Jan. 19, 2012) available at http://www.fsis.usda.gov/PDF/USDA_FDA_Info_Sharing_MOU.pdf; see also id. app. B at 9 (describing additional memoranda of understanding that are amended or superseded by this Memorandum). These agencies, along with others, had been brought together by the White House to focus on problems of food safety, including egg safety.
340. The White House, The Federal Food Safety Working Group Progress Report (Dec. 2011), available at http://www.whitehouse.gov/sites/default/files/fswg_report_final.pdf (describing the progress of the White House working group, including on egg safety).
341. Memorandum of Understanding Between the IRS and the DOL (Sept. 19, 2011), available at http://www.dol.gov/whd/workers/MOU/irs.pdf. According to the DOL's Press Release, the Memorandum will enable the DOL to share information and coordinate law enforcement with the IRS "in order to level the playing field for law-abiding employers and ensure that employees receive the protections to which they are entitled under federal and state law." Press Release, Labor Secretary, Dep't of Labor, IRS Commissioner Sign Memorandum of Understanding to Improve Agencies' Coordination on Employee Misclassification Compliance and Education (Sept. 19, 2011), available at http://www.dol.gov/opa/media/press/whd/WHD20111373.htm. Notably, the Memorandum was framed as a White House initiative: "These memorandums of understanding arose as part of the department's Misclassification Initiative, which was launched under the auspices of Vice President Biden's Middle Class Task Force with the goal of preventing, detecting and rem edying employee misclassification." Id.
342. Bernhardt et al., supra note 241, at 2 (finding that workplace violations are severe and widespread in the low-wage labor market); Note
343. Jennifer S. Brand, Nat'l State Att'ys Gen. Program at Columbia Law Sch., Adding Labor to the Docket: The Role of State Attorneys General in the Enforcement of Labor Law 7 n.9 (2007), available at http://www.law.columbia.edu/null?&exclusive=filemgr.download&file_id=1399&rtcontentdisposition=filename%3DBrand_Labor%20Article.pdf (collecting studies demonstrating persistent violations of labor laws in industries that employ low-wage workers).
344. Cynthia Estlund, Rebuilding the Law of the Workplace in an Era of Self-Regulation, 105 Colum. L. Rev. 319, 330 & n.39 (2005) (citing OSHA Inspection Cycle Equals 107 Years, Because of Low Resources, AFL-CIO Reports, 81 Daily Lab. Rep. (BNA), Apr. 26, 2000, at A-7, available at 2000 WL 503696).
345. U.S. Gov't Accountability Office, supra note 137, at 18.
346. Thomas O. McGarity & Sidney A. Shapiro, Workers at Risk 212-213 (1993) (discussing incentives of employers that make noncompliance likely); Estlund, supra note 264, at 330 & nn.36-40 (describing causes of enforcement failures).
347. David Barstow & Lowell Bergman, With Little Fanfare, a New Effort to Prosecute Employers That Flout Safety Laws, N.Y. Times, May 2, 2005, at A17.
348. Id. The effort sought to marshal a range of existing laws that carry considerably stiffer penalties than workplace safety statutes, including environmental laws, criminal racketeering laws, and some provisions of Sarbanes-Oxley to target notorious health and safety violators. Inspectors and attorneys from OSHA would be trained by DOJ officials to spot criminal violations and to refer cases for enforcement. Id.
349. Maureen Tracey-Mooney, Honoring 29 Miners, White House Blog (Apr. 5, 2011, 6:06 AM), http://www.whitehouse.gov/blog/2011/04/05/honoring-29-miners.
350. Revised Memorandum of Understanding Between the DHS and the DOL Concerning Enforcement Activities at Worksites (Dec. 7, 2011) [hereinafter DHS-DOL Worksite Enforcement MOU], available at www.dol.gov/asp/media/reports/DHS-DOL -MOU.pdf (limiting the worksite enforcement power of DHS's Immigration and Customs Enforcement (ICE) agency when a DOL investigation is pending).
351. Cf. Kagan, supra note 2, at 2344-45 (describing administrative ossification and presidential responses).
352. Paul R. Verkuil, Comment, Rulemaking Ossification-A Modest Proposal, 47 Admin. L. Rev. 453, 453 (1995) ("Virtually everyone agrees that the process of promul gating... rules is too time[-]consuming, burdensome, and unpredictable.").
353. Recent empirical scholarship draws into question some of these conclusions.
354. Jason Webb Yackee & Susan Webb Yackee, Administrative Procedures and Bureaucratic Performance: Is Federal Rulemaking "Ossified"?, 20 J. Pub. Admin. Res. & Theory 261 (2009) (presenting an empirical study showing that ossification has not occurred to the extent assumed).
355. See, e.g., supra notes 197-203 and accompanying text (explaining that the President's enforcement power depends upon affecting the behavior of subordinates within the Executive Branch, and using as examples the Obama Administration's experiences in responding to state medical marijuana initiatives and with the DREAM Act).
356. See supra notes 33-43 and accompanying text (describing the procedural require ments agencies must satisfy to change their enforcement policies, and explaining the advantages of a flexible process for agencies).
357. Empirical and descriptive research by political scientists demonstrates that presi dents increasingly have relied on the bully pulpit and have used it to build presidential legitimacy and institutional power. See, e.g., George C. Edwards III, The Public Presidency 38-103 (1983) (examining presidential efforts to shape public opinion); Colleen J. Shogan, The Moral Rhetoric of American Presidents (2006) (exam ining how presidents have used moral and religious rhetoric as a leadership tool); Jeffrey K. Tulis, The Rhetorical Presidency 4 (1987) (arguing that "[s]ince the presidencies of Theodore Roosevelt and Woodrow Wilson, popular or mass rhetoric has become a prin cipal tool of presidential governance" and that an essential task of the President is now to serve as a leader of public opinion). Notably, however, the rise of the Internet, decline of the broadcast network monopoly, increase in polarization of the news media, and other developments have made it harder for the President to ensure an audience for his views. See Jeffrey E. Cohen, Presidential Leadership in an Age of New Media, in Presidential Leadership: The Vortex of Power, supra note 118, at 171-72 (explaining how the changing media landscape reduces the President's ability to lead public opinion); George C. Edwards III, Impediments to Presidential Leadership: The Limitations of the Permanent Campaign and Going Public Strategies, in Presidential Leadership: The Vortex of Power, supra note 118, at 145, 164-65 (asserting that the options offered by cable televi sion, the reluctance of networks to give the President airtime, and polarized public opinion hinders the President's ability to communicate to the public).
358. See Pildes, supra note 1, at 1404 n.69 (laying out these competing visions).
359. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897) (arguing that the law should be understood from the perspective of the bad man who cares only for the material consequences of his actions).
360. See H.L.A. Hart, The Concept of Law (2d. ed. 1994) (arguing that law is exper ienced as normatively binding); see also Henry Paul Monaghan, Supremacy Clause Textualism, 110 Colum. L. Rev. 731, 791 (2010) (arguing that "law is what officials accept and apply as law").
361. See Pildes, supra note 1, at 1411 (asserting that "public judgment is constantly refracted through judgments about whether various actors, including the President, are acting lawfully"); Note
362. Trevor W. Morrison, Libya, "Hostilities," the Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation, 124 Harv. L. Rev. Forum 62, 64 (2011) (arguing that "signaling and maintaining a willingness to treat OLC's legal advice as presumptively binding enhances the credibility of a president's claims of good faith and respect for the law, which in turn can help generate public support for his actions").
363. See Kagan, supra note 2, at 2337 ("It is when presidential control of administrative action is most visible that it most will reflect presidential reliance on and responsiveness to broad public sentiment."). Nonarbitrariness is another paramount value in administration, though not one always served by a presidential control model.
364. Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. Rev. 461 (2003) (arguing for more direct focus on the concern for arbitrariness in administration). In thinking about the design and limits of presidential enforcement, con cerns about arbitrariness must be addressed. For some initial thoughts on this issue, see infra Parts III.C & IV.B.
365. Alexander M. Bickel, The Least Dangerous Branch 16-17 (1962) (discussing the countermajoritarian difficulty of judicial review).
366. See Kagan, supra note 2, at 2253-55, 2260-61, 2264-65 (discussing how "transmission belt," "expertise," and "interest group" models of administration claim to address the accountability problem).
367. For examples of scholarship advancing the connection between presidential adminis tration and accountability, see Kagan, supra note 2, at 2331-38; Note
368. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 105-106 (1994);
369. Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. 23, 35-36, 45, 59 (1995).
370. Evan J. Criddle, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking, 88 Tex. L. Rev. 441, 465-502 (2010), which advances an alternative "fidu ciary representation" model to promote accountability;
371. Heidi Kitrosser, The Accountable Executive, 93 Minn. L. Rev. 1741 (2009),
372. Which argues that a strong unitary executive undermines accountability; Edward Rubin, The Myth of Accountability and the Anti- Administrative Impulse, 103 Mich. L. Rev. 2073, 2076-83 (2005), which argues that accountability is furthered not by occasional elections but by the complex chains of authority and expertise that characterize bureaucracy; and Peter M. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 Geo. Wash. L. Rev. 596, 613-14 (1989), which questions whether political accountability is furthered by cen tralizing discretionary decisionmaking in the presidency, where less dialogue and trans parency exists.
373. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3155 (2010) (citations omitted) (quoting U.S. Const. art. II, § 2, cl. 2.; The Federalist No. 72, at 487 (Alexander Hamilton) (J. E. Cooke ed., 1961); The Federalist No. 70, supra, at 476 (Alexander Hamilton)); see also INS v. Chadha, 462 U.S. 919, 948 (1983) (emphasizing the President's unique role as national representative).
374. 467 U.S. 837, 865 (1984); see also Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749, 1764 (2007) (noting that Chevron is the "most prominent example" of how administrative law reflects the presidential control model).
375. Kagan, supra note 2, at 2331-32.
376. Mashaw, supra note 46, at 95.
377. Richard E. Neustadt, Presidential Power and the Modern Presidents 77-78 (2d ed. 1990) (describing the importance of the President's public prestige to his political power).
378. James P. Pfiffner, The Modern Presidency 40-50 (1994).
379. See Mashaw, supra note 46, at 95-96 (arguing for broad delegations since the President is more accountable than the Congress).
380. See supra notes 153-57 and accompanying text (discussing the presidential response to those disasters).
381. See supra Part II.A (tracing the history of presidential control over the administra tive state).
382. See Kagan, supra note 2, at 2337 (discussing how opacity increases the potential for factional influence).
383. See supra note 277 and accompanying text (discussing the DHS-DOL MOU).
384. One can surmise some level of White House influence for at least three reasons. First, the MOU was first released during a rollout over several months of presidential and Cabinet-level immigration events in the spring of 2011.
385. Melody Barnes, Immigration & Winning the Future, White House Blog (Jan. 27, 2011, 3:00 PM), http://www.whitehouse.gov/blog/2011/01/27/immigration-winning-future;
386. Melody Barnes, The President's Blueprint for Building a 21st Century Immigration System, White House Blog (May 10, 2011, 3:15 PM), http://www.whitehouse.gov/blog/2011/05/10/president-s-blueprint-building-21st-century-immigration-system.
387. Second, the MOU's policy choices are consis tent with those articulated by the White House to deemphasize worksite raids. See Andrew Becker, Immigration Policies Sparking Tensions with ICE; Obama Administration Stances on Detentions Face Internal Resistance, Wash. Post, Aug. 27, 2010, at B3 (describing the Obama Administration's position on worksite enforcement). Third, independent agencies, such as the NLRB or the Equal Employment Opportunity Commission, were conspicuously absent from the MOU, even though those agencies have similar stakes in the conflict; this may be because the White House, by tradition and some legal interpretation, exerts little influence over these entities. See DHS-DOL Worksite Enforcement MOU, supra note 277; Note
388. Kirti Datla & Richard Revesz, Deconstructing Independent Agencies, Cornell L. Rev. (forthcoming 2013), at 5, 19, 21, 22, 25, 29, 31, 35, 39 & nn. 68, 90, 106, 116, 118, 136, 147-48, 192-93 (developing a taxonomy of agencies and identifying various indicia of independence of agencies, including the NLRB and EEOC); supra note 24 (discussing differences in the way that the President treats independent agencies).
389. See Criddle, supra note 290, at 461-62 (collecting literature demonstrating that most administrative action flies under the public's radar).
390. See id. at 462 (noting that "the electorate has few effective tools to hold presidents accountable" once they are elected).
391. Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 Chi.-Kent L. Rev. 987, 992-1007 (arguing that accounta bility justifications for strong presidential power are premised on false understandings of the popular will);
392. Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725, 1821-25 (1996) (asserting that political accountability justifications for broad presidential authority rest on an unduly simple understanding of accountability);
393. Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 Mich. L. Rev. 53, 55 (2008) (arguing that "a moderate degree of bureaucratic insulation alleviates rather than exacer bates the countermajoritarian problems inherent in bureaucratic policymaking").
394. See, e.g., Criddle, supra note 290, at 465-502 (proposing an alternative model that relies on fiduciary representation of the public by agency heads). For a discussion of the larger structural factors pressing toward presidential control, see supra notes 177-84.
395. Richard J. Pierce Presidential Control Is Better than the Alternatives, 88 Tex. L. Rev. 113 (2009) (critiquing Criddle).
396. See Pierce, supra note 308, at 114-15 ("There is no reason to believe that a President who cannot be trusted to act in accordance with public preferences would appoint officers who can be trusted to do so."); see also Kagan, supra note 2, at 2336 ("Take the President out of the equation and what remains are individuals and entities with a far more tenuous connection to national majoritarian preferences and interests....").
397. Jerry L. Mashaw, Structuring a "Dense Complexity": Accountability and the Project of Administrative Law, Issues in Legal Scholarship, Mar. 2005, at 35 ("The challenge is to design administrative institutions that creatively deploy multiple modalities of accountability for the pursuit of complex public purposes.").
398. Critics have made this charge of centralized regulatory review. See, e.g., Bressman & Vandenbergh, supra note 13, at 97 (providing examples of OIRA questioning scientific determinations of EPA officials).
399. For example, many believe that the Federal Reserve's mission-regulating the monetary system-is a technical judgment that should be shielded from politics.
400. Lisa Schultz Bressman & Robert B. Thompson, The Future of Agency Independence, 63 Vand. L. Rev. 599, 616 (2010) (tracing the history of the Federal Reserve as an example of the struggle to strike a balance between political control and the independence of experts in agencies);
401. Jacob E. Gersen, Designing Agencies, in Research Handbook on Public Choice and Public Law 333, 348 (Daniel A. Farber & Anne Joseph O'Connell eds., 2010) (noting that the need for long-term stability explains central bank independence in the United States and elsewhere).
402. Even independent agencies insulated from presidential pressure through removal restrictions, however, are accountable to the political branches in other ways, such as via nominations and appropriations. See Note, Independence, Congressional Weakness, and the Importance of Appointment: The Impact of Combining Budgetary Autonomy with Removal Protection, 125 Harv. L. Rev. 1822, 1827-29, 1839 (2012) (explaining mechanisms of presidential control over independent agencies).
403. The latter restrictions are, in fact, largely inevitable. The President and his immediate staff could never be involved in all or even many enforcement actions because they lack both expertise and time. See Bressman, supra note 287, at 511-12 (emphasizing limits on presidential time).
404. Thomas W. Merrill, The Accardi Principle, 74 Geo. Wash. L. Rev. 569, 570 (2006) ("The modern administrative state continually struggles to strike the right balance between rule of law values-binding officials to clear rules known in advance-and the need for flexibility-allowing officials to exercise informed discretion in individual cases.")
405. Sidney A. Shapiro & Ronald F. Wright, The Future of the Administrative Presidency: Turning Administrative Law Inside-Out, 65 U. Miami L. Rev. 577, 613 (2011) (noting that while OIRA-induced delay has decreased since the Reagan Administration, it is still a source of ossification).
406. Freeman & Rossi, supra note 6, at 1182.
407. See id. (arguing that these benefits outweigh the upfront investment costs of coordination).
408. See infra notes 334-36 and accompanying text (discussing the importance of confi dentiality in deliberations and the need for exceptions to the default rule of policy disclosure).
409. 470 U.S. 821, 832-33 (1985) (holding that agency decisions not to act are presump tively unreviewable, but that agencies are not free to disregard their statutory mandates).
410. For example, attorneys commonly advise their clients as to how to minimize risks of enforcement actions. Less commonly, corporate entities pay for intelligence about agency behavior. E.g., Brody Mullins & Susan Pulliam, Buying "Political Intelligence" Can Pay Off Big for Wall Street, Wall St. J., Jan. 18, 2013, at A1.
411. See Freeman & Rossi, supra note 6, at 1187 (citing Pablo T. Spiller & John Ferejohn, The Economics and Politics of Administrative Law and Procedures: An Introduction, 8 J.L. Econ. & Org. 1, 6-7 (1992)) (explaining the risk that an agency might deviate from the interests of the coalition that created the agency).
412. Similar arguments apply to the issue of agency arbitrage, which refers to the possi bility that regulated entities will seek to take advantage of situations of shared or overlap ping authority to get the best deal possible or play agencies against one another to push standards down. Freeman & Rossi, supra note 6, at 1185 & n.264 (citing Victor Fleisher, Regulatory Arbitrage, 89 Tex. L. Rev. 227 (2010)).
413. Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1685 (1975).
414. Matthew D. Zinn, Policing Environmental Regulatory Enforcement: Coopera tion, Capture, and Citizen Suits, 21 Stan. Envtl. L.J. 81, 126-31 (2002) (describing this dynamic in the context of environmental regulation).
415. Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 Harv. L. Rev. 1075, 1081 (1986) (arguing that presidents and legislatures are less vulnerable to capture than agencies).
416. Michael A. Livermore & Richard L. Revesz, Regulatory Review, Capture, and Agency Inaction, 101 Geo. L.J. (forthcoming 2013) (manuscript at 3), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1986928.
417. See id. at 3, 30 (arguing that diffuse incentives create collective action problems for regulated entities attempting to capture OIRA); see also Freeman & Rossi, supra note 6, at 1185-87 (describing how agency coordination can increase the costs of capture).
418. See Livermore & Revesz, supra note 325, at 30 (stating that OIRA review often involves different actors for review of each rule).
419. Critics of presidential control of rulemaking have argued that it contributes to inap propriate political influence. E.g., Criddle, supra note 290, at 464; see also Strauss, supra note 50, at 664-65 (describing how political advisors to the President may influence agency decisions away from broad national interests).
420. Matthew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. Econ. & Org. 243, 247 (1987) (describing the risks that agency officials might ally with interest groups to pursue their own agendas or be captured by those they are obligated to regulate).
421. Indeed, critics of centralized regulatory review have charged that such review has been more solicitous of industry than has review by individual agencies. See, e.g., Bressman & Vandenbergh, supra note 13, at 49-51 (discussing a survey that showed that former EPA officials believed that White House officials favored business groups); Morrison, supra note 117, at 1067-68 (describing the opacity of and the potential for industry influence over OMB); cf. Sidney A. Shapiro, Political Oversight and the Deterioration of Regulatory Policy, 46 Admin. L. Rev. 1, 27 (1994) (describing the potential for presidential oversight to serve as a conduit for industry influence over an agency). Others provide mixed reviews on cost-benefit analysis. See, e.g., Cass R. Sunstein, The Cost-Benefit State (2002) (defending, with caveats, the use of cost-benefit analysis); Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. Chi. L. Rev. 821, 882-83 (2003) (providing a qualified defense of the use of cost-benefit analysis).
422. David B. Spence, Administrative Law and Agency Policy-Making: Rethinking the Positive Theory of Political Control, 14 Yale J. on Reg. 407, 440 (1997) ("High salience issues on which the public has an identifiable preferred alternative are likely to produce congruence between the general public's preferences and those of their elected representatives....")
423. On what constitutes a salient issue, see, for example, Christopher Wlezien, On the Salience of Political Issues: The Problem with 'Most Important Problem,' 24 Electoral Stud. 555 (2005) (describing political science literature on "salience" but showing the difficulty of determining the salience of issues in practice).
424. Others have written about how these controls operate and how they might be strengthened. See, e.g., Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2317 (2006) (arguing that a "critical mechanism to promote internal separation of powers is bureaucracy," and offering ways to strengthen this mechanism); Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448, 1492-94 (2010) (analyzing how the Office of Legal Counsel should balance executive branch precedent and presidential preferences).
425. This prescription is consistent with the Supreme Court's recent decision in FCC v. Fox Television Stations, 132 S. Ct. 2307, 2317-18 (2012), which held that a change in FCC enforcement policy violated the Due Process Clause because it did not give the regulated parties fair notice. Numerous scholars have raised concerns about the lack of transparency in presidential administration. See, e.g., Kitrosser, supra note 290, at 1774 (arguing that a unitary executive approach undermines accountability by increasing the President's ability to control information and "make or implement policy behind closed doors"); see also Bressman & Vandenbergh, supra note 13, at 91-99 (suggesting steps, including greater transparency, for improving White House involvement in agency decisionmaking and better advancing accountability, efficiency, and rule-of-law values); Nina A. Mendelson, Disclosing "Political" Oversight of Agency Decision Making, 108 Mich. L. Rev. 1127, 1163-66 (2010) (arguing that agencies should be required to summarize executive influence on significant rulemaking decisions).
426. United States v. Nixon, 418 U.S. 683, 708 (1974).
427. Morrison, supra note 333, at 1520 (arguing that the President should have the power to abrogate Office of Legal Counsel precedent, but that the decision to do so should be publicly disclosed).
428. supra Part II.A (describing how presidents have, in an often ad hoc and opaque manner, influenced enforcement policy).
429. See Kagan, supra note 2, at 2333 (arguing for more visible White House control of agency action).
430. Pub. L. No. 111-352, 124 Stat. 3866 (codified in scattered sections of 5 U.S.C. and 31 U.S.C.).
431. See Freeman & Rossi, supra note 6, at 1193 (discussing Pub. L. No. 111-352, 124 Stat. 3866).
432. See id. at 1193 (suggesting that the task of facilitating greater agency coordination could be assigned to OIRA). Alternatively, responsibility for coordinating enforcement could lie within the Domestic Policy Council, a newly constituted White House council, or even within the DOJ. The first two options would enhance political control, while the third would likely diminish it.
433. Bressman & Vandenbergh, supra note 13, at 49.
434. Cf. Moe, supra note 21, at 367-68 (explaining how administration officials are likely to be more politically and ideologically aligned with the President and how that alignment minimizes the principal-agent problem within the White House).
435. See Sabel & Simon, supra note 14, at 55-56 (noting that certain Obama Administration initiatives embody experimentalism); see also supra notes 171-74 and accompanying text (describing Obama initiatives); Edward Rubin, Can the Obama Administration Renew American Regulatory Policy?, 65 U. Miami L. Rev. 357, 389-92 (2011) (suggesting ways the Obama Administration could use "new governance" models to address the financial crisis).
436. Sabel & Simon, supra note 14, at 55.
437. Presidential Memorandum on Regulatory Compliance, 76 Fed. Reg. 3825, 3825-26 (Jan. 18, 2011).
438. Freeman & Rossi, supra note 6, at 1193-96; see also Admin. Conference of the United States, Improving Coordination of Related Agency Responsibilities (2012). New York City has developed a successful data program to address problems of regulatory compliance, which could serve as a model. See Alan Feuer, The Mayor's Geek Squad, N.Y. Times, Mar. 23, 2013, at MB1 (describing "big data" program).
439. Indeed, "[n]o President has used directives on any more than a selective basis as to executive-branch agencies. The White House has picked its battles, acting only when an issue is particularly salient." Bressman & Thompson, supra note 312, at 646.
440. There is a lengthy debate in the literature about the way federal agencies issue inter pretive rules and statements of policy, and the way courts react to such documents. See Mark Seidenfeld, Substituting Substantive for Procedural Review of Guidance Documents, 90 Tex. L. Rev. 331, 332-33 (2011) (reviewing the literature); see also Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 Cornell L. Rev. 397, 434 (focusing on the hardships that use of guidance documents can cause to regulatory beneficiaries and arguing that stakeholders should be able to petition for amendment or repeal of a guidance document). The Administrative Conference of the United States (ACUS) and the American Bar Association (ABA) have both long urged greater use of informal notice and comment for significant guidance documents and greater disclosure. See, e.g., Am. Bar Ass'n, Annual Report Including Proceedings of the Fifty-Eighth Annual Meeting 57 (1993) (recommending that "[b]efore an agency adopts a nonlegislative rule that is likely to have a significant impact on the public, the agency provide an opportunity for members of the public to comment on the proposed rule and to recommend alternative policies or interpretations, provided that it is practical to do so; when nonlegislative rules are adopted without prior public participation, immediately following adoption, the agency afford the public an opportunity for post-adoption comment and give notice of this opportunity"); see also Paul R. Noe & John D. Graham, Due Process and Management for Guidance Documents: Good Governance Long Overdue, 25 Yale J. on Reg. 103, 105-06 (detailing the positions of the ABA and ACUS). Only a few scholars have examined the effect of the Bush Administration's decision to subject these documents to review. See Noe & Graham, supra, at 103-04 (arguing in support of OMB review of policy documents); Connor N. Raso, Note, Strategic or Sincere? Analyzing Agency Use of Guidance Documents, 119 Yale L.J. 782, 787 (2010) (finding that agencies do not frequently abuse guidance documents to avoid issuing significant legislative rules). Greater study of the experience under the Bush Executive Order is warranted.
441. See Noe & Graham, supra note 349, at 103 n.2 (collecting public-opinion pieces opposing the Bush Executive Order).
442. Ackerman, supra note 2 (arguing that increased presidential power is a cause for concern); see also Aaron J. Saiger, Obama's "Czars" for Domestic Policy and the Law of the White House Staff, 79 Fordham L. Rev. 2577, 2583 (2011) (arguing that the use of White House "czars" shifts more power to the President and decreases transparency).
443. Just as institutionalized presidential enforcement would not necessarily provide the President more directive power over agency heads, it also would not need to increase the President's ability to monopolize the enforcement of federal law vis-a'-vis states or private actors. Cf. Roderick M. Hills, Jr., Arizona v. United States: The Unitary Executive's Enforcement Discretion as a Limit on Federalism, in Cato Supreme Court Review: 2011-2012, at 189, 190 (Ilya Shapiro ed., 2012), available at http://www.cato.org/sites/cato.org/files/serials/files/supreme-court-review/2012/9/scr-2012-hills.pdf (arguing that Arizona v. United States seems to vindicate such an extraordinary presidential prerogative and thereby obstruct the faithful execution of federal law).
444. The debate has been running throughout our history, not just among academics, but among those in government. See Lessig & Sunstein, supra note 290, at 5 & n.7 (collecting sources).
445. Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541, 594-96 (1994) (arguing that the Constitution grants executive power to the President alone; that the President therefore has the power to act in place of agency officials, to nullify their actions, and to remove agency officials; and that Congress is given no power to create subordinate entities that exercise executive power).
446. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1166 (1992).
447. Calabresi & Prakash, supra note 355.
448. Steven G. Calabresi & Nicholas Terrell, The Fatally Flawed Theory of the Unbundled Executive, 93 Minn. L. Rev. 1696 (2009) (making normative case for the uni tary executive).
449. See Kagan, supra note 2, at 2251 (arguing that the President is presumed to have direct authority over agencies); Lessig & Sunstein, supra note 290, at 2, 4 (arguing that Congress has broad power to structure the Executive Branch, but also embracing the theory of a strong unitary executive).
450. Lessig & Sunstein, supra note 290, at 4.
451. See Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 123, 123-24 (1994) (noting that the Framers rejected concentration of law- executing and lawmaking governmental power in the Executive); Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 Duke L.J. 963, 966 (2001) (arguing that the President lacks the authority to dictate sub stantive decisions entrusted to agencies by law); Strauss, supra note 50, at 579, 581 (arguing that even though the President has authority to control agencies to a degree, those agen cies are also beholden to Congress and the courts); cf. Kevin M. Stack, The President's Statutory Powers to Administer the Laws, 106 Colum. L. Rev. 263 (2006) (arguing that the President has authority to direct the administration of the law only under statutes that expressly confer it on him).
452. Percival, supra note 361, at 966.
453. Cf. Criddle, supra note 290, at 448 (arguing for replacing presidential administration with "fiduciary" administration).
454. See supra notes 151-65 and accompanying text (describing President Obama's impact on enforcement). Recent opinions from the Supreme Court and the D.C. Circuit gesture favorably toward a stronger unitary executive view. E.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3147 (2010) (relying on a theory of presi dential accountability to strike down a provision limiting the President's removal authority); In re Aiken Cnty., 645 F.3d 428, 442-44 (D.C. Cir. 2011) (Kavanaugh, J., con curring) (questioning the wisdom and correctness of Humphrey's Executor, and noting that "the Free Enterprise Court repeatedly emphasized the central role of the President under Article II and the importance of that role to a government that remains accountable to the people").
455. Cary Coglianese, Presidential Control of Administrative Agencies: A Debate over Law or Politics?, 12 U. Pa. J. Const. L. 637, 645-46 (2010) (arguing that the two theories are indistinguishable from each other in practice).
456. Id. at 646 (internal quotation marks omitted). Coglianese suggests that this is "the strongest possible control over an agency." Id. But of course, initial agreement on policy goals and initial promises of loyalty do not always translate into consistent agreement or loyalty over time.
457. Independent agencies are, of course, situated differently: The threat of removal is substantially weakened. See Bressman & Thompson, supra note 312, at 600-01 (arguing that despite weakened removal powers, the President still exerts influence over these agencies).
458. See Coglianese, supra note 365, at 648 (arguing that this limitation renders the dis tinction between oversight and control slight); see also id. at 638 ("Rather than offering a legal constraint, those who argue that the Constitution creates such a line over the exercise of presidential power seem to offer little more than another rhetorical arrow to be flung by political partisans when it suits their purposes."). Strauss, of course, is fully aware of these points. He acknowledges that the distinction between presidential influence and control is "subtle"; for him, the difference is in the mentality with which advice is given and received. Strauss, supra note 15, at 704.
459. Of course, these internal officials can decline to approve formal directives. See Morrison, supra note 333, at 1460 (noting the role of the Office of Legal Counsel (OLC) in reviewing the legality of executive orders).
460. Compare Posner & Vermeule, supra note 1, at 4 (arguing that constraints on the Executive arise primarily from politics, not from law), with Pildes, supra note 1, at 1424 (recognizing that the relationship between presidential power and law is complex, and concluding that the complex relationship between law and politics ultimately functions to constrain the executive).
461. For example, what do we mean by "law"? What does it mean to constrain? For schol arship examining these difficult questions, see, for example, Richard H. Fallon, Jr., Constitutional Constraints, 97 Calif. L. Rev. 975, 1024-34 (2009) (examining how the Constitution constrains nonjudicial officials); and Frederick Schauer, When and How (If at All) Does Law Constrain Official Action?, 44 Ga. L. Rev. 769, 770 (2010) (positing that "officials who are in theory subject to the law may consider themselves less so than is commonly believed"). See also sources cited supra note 370 (discussing the various ways in which law and politics constrain the Executive).
462. The empirical challenge is particularly acute with respect to the President, whose deliberation is rarely disclosed.
463. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992).
464. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1238 n.45 (1994); see also M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 Va. L. Rev. 1127, 1155-82 (2000) (arguing that the Constitution embraces competing traditions of separation and balancing of powers).
465. Mansfield, supra note 53, at 2.
466. See 343 U.S. 579, 587 (1952) ("In the framework of our constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.").
467. Id. at 708-09 (Vinson, C.J., dissenting).
468. See Cheh, supra note 4, at 288 (arguing that the President is "required to follow congressional commands").
469. See, e.g., Ackerman, supra note 2, at 143, 146 (proposing various reforms aimed at reducing presidential power).
470. Cf. Mashaw, supra note 310, at 4 ("[P]residentialism does not exclude, or even sup press, the demand for conformity to legislation.").
471. Sunstein, supra note 37, at 670; see also Goldsmith & Manning, supra note 4, at 2295 (noting that the President's completion power is defeasible by congressional command).
472. 37 U.S. (12 Pet.) 524, 613 (1838).
473. See Sunstein, supra note 37, at 677-78 (contending that agency discretion is limited because inaction may not be based on statutorily irrelevant factors).
474. See Adams v. Richardson, 480 F.2d 1159, 1163-66 (D.C. Cir. 1973) (holding that enforcement of Title VI is mandatory).
475. See Eugene Gressman, Observation, Take Care, Mr. President, 64 N.C. L. Rev. 381, 382-83 (1986) (arguing that the power to execute does not include the power to ignore or disobey). Nonenforcement of criminal law and the problem of desuetude raise different questions, which are beyond the scope of this Article. For a discussion, see, for example, William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 591-94, 597-98 (2001).
476. This basic principle is illustrated as well by the Nixon impoundment controversy. See supra note 109 (discussing the controversy).
477. Monaghan, supra note 11, at 39; see also William Howard Taft, Our Chief Magistrate and His Powers 78-79 (1916) ("Statutory construction is practically one of the greatest of executive powers," particularly in cases that do not "affect[] private right[s],... [which are] likely to come before the courts."); Goldsmith & Manning, supra note 4, at 2302 ("Presidents have long exercised, and courts have long recognized, some version of a presidential authority to prescribe incidental details of implementation neces sary to complete an unfinished statutory scheme.").
478. The Federalist No. 72, supra note 291, at 403; see also Monaghan, supra note 11, at 39 (describing Hamilton's views on the executive).
479. Thomas Jefferson, Letter to Governor Cabell, Aug. 11, 1807, in 9 The Writings of Thomas Jefferson 318, 320 (Albert Ellery Bergh ed., 1907).
480. The Court continues to insist that lawmaking authority cannot be delegated. Whitman v. American Trucking Ass'n, 531 U.S. 457, 472 (2001) ("Article I, § 1, of the Constitution vests '[a]ll legislative Powers herein granted... in a Congress of the United States.' This text permits no delegation of those powers...."). However, the dominant reality is otherwise.
481. See supra note 17 and accompanying text (discussing this view); cf. Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 Va. L. Rev. 649, 702 (2000) (arguing that treaty interpretation deference is best understood as a form of Chevron deference); Kevin M. Stack, The Statutory President, 90 Iowa L. Rev. 539 (2005) (arguing that courts should apply Chevron deference to presidential actions taken under tutes).
482. See Heckler v. Chaney, 470 U.S. 821, 832 (1985) (holding that there should be a presumption that agency action is not reviewable).
483. See, e.g., Biber, supra note 37 (arguing for greater judicial review of agency inaction by drawing on examples from environmental law); Sunstein, supra note 37 (noting contro versy regarding Heckler and discussing reviewability of inaction).
484. Heckler, 470 U.S. at 842 (Marshall, J., concurring in judgment).
485. Id. at 833 (majority opinion).
486. Many have argued that the nondelegation doctrine is no doctrine at all, for the Supreme Court has struck down a federal statute on the ground that it delegated too much authority to the executive branch in only two cases. E.g., Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 323 (2000). However, the Court-at least historically- has seemed suspicious of the President as policymaker. See Kagan, supra note 2, at 2364-65 (positing that the doctrine "well might distrust presidential action"); Todd D. Rakoff, The Shape of the Law in the American Administrative State, 2 Tel Aviv U. Stud. L. 9, 22-23 (1992) (suggesting that the nondelegation doctrine has been invoked where power was delegated to the President). But see supra note 364 (noting recent case law embracing a stronger unitary executive).
487. 295 U.S. 495, 551 (1935) (Cardozo, J., concurring) (arguing for invalidation of a broad presidential power even if granted by Congress).
488. Id. at 436 (quoting 2 U.S.C. § 691(a) (Supp. II 1994), declared unconstitutional by Clinton v. City of New York, 524 U.S. 417).
489. Id. at 439-40; see also U.S. Const. art. I, § 7, cl. 2 (establishing the constitutional requirements of bicameralism and presentment).
490. Kagan, supra note 2, at 2366 (citing Clinton, 524 U.S. at 445-56). The dissenters disagreed. In their view, the Act passed both the formal and the functional test: It did not grant the President nonexecutive power, did not aggrandize Congress's power, and did not give the President too much power in violation of the nondelegation doctrine. See Clinton, 524 U.S. at 465-69 (Scalia, J., concurring in part and dissenting in part); id. at 480-84 (Breyer, J., dissenting).
491. See, e.g., Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 Admin. L. Rev. 501 (2005) (examining how agencies interpret statutes); Morrison, supra note 333 (describing and critiquing the role of the OLC).
492. See Abbe Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750, 1761-70 (2010) (providing overview of debates regarding methods of statutory interpretation).
493. See supra note 277 and accompanying text (discussing the MOU).
494. DHS-DOL Worksite Enforcement MOU, supra note 277.
495. Readers will likely differ as to whether this enforcement policy crossed the line into unilateral dispensation of law. Compare, e.g., Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration's Nonenforcement of the Immigration Laws, the DREAM Act, and the Take Care Clause, 91 Tex. L. Rev. 781 (2013) (arguing that the President's claim of prosecutorial discretion exceeds the scope of his executive authority under the Constitution), and Amended Complaint, Crane v. Napolitano, No. 3:12-cv-03247-O, (N.D. Tex. Oct. 10, 2012) (alleging, in a lawsuit brought by ICE agents, that the President's directive violates the Administrative Procedure Act, immigration statutes, and constitutional separation of powers), with David A. Martin, A Defense of Immigration-Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach's Latest Crusade, 122 Yale L.J. Online 167 (2012), http://yalelawjournal.org/2012/12/20/martin.html (defending the Administration's actions and making the case that the Crane plaintiffs' argument misun derstands the law).
496. See supra notes 163-65 (describing White House and DHS statements on the DREAM Act enforcement initiative).
497. See, e.g., Munoz, supra note 163 (discussing the motivations for the Administration's decision).
498. Removal of all undocumented immigrants in the nation, consistent with law, would likely require an ICE budget of at least $100 billion more than the current budget. Com pare William L. Painter, Cong. Res. Serv., R42557, Department of Homeland Security Appropriations: A Summary of the House-Passed and Senate- Reported Bills for FY 2013, at 6 (2012) (describing current budget), available at http:// www.fas.org/sgp/crs/homesec/R42557.pdf, with Jana Kasperkevic, Deporting All of America's Illegal Immigrants Would Cost a Whopping $285 Billion, Bus. Insider, Jan. 30, 2012, http://www.businessinsider.com/deporting-all-of-americas-illegal-immigrants-would- cost-a-whopping-285-billion-2012-1 (estimating the cost of a mass-deportation program).
499. Napolitano Prosecutorial Discretion Memorandum, supra note 164, at 3.
500. Id.; see also supra note 164 (discussing the general authority for deferred action). Notably, the practice of prosecutorial discretion in immigration law is not limited to deferred action: It "extends to decisions about which offenses or populations to target; whom to stop, interrogate, and arrest; whether to detain or to release a noncitizen; whether to initiate removal proceedings; whether to execute a removal order; and various other decisions." Shoba S. Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L.J. 243, 244 (2009).
501. David B. Rivkin, & Lee A. Casey, Editorial, Obama's Illegal Move on Immigration, Wash. Post, Sept. 2, 2011, at A19.
502. 414 Id.; see also Lamar Smith, The President Can't Wait to Ignore Our Laws, Nat'l Rev. Online: The Corner (May 1, 2012, 11:32 AM), http://www.nationalreview.com/corner/297408/president-cant-wait-ignore-our-laws-lamar-smith (criticizing the President's enforcement priorities).
503. Arizona v. United States, 132 S. Ct. 2492, 2521 (2012) (Scalia, J. dissenting); cf. id. at 2499 (majority opinion) (embracing the Executive's right to exercise enforcement discretion).
504. See Morrison, supra note 333, at 1502 (discussing how the OLC need not provide an objectively neutral view of the law); cf. Pildes, supra note 1, at 1402 (noting that there are different possible meanings when asking presidents to comply with law in contexts in which courts will not provide judicial answers, and asking whether "the President [is] obligated to adopt the 'best' interpretation of law, such as the one that an impartial detached legal interpreter would take" or whether "it [is] enough that the President's position be a 'plau sible' legal one").
505. See supra notes 39-44 and accompanying text (describing how, when Congress imposes legislative constraints, it typically leaves ample room for enforcement discretion). Indeed, for this reason, one might object that demanding articulation of legal reasons for exercises of enforcement discretion expands accepted notions of legal reasoning so far as to undermine law's value. This concern, while not illegitimate, does not outweigh the accountability benefits that can result from forcing a process of legal reasoning and expecting disclosure.
506. See supra notes 36-38 and accompanying text (discussing judicial responses to non- enforcement decisions).
507. 419 470 U.S. 821, 834 (1985). One problem is that it is hard to fashion judicial relief. To illustrate this point, Peter Strauss points to the fourteen-year struggle to compel the Secretary of Labor to issue a rule providing drinking water access to agricultural workers. See Strauss, supra note 4, at 113 (discussing Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613, 614 (D.C. Cir.), vacated as moot, 817 F.2d 890 (D.C. Cir. 1987)).
508. See Dalton v. Specter, 511 U.S. 462, 476 (1994) (finding that a presidential decision on military base closure recommendations is not reviewable, and adding that a President could "approv[e] or disapprov[e] the recommendations for whatever reason he sees fit"); Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) (holding that the President's decision of whether to transmit the Census report to Congress was unreviewable by courts for abuse of discretion); cf. Franklin, 505 U.S. at 799-800 (noting that it was "important to the integ rity of the process" that the decision was made by the President, a "constitutional officer," as opposed to the unelected Secretary of Commerce).
509. Heckler, 470 U.S. at 833 n.4 (1985) (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en banc)); see also 5 U.S.C. § 706 (2012) (permitting review for agency action unlawfully withheld or unreasonably delayed).
510. The suit filed by ICE agents, objecting to the DREAM Act enforcement policy deci sion, might be one such example. See Amended Complaint, supra note 407 (alleging, in a lawsuit brought by ICE agents, that the President's directive violates the APA, immigra tion statutes, and constitutional separation of powers).
511. Of course, disclosure of presidential enforcement policy decisions might increase attempts for court review and might lead to judicial rethinking of standards for review. What might develop raises a host of questions-from standing to ripeness to the scope of the APA-all of which are beyond the scope of this Article.
512. See supra note 35 (discussing distinction between legislative and nonlegislative rules).
513. Katherine Watts argues for an expansion of arbitrary and capricious review to award "credit" to certain political influences that an agency transparently discloses and relies upon in its rulemaking record. Katherine A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 Yale L.J. 2, 2 (2009). Elena Kagan has argued that courts should apply Chevron deference when presidential involvement "rises to a certain level of substantiality, as manifested in executive orders and directives, rulemaking records, and other objective indicia of decisionmaking processes." Kagan, supra note 2, at 2377.
514. Goldsmith & Manning, supra note 4, at 2309. President William Howard Taft relied on the Take Care Clause to support the notion that the President can act to advance fed eral interests without specific legal authority. See Taft, supra note 387, at 78, 125 (sup porting the notion, while recognizing that the President may not tell his employees to act contra legem). President Theodore Roosevelt, too, believed that the Take Care Clause meant that the President could do anything on behalf of the nation except what the Constitution and the laws expressly proscribed. Theodore Roosevelt, An Autobiography 352-53 (1929), cited in Lessig & Sunstein, supra note 290, at 63 n.256; Skowronek, supra note 94, at 2078 (describing Theodore Roosevelt's stewardship theory of the presidency). Even most unitary executive scholars, however, reject this theory in its strongest form. See Calabresi & Yoo, supra note 2, at 245 (distinguishing Theodore Roosevelt's stewardship theory from unitary executive theory, and claiming that the latter theory rejects the notion that presidents have inherent authority to act in the absence of a statute).
515. See Neustadt, supra note 295, at 28-37 (arguing that the President ultimately has only the "power to persuade"); Howell, supra note 152, at 70-75, 101-35 (analyzing how and when Congress constrains the President).
516. See Moe & Howell, supra note 180, at 856 (noting that overly aggressive action by the President can have political consequences).
517. See id. (noting the role of public opinion).
518. See supra note 333 and accompanying text (collecting literature on internal executive branch checks); cf. Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 Yale L.J. 1256, 1261-62 (2006) (discussing the "internal law of administration" as consisting of internal instructions issued by higher level officials to control the exercise of discretion by their subordinates).
519. Cf. Ackerman, supra note 2, at 1-12 (predicting a constitutional crisis arising from the unitary executive and catastrophic decline of democratic republican values).
520. See Moe & Howell, supra note 180, at 856 (noting that overly aggressive action by the President can have political consequences).
521. See supra notes 161-65 and accompanying text (discussing the President's DREAM Act directive).
522. See supra note 413 and accompanying text (discussing the Washington Post editorial).
523. Rivkin & Casey, supra note 413, at A19.
524. Compare, e.g., Kimberley A. Strassel, Obama's Imperial Presidency, Wall St. J., July 6, 2012, at A11 (arguing that President Obama exceeded executive power with the DREAM Act), with Editorial, Fixing the Game, N.Y. Times, Dec. 5, 2005, at A22 (arguing that President Bush exceeded executive power with enforcement of the Voting Rights Act).
525. One historical example is the backlash from EPA line officials against Reagan's non- enforcement of environmental law. See supra note 120 and accompanying text (discussing Reagan's efforts and the resulting backlash).
526. See Benjamin Ewing & Douglas A. Kysar, Prods and Pleas: Limited Government in an Era of Unlimited Harm, 121 Yale L.J. 350, 354 (2011) (arguing that "prods" and "pleas" are part of the separation of powers, along with "checks" and "balances").
527. Magill, supra note 62, at 604.
528. See Brianne J. Gorod, Defending Executive Non-Defense and the Principal-Agent Problem, 106 Nw. U. L. Rev. 1201, 1232 n.138 (2012) (citing Ameron, Inc. v. U.S. Army Corps of Eng'rs, 787 F.2d 875, 888 (3d Cir. 1986); Am. Fed'n of Gov't Emps. v. Pierce, 697 F.2d 303, 305 (D.C. Cir. 1982)) (discussing the problems associated with congressional standing).
529. As Gillian Metzger has noted, some internal separation-of-powers mechanisms "appear primarily animated by concerns about individual fairness and have a due process element-in particular, the division of functions within agencies and the separation of adjudication from legislative, investigatory, and enforcement activities." Metzger, supra note 62, at 429.