Administrative “Interpretation” as Policy-Making

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Ainistati Th & Pais / December 2009, Vol. 31, No. 4, pp. 556–576.

© 2009 Public Administration Theory Network.

1084-1806 / 2009 $9.50 + 0.00.

DOI 10.2753/ATP1084-1806310406

Amiistratie “Iterpretati” as Plic-Makig

An Abuse o Discretion byPresidential Administrations

Larr S. Lut

Easter Wasigt Uiersit

ABSTRACT

Bcaus it is ifcut t gt nw statuts pass t an

statuts that ha bn apt, psintia ainistatins a

st t apting nw “intptatins” statuts in t

uth thi pic agnas. In th itatu, this statg has

tn bn ang ths incu within “th ainistati

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th tw st cnt psintia ainistatins ha abus this

appach t pic tansatin an suggsts that ang th

ng-t ipacts such abus a b th unining

th U.S. Cnstitutin, th gitiizatin ainistati aw,

an a ss scia tust.

Since at least the raming o the Constitution, the United States has been

engaged in a conversation about the extent to which presidential administra-

tions should be empowered to shape policy and execute the laws as they see

t. Lowi’s (e.g., 1987) voice has been a strong one among those who have

expressed concern about the growth o presidential administrative discretion.George W. Bush’s presidential administration staked out new ground in this

conversation in its development o a theory o the unitary executive, but the

tendency o presidential administrations to expand the envelope o executive

authority is not a new phenomenon.1

Many administrative law textbooks address this phenomenon directly

in a chapter on the powers o the executive branch to guide the actions and



lUToN 557

decisions o administrative agencies or one on the growth o administrative

power (e.g., Cann, 2006, chap. 2; Warren, 1982, chap. 3). Because o the

checks and balances system, some o the dynamics involved in the tendencyo presidential administrations to try to expand executive authority are also

addressed in chapters on legislative delegation and judicial review. Due to the

nature o its relations with the other branches, issues involving the parameters

o the executive branch’s authority inevitably aect the legislative and judi-

cial branch as well. As John Muir said o the natural world, in the American

constitutional system, everything is hitched to everything else.

In this context, when they discuss the powers o the executive branch,

most texts address such constitutional powers as the president’s authority to

nominate ocers (Article II, Section 2) and to recommend legislation (Article

II, Section 3). Most also address topics like the sole organ theory, executiveprivilege, and the increasing role o the executive branch in setting the budget.

Some include treatment o the president’s power to reorganize administra-

tive agencies and the Oce o Management and Budget’s ability to screen

proposed agency regulations. To those standard executive powers, Cooper

(2002) added insightul treatment o “executive power tools” such as executive

orders, presidential memoranda, presidential proclamations, national security

directives, and signing statements. To that list I would add “interpreting” (or

“reinterpreting”) the Constitution, “interpreting” (or “reinterpreting”) statutes,

“interpreting” regulations, administrative rulemaking, making appointments

(especially “counterstang”),2 and various approaches to making “stealth”

administrative initiatives—ones that are not announced or explained publicly

unless and until they are somehow brought into public attention.

Among the more traditional administrative law areas that aect the abil-

ity o presidential administrations to urther their policy agendas is the area

related to legislative delegation. Although the executive branch derives some

o its authority rom the Constitution, almost all administrative agency author-

ity derives rom the legislature as expressed in statutes. Since the beginning

o the administrative state, there has been an issue relating to the scope o

policy-making authority that the legislature can delegate to executive or ad-

ministrative agencies. The general rule is that the legislature must make major

social policy decisions, leaving the agencies to ll in the details (c. Haptn. U.S., 1928). The legislature should in their statutes provide an intelligible

principle, ascertainable standards, and procedural saeguards. Without such

guidance or the executives and administrators, the courts could nd that

the legislature has violated the nondelegation doctrine—that the legislature

may not delegate its legislative authority to the executive branch, the judicial

branch, or administrative agencies.

Since Schcht (1935), the likelihood o that happening has become slight,

but it remains incumbent upon Congress to leave a gap within which adminis-

trators may ll in the details. I they have done so explicitly, Chn (1984)



558 AdmINISTrATIve THeory & PrAxIS v vol. 31, No. 4

and ma (2001) suggest that the courts are bound to accept the agency’s

regulation—unless it contradicts the statute, is arbitrary and capricious, or

has a serious procedural deect. Interested parties should not be able to usethe courts to overturn agency interpretations and decisions simply because

they do not agree with them. But deerence to this kind o agency discretion is

premised upon its exercise being within the limits o the authority delegated,

the absence o dispositive language in the statute, an inability to discern a

contrary congressional intent through a review o the legislative history, and

the absence o a dispositive decision in a previous case (sta cisis).3

A second (and related) area o administrative law that aects the ability o

presidential administrations to urther their policy agendas involves judicial

deerence to inormal administrative discretion—decisions and policies adopted

without notice-and-comment or adjudicatory procedures, thus not having theorce o law. When courts deer to inormal decisions made by agencies, it is usu-

ally because o the expertise and experience those agencies have in relation to the

issues involved in a case (c. NlrB . Hast Pubicatins, Inc. , 1944; Ski

. Swit an Cpan, 1944; Unisa Caa Cp. . NlrB, 1951).

In sum, the ability o presidential administrations to expand their power is

limited by the relationships among the branches as established in the Constitution

and interpreted and practiced by those branches over the years. O course, all

laws (including the Constitution as well as statutes) are subject to interpretation;

the president and executive and administrative agencies must be involved in

interpreting administrative law. But the novelty o those interpretations should

be limited by their impacts upon other members o the governance community—

and their reactions to them. As Rorty (2007, especially chap. 1) has argued,

asserted changes in authority are merely power moves until the community

decides to accept them, because they will help to make a better world.

This article will contribute to the literature on power strategies that have

been used in attempts to expand executive and administrative authority by

using U.S. Supreme Court cases to describe how presidential administrations

have moved to make major social policy decisions by reinterpreting statutes

instead o changing them. When they ignore limits placed on agencies, reuse

to recognize dispositive statutory language, or pretend not to see congressio-

nal intent, these moves are at least inappropriate and may be a threat to ourconstitutional system.

Administrative theorists who work rom an interpretive ramework may

question the implication that interpretation (or reinterpretation) is a problem

to critique rather than a postmodern condition with which we need to cope. As

will be shown, the problem this article addresses is not interpretation per se,

but the use o interpretation to undermine the relationships among those who

should be involved in the social construction o major public policy choices.

The U.S. Constitution describes a general pattern o relationships among the

institutions o government in making, implementing, and enorcing public



lUToN 559

policy. When one branch o government takes intentional action to avoid the

challenges involved in honoring those relationships, it threatens their continued

existence. When they use interpretation to change or contradict statutes, theyail the test o sincerity that Fox and Miller (1996, pp. 117, 121) suggested

should be requisite or participating in policy discussions. I the community

accepts these insincere arguments, we will have succumbed to power moves,

not reached a new social/political consensus.

ThE AdMInISTRATIvE PRESIdEnCy

Nathan (1975) introduced the idea o the administrative presidency in his

analysis o the Nixon administration and expanded on it eight years later in ana-

lyzing the presidencies o Nixon and Reagan (Nathan, 1983).4

Durant (1992)elaborated on the concept in his analysis o the Reagan administration’s public

lands policy. Nathan viewed the administrative presidency strategy as a means

o improving presidential leadership potential. Others expressed concern that

it undermines Congress’s role in establishing policy and threatens the value

o nonpartisan, expertise-, and experience-based policy implementation and

enorcement (e.g., Diver, 1987; McGarity, 1987; Strauss, 2007).

To some extent, the concept o the administrative presidency is based

on a presumption that Congress and the bureaucracy will generally oppose

presidential policy initiatives. The term has been used to describe a strategy

“to bring the bureaucracy under control as an instrument or achieving the

Administration’s domestic policy objectives” (Nathan, 1975, p. 81). A view

o the bureaucracy as posing a potential challenge to presidential initiatives is

well supported in the literature. Herring’s (1936) view o the public adminis-

trator as someone who must make an independent interpretation o the laws

he or she is to administer in order to pursue the public interest suggests that

potential. Rohr’s (1986) view o the bureaucracy as a balance wheel carries

a similar import. Woll’s (1963) view o the bureaucracy as an independent

orce, and Long’s (1952) assertion that the “ourth branch” is not inerior to

the other three suggest that bureaucratic opposition to presidential initiatives

is a positive aspect o the bureaucracy’s unction in the American political

system.Moreover, i a president’s policy preerences are in signicant opposition

to the ideas upon which previous major policy administering institutions

were ounded, it should not be surprising i the people administering those

institutions see their missions as worthwhile and legitimate even i the new

president does not. As Sandel pointed out, such institutions are not simply

instruments, “they are themselves embodiments o ideas” (1996, p. ix). For

example, the Environmental Protection Agency represents the idea that the

potential adverse impacts o economic activities on the environment should

be limited or mitigated.




Here, however, the ocus is on the relationship between Congress and presi-

dential administrations. The idea that Congress may oppose presidential policy

initiatives is built into the checks and balances system in the U.S. Constitution.The suggestion that this institutional dynamic is a problem to be overcome rather

than a situation to cope with derives somewhat rom the historical context in

which the concept o the administrative presidency emerged. Both Nixon and

Reagan were Republican presidents in times when Congress was dominated by

Democrats. During their presidencies, the institutional opposition built into the

Constitution was enhanced by the partisan opposition they aced.

Nixon’s administrative presidency strategy included personnel actions

(hiring loyalists), budgetary actions (impoundments and reductions), reorga-

nization, and regulation writing (Nathan, 1975, p. 81). In Nixon’s perspective,

he was abandoning and changing programs that had ailed (Nathan, 1975,p. 71). The problem, as he saw it, was that Johnson’s “Great Society” had

created programs that he did not support. Those programs were staed by

career ocials who were committed to them, so he needed to nd a way to

redirect or at least hobble them in order to move policy more in the direc-

tion he preerred. Because Congress was still dominated by Democrats who

supported the programs, the prospect o moving policy in Nixon’s preerred

direction through legislative action was not very good.

Reagan’s administrative presidency strategy included similar personnel,

budgetary, and regulatory actions to which he added process and implemen-

tation changes that included stricter monitoring o agency perormance and

devolving programs to the states (Durant, 1992). Reagan saw government as

the problem, not the solution; so he came into oce seeking to reduce “the

size and scope o government in domestic aairs” (Nathan, 1983, p. 11). In

Nathan’s analysis, the Reagan administration pursued both a legislative agenda

and an administrative presidency agenda. His popularity meant that he had

some legislative success; but because he, too, aced a Democratic Congress,

his administrative strategy was seen as necessary or his leadership to result

in policy changes. A key part o his personnel action strategy was the appoint-

ment o persons who opposed the mission o the agency to which they were

appointed—or example, “environmental quality jobs [went] to advocates . . .

o lower water and air quality standards” (Nathan, 1983, p. 75). That approachwas an attempt to obviate the need or changing the enabling statutes. He also

removed some regulations and relaxed the enorcement o others.

In resorting to administrative strategies to alter statutorily adopted policy,

both the Nixon and Reagan administrative presidencies undermined socially

constructed norms o practice that provided stability and ostered the trust that

is necessary or a constitutional system to work. Laws provide a structure,

but without agreement about how we operate within those laws and how we

go about changing them, the structure is a meaningless (and, thereore, use-

less) abrication.



lUToN 561

The dynamics o the administrative presidency approach o reinterpreting

statutes in order to change policy rather than taking the more challenging

approach o working to change statutory law can be seen in an example dem-onstrating a dierence o policy preerences between the Carter and Reagan

administrations. The example is related in lujan . dns Wii

(1992).5 In 1978 during the Carter administration, the secretary o the interior

and the secretary o commerce issued a joint regulation extending the Endan-

gered Species Act’s (ESA) coverage to actions taken in oreign nations (43 Fed.

Reg. 874, 1978). Prior to that regulation, the ESA had only been applied to

actions by the United States taken within its borders or on the high seas. Rather

than attempt to amend the ESA, the Carter administration opted to change its

scope by issuing a regulation. When the Reagan administration reviewed that

action, it was a relatively simple matter or it to decide to issue a new regulation(51 Fed. Reg. 19926, 1986; 50 CFR 402.01, 1991) reducing the scope o the

ESA once again to domestic actions. The result o such an administration-by-

administration fip-fop is unstable application o the law that is driven by the

ideologies and policy preerences o presidential administrations.

Presidential administrations should be able to express their policy preer-

ences and act upon those preerences, but they should nd that their degree

o reedom in doing so is limited by the “sedimented” habits (Fox & Miller,

1996) o the governance community and its collective judgment as to where

authority to change social policy rests. Without the sedimentation o social

constructions over time, the eective meaning o our laws is subject to radical

fuctuations. I we do not honor those policies adopted by our predecessors (or

take on the challenge o changing them through the same procedures through

which they were adopted), why should others respect the policies we adopt?

The administrative presidency represents one institution’s rustration with the

limits imposed by policies adopted by previous administrations, but it may be

on the verge o becoming a sedimented habit i the governance community

does not more clearly express its rejection o the practice.

The challenge to the American governance system posed by overly ag-

gressive pursuit o presidential and executive branch power, which may have

appeared to be met by institutional responses to the excesses o the Nixon

administration, instead continues. Adopted in some ashion by every presi-dential administration in recent history, the threat posed by aggressive use o

administrative presidency strategies did not disappear with the end o the G.

W. Bush administration’s attempt to establish a unitary executive.

ThE CLInTon AdMInISTRATIon’S USE And ABUSE of An

AdMInISTRATIvE PRESIdEnCy APPRoACh

An administrative presidency strategy was utilized by the Clinton adminis-

tration. Like Nixon and Reagan, Clinton came into oce ater a long period




o presidential control resting in the hands o the other political party. Six o

his eight years in oce also ound Congress, both the House and the Senate,

controlled by a Republican majority. This means that the Clinton adminis-tration’s relationship with Congress was similar to those o the Nixon and

Reagan administrations. Facing strong opposition in Congress, the Clinton

administration’s prospects or making signicant social policy changes

through legislation were dim. In other words, Clinton had the same kinds o

incentives or resorting to an administrative presidency approach as did the

two administrations most associated with that strategy.

In order to illustrate Clinton’s administrative strategy, ocus is placed on

two instances in which his administration sought to expand the authority

o specic administrative agencies by reinterpreting their enabling statutes.

Both instances resulted in cases decided by the U.S. Supreme Court. In d- patnt Cc . U.S. Hus rpsntatis (1999), the dispute

involved whether the Census Bureau could utilize statistical sampling in

relation to congressional apportionment. In FdA . Bwn & Wiiasn

Tbacc Cp. (2000), the dispute was about whether the Food and Drug

Administration (FDA) had authority to regulate tobacco. The Clinton ad-

ministration lost both cases in 5-to-4 decisions in which Justice O’Connor

wrote the majority opinion.6

Attempting to Expand Census Authority

In dpatnt Cc . U.S. Hus rpsntatis (1999), Justice

O’Connor concluded that the proposal to utilize statistical sampling in connec-

tion with congressional apportionment violated the Census Act. The Clinton

administration argued that the revision o Section 141 in the 1976 Census

Act gave the secretary o commerce (acting through the Census Bureau) wide

discretionary authority regarding the use o statistical sampling—authority

that included deciding to use statistical sampling in relation to congressional

apportionment. O’Connor said that the broad grant o authority in Section

141 was qualied by a more specic portion o the Act; in her interpretation

Section 195 directly prohibited use o statistical sampling or purposes o

apportionment (p. 338).

Section 141 reads in relevant part:

Take a decennial census . . . in such orm and content as he may deter-

mine, including the use o sampling procedures and special surveys.

(13 USC Section 141(a))

Section 195 reads:

Except or the determination o population or purposes o apportion-

ment o Representatives in Congress among the several States, the



lUToN 563

Secretary shall, i he considers it easible, authorize the use o the

statistical method known as “sampling” in carrying out the provisions

o this title. (13 USC Section 195)

In O’Connor’s opinion, when Congress amended the Census Act in 1976, it

did not change the long-standing prohibition o the use o statistical sampling

in relation to apportionment:

As amended, the section [195] now requires the Secretary to use

statistical sampling in assembling the myriad demographic data that

are collected in connection with the decennial census. But the section

maintains its prohibition on the use o statistical sampling in calculating

population or purposes o apportionment. (1999, p. 339)

Her reading o section 195 was buttressed by the historical context in whichstatistical sampling or purposes o apportionment had never beore been au-

thorized. She also pointed out that until 1994, the Clinton administration had

agreed that section 195 prohibited the use o sampling or apportionment.

Focusing on the literal language o section 195, Justice Breyer dissented. He

read the section as disallowing statistical sampling as a substitut or traditional

enumeration methods but allowing it as a suppnta method (and the Clin-

ton administration proposed to use sampling only as a supplemental method

in relation to apportionment purposes). Admitting that the section could be

read as the majority opinion did or as he did, he would have deerred to the

administration’s interpretation. Given that this distinction between samplingas a substitute or enumeration and sampling to supplement enumeration is

not addressed in section 195, this was a very creative and generous move on

Breyer’s part, but it ignored the dispositive language in the statute and the

rather clear policy preerence ound in the legislative history.

Also dissenting, Justice Stevens read section 141 as an unlimited au-

thorization and section 195 as a limited mandate. He said that section 195

qualied the use o sampling or apportionment purposes, saying that the

secretary o commerce might choose not to utilize it i he ound it ineasible.

Like Breyer, he argued the use o statistical sampling should be under the

administrator’s discretion. However, reading section 195 as anything otherthan a limitation on the authorization granted in section 141 seems to be a

rather tortured interpretive exercise, one that treats dispositive language as i

it were not dispositive.

Even a generous view o the Clinton administration’s 1994 claim o new

authority would admit that it was based on a reinterpretation o the 1976

Census Act, not on any recent change in it. In O’Connor’s opinion, there

was no evidence in the congressional debates that any member o Congress

suggested section 195 undamentally changed the Census Bureau’s author-

ity to use statistical sampling or apportionment. She said: “it tests the limits

o reason to suggest that despite such silence [Congress] intended to enact




what would arguably be the single most signicant change in the method

o conducting the decennial census since its inception” (p. 343). Stevens’s

interpretation o that silence as a lack o objection ignores the limits placedon agency authority and denies the dispositive language.

The heart o O’Connor’s argument was that because Congress had not

clearly authorized such a change in census procedures, it was not proper or

the Clinton administration to try to assert important new authority simply

by reinterpreting the statute. Major changes in public policy are to be made

by Congress through the legislative process, or by administrative agencies

under the authority granted by Congress, not by agencies that disagree with

Congress and use interpretation to establish a contrary policy.

Even though the policy preerence that motivated Clinton’s reinterpreta-

tion o the Census Act is one with which I am sympathetic, changing censusprocedures in such a undamental way without authorization rom Congress

is a power move that threatens to undermine the traditional role o Congress

in setting social policy. It would be good to improve the count o dicult-to-

nd people, people who are suciently alienated rom our society that they

evade normal attempts at enumeration. Making sure that they are counted and

represented in Congress would help make a better world, but we should not

achieve that improvement at the cost o such undamental balance o author-

ity questions. I the change were made without going through the normal

congressional process or changing statutes, it would also ail to obtain the

legitimacy that public deliberation can coner upon it. As Rorty pointed out, “I

one is going to challenge an ongoing cultural practice, one must both explain

what practice might be put in place, and how this substitute will tie in with

surrounding practices” (2007, p. 20). That explanation must not only be made,

but also be accepted by the governance community through the procedures

established or signaling that acceptance. The ease with which administrative

interpretations can be changed should not be sucient reason or ignoring

constitutional limitations and congressional directions.

Attempting to Enhance Regulatory Authority

FdA . Bwn & Wiiasn Tbacc Cp. (2000) also involves a situationwhere the Clinton administration sought to expand the authority o an admin-

istrative agency through reinterpreting the enabling statute. In this case, the

agency was the FDA, the statute was the Food Drug and Cosmetic Act (FDCA),

and the expansion was a claim that the FDA could regulate tobacco under its

authority over drugs and drug delivery devices. This assertion was based on a

literal reading o certain phrases in the statute and a claim that the FDA now

had new evidence that tobacco companies were deliberately using cigarettes and

smokeless tobacco to deliver nicotine into the bodies o its consumers in doses

meant to induce habit-orming eects—evidence that in their point o view put



lUToN 565

this practice under the authority o the FDA to protect the public health.

Justice O’Connor also wrote the majority opinion in this case, another

5-to-4 decision. Her opinion disallowed the asserted expansion o authorityand concluded that “Congress has clearly precluded the FDA rom asserting

jurisdiction to regulate tobacco products” (p. 126). She based that conclusion

on an interpretation o the FDCA, a review o the history o legislative bills

relating to the FDA and to regulating tobacco, and the act that the FDA had

long interpreted the law to mean that it lacked authority to regulate tobacco.

Interpreting the FDCA, she pointed out that the FDA was authorized to regulate

products that could be used saely and to ban products that could not. In its

reinterpretation, despite its own ndings that “tobacco products are unsae”

(p. 134), the FDA argued that it did not have to ban the use o tobacco—a

position that was based on its claim that allowing continued use o the productby persons over 18 might be better or the public health than a ban on its use.

O’Connor reerred to this conclusion as “ironic” (p. 139). The claim was an

attempt to avoid violating clear congressional policy against banning tobacco

products (p. 139), but it was based on the eects o withdrawal on nicotine

addicts, not on the saety o tobacco products. Noting that according to the

FDA’s own evidence, continued use o tobacco would not be a sae practice

or consumers, O’Connor rejected this argument. In summarizing her review

o legislative history related to the FDA and tobacco, O’Connor concluded that

“Congress has created a distinct regulatory scheme to address the problem o

tobacco and health, and that scheme, as presently constructed, precludes any

role or the FDA” (p. 144). With regard to FDA’s contention that it recently

had ound statutory authority to regulate tobacco, she reviewed the history

o agency statements to the contrary, a history dating rom the 1930s to the

late 1980s. She did not contend that the FDA was generally without authority

to change its interpretation, but ound that Congress had accepted the FDA’s

previous position that the administration did not have authority to regulate

tobacco. Because Congress relied on that understanding as it constructed

legislation providing or other ways o regulating tobacco, the FDA could

not unilaterally alter its own authority in relation to tobacco. It was clear

that Congress had understood the FDA not to have that authority and had

not provided new authority to the FDA, so the FDA was without authorityto assert it or itsel.

Justice Breyer wrote or the dissent. He argued that the literal language

o the FDCA suggested that tobacco products ell within its scope and that

the actions proposed by the FDA were within the statute’s basic purpose.

In his argument about the literal language o the FDCA, he appeared to

have intentionally ignored the majority’s argument regarding the regulatory

scheme or tobacco that Congress had established (which, o course, would

not be ound in the FDCA). He also argued that the FDA was not required

by the FDCA to ban an unsae product (as the majority argued). He said




the majority’s argument implied that the FDA did indeed have jurisdiction,

completely ignoring the conditional aspect o the majority opinion clearly

indicating i the FDA had jurisdiction over tobacco, it would have to ban it asunsae. When he did address the majority’s argument regarding the regulatory

scheme that Congress has established or tobacco, in his most clear rejec-

tion o the established understanding that Congress should delegate through

direct, armative language, Breyer said that Congress had nt clearly told

the FDA that it could nt exercise jurisdiction over tobacco products—but

a double negative does not constitute direct armative language. He even

admitted that Congress did not grant the FDA regulatory authority over

tobacco: “Congress could not muster the votes necessary either to grant or

to deny the FDA the relevant authority” (p. 183). In a constitutional system

o limited government, an agency that is not granted authority does not haveit. Congress does not need to deny authority to agencies. In order or them

to have authority, Congress needs to coner it. Finally, Breyer also thought

the FDA’s recent change in its interpretation o the FDCA was not legally

signicant. In his opinion, a broad delegation o power such as that ound

in the FDCA “could lead ater many years to an assertion o jurisdiction

that the [original] legislators might not have expected” and the court would

be expected to “rule such a jurisdictional assertion ully authorized” (pp.

166–167). That argument, however, assumes the agency’s assertion to be

within its general grant o authority and nt contrary to Congress’s under-

standing o the limits o that authority. I the court were to take his approach,

it would transer major social policy-making to the administration, allowing

it to pretend to have authorization or something that the legislators admit-

tedly did not intend to authorize.

The disagreement between O’Connor and Breyer hinged on what kind o

evidence regarding congressional intent is required. For O’Connor, the FDA

needed to show that Congress intended to authorize it to regulate tobacco.

For Breyer, i Congress has not stated clearly that the FDA cannot regulate

tobacco, the FDA should be allowed to assert its own interpretation o its au-

thority. Presumably, the remedy i Congress did not want that outcome would

be or it to pass legislation clearly stating that the FDA was not authorized

to regulate tobacco.Breyer’s approach presumes a government o virtually unlimited authority,

not one o constitutionally and statutorily limited authority:

One might claim . . . that a decision with “enormous social conse-

quences” . . . should be made by democratically elected Members o

Congress rather than by unelected agency administrators. . . . I there is

such a background canon o interpretation, however, I do not believe it

controls the outcome here. . . . Insoar as the decision to regulate tobacco

refects the policy o an administration, it is a decision or which that

administration, and those politically elected ocials who support it,



lUToN 567

must (and will) take responsibility . . . the public is likely to be aware

o it and to hold those ocials politically accountable. (p. 190)

His approach would allow administrative agencies to assert authority to take

governance actions and would have courts presume the agencies were correct

until the legislature reacted by denying the asserted authority—or a new presi-

dential administration was elected and changed its administrative approach.

Congress’s role would be to deny (or withdraw) authority, not to grant it.

Breyer’s argument was also administratively and politically naïve. It is

quite idealistic in its assumptions regarding public awareness and the ability

o the electoral process to correct specic policy approaches. First, it would

do nothing to address the diminished political accountability o a second-

term presidential administration. Once a president has been elected to a

second term, the ability o the public to hold that president’s administrationaccountable through the electoral process is practically nonexistent. In rela-

tion to Congress, a second-term president may be a “lame duck,” but in a

second-term president’s relationship with the general public, it is the public

that is rendered lame.

In addition, Breyer’s suggested approach to making major policy decisions

would obviate the need or Congress to delegate authority and place the pre-

sumption o the legitimacy o an administrative or executive agency’s authority

within their own creatively interpretive minds—at least until someone chal-

lenged their claim and was able to get relie rom the legislature. The role o

the courts in assessing the legitimacy o the agencies’ claims would be limitedto whether they had made a supercially plausible interpretation o sections o

statutory language. Because agency attorneys would likely be able to make a

plausible, i not entirely believable, claim regarding their interpretation o statu-

tory language, this would result in barely limited government—government in

which the limits o authority would be very slowly ascertained through new

legislative clarications rather than the already slow enough process o judicial

review. The Bwn an Wiiasn case may not have been decisively settled

based strictly on statutory language, but when that language is viewed within

the context o the limits o agency authority and the meaning o legislative

history, it is clear how destabilizing it would be to ollow Breyer’s approach.When the statute does not provide dispositive language, it is oten necessary

to examine legislative history to determine congressional intent.7

Both o these cases illustrate the Clinton administration’s strategy o reinter-

preting statutes to try to change substantive policy by expanding administrative

authority. Although the administrative presidency has more commonly been

associated with Republican administrations, this use o an administrative

presidency strategy and the policies that would have resulted—enhancing the

census count o renters and minorities assumed to be more inclined to vote

or Democratic candidates and expanding regulatory authority—were ones

associated with the Democratic Party. Despite Clinton’s ailure in these cases,




they clearly illustrate that an administrative presidency approach contains

potential or enhancing as well as reducing administrative authority.

GEoRGE W. BUSh’S AdMInISTRATIvE PRESIdEnCy

The George W. Bush administration’s attempts to reinterpret statutes provides

urther evidence o that strategy’s potential or making claims about adminis-

trative authority that are either expansive or constraining in nature. Gnzas

. ogn (2006) provides an example o the Bush administration’s attempt

to expand its authority by reinterpreting a statute, and massachustts . ePA

(2007) is an example o an attempt to constrain administrative authority.

“Reinterpreting” to Expand Administrative Authority

It was Attorney General John Ashcrot who initiated the Bush administration’s

attempt to reinterpret the Controlled Substances Act (CSA) in a manner that al-

lowed the attorney general (AG) to prohibit physician-assisted suicide. Oregon

voters had passed a physician-assisted suicide law (Oregon Death with Dignity

Act) in 1994 and rejected an attempt to repeal it in 1997. In 1998 Clinton’s AG,

Janet Reno, responding to pressure rom members o Congress who opposed

physician-assisted suicide, concluded that the CSA did not give her authority

to “displace the states as the primary regulator o the medical proession, or

to override a state’s determination as to what constitutes legitimate medicalpractice” (Gnzas . ogn, 2006, p. 5). A congressional attempt to grant

that authority to the AG did not succeed. Appointed to the AG position by

the newly elected president Bush, Ashcrot on November 9, 2001, issued an

interpretive rule that purported to nd the authority that Reno said did not

exist and Congress ailed to pass. By the time the case reached the Supreme

Court, Gonzales was Bush’s AG.

Justice Kennedy wrote the 6-to-3 majority opinion in Gnzas . ogn

(2006). Recognizing that executive and administrative actors must interpret

the law, and that in some circumstances the court is obliged to deer to their

interpretations, he quoted ma, saying that deerence is only proper “when

it appears that the agency interpretation claiming deerence was promulgatedin the exercise o that [congressionally delegated] authority” (p. 8). In this

case, Kennedy ound that Congress had not delegated the claimed authority to

the AG. As an indication o the degree to which he ound the administration’s

claim to be an overreach, Kennedy said, “I the Attorney General’s argument

were correct, his power . . . to criminalize . . . would be unrestrained” (p. 15).

The CSA authorized the AG to make decisions about compliance with the law,

but it did not give him the authority to single-handedly change the law (pp.

17, 28). In other words, the Bush Justice Department had claimed authority

that was not delegated to it.



lUToN 569

Scalia and Thomas dissented. Scalia essentially argued that the AG’s

interpretive rule was a reinterpretation o the earlier regulation, not a reinter-

pretation o the CSA. Thus, he avoided the question o whether the AG wasengaged in changing the meaning o the statute by reinterpreting the regulation.

By denition, an interpretive rule does not change the substantive meaning

o the law and does not have the orce and eect o law. Scalia was arguing

that extending the CSA to cover physician-assisted suicide was not a change

in the law, but it is dicult to see how he would explain that the interpreta-

tion did not have the orce and eect o law. I it did not, the AG could not

prosecute physicians or assisting in suicides—and that was the purpose o

the reinterpretation. Scalia may have allowed his agreement with the policy

preerences o Ashcrot and Gonzales to cloud his reasoning regarding the

legal issues involved in the case. His descriptions o the majority opinion’sconclusions as “demonstrably alse” (p. 4) and “maniestly erroneous” (p.

8) evidenced hostility and a lack o respect or his colleagues. He spoke as

i the majority o the court were so oolish as to make arguments that were

unquestionably wrong. Such verbal bullying is not appropriate in the delib-

erations o the highest court in the land, much less ater the deliberations

have concluded. Congress’s ailure to pass legislation explicitly designed

to include prohibition o physician-assisted suicide should have been given

greater consideration in interpreting the congressional intent expressed in

CSA. Instead, Scalia apparently would allow administrative agencies to

fip-fop on major social policy positions based on the policy preerences not

only o each presidential administration, but o each person appointed to the

position o attorney general.

Thomas’s dissent indicated that he would like to return to a day when

Congress was required to avoid overly broad delegations o authority, but

“that is now water over the dam” (p. 3). In Thomas’s opinion, Congress no

longer needs to be bothered with such matters. Statutory law need not change

to establish major new policies. We can deer to the administrators to decide

what vague concepts such as “the public interest” and “public health and

saety” mean. This is similar to Breyer’s dissenting opinion in FdA . Bwn

an Wiiasn. Both deny the relevance o canon regarding congressional

delegation o authority and coner upon administrators the ability to denetheir own authority simply by asserting it.

“Reinterpreting” to Limit Administrative Authority

massachustts . ePA (2007) is a somewhat dierent example o an administra-

tive presidency strategy. In this case, instead o a presidential administration

attempting to use its interpretive powers to expand administrative authority,

the Bush administration sought not to have the authority o the EPA to regulate

pollution interpreted to include regulation o greenhouse gases.




Justice Stevens wrote the majority opinion in a 5-to-4 decision and held

that the Clean Air Act (CAA) requires EPA to regulate greenhouse gases un-

less it nds that greenhouse gases do not endanger public health. He oundthe statute’s grant o authority to EPA sweeping but unambiguous (p. 26).

Section 202(a)(1) o the statute states that the EPA:

shall by regulation prescribe . . . standards applicable to the emission o

an air pollutant rom an class or classes o new motor vehicles or new

motor vehicle engines, which in [the administrator’s] judgment cause,

or contribute to, air pollution which may reasonably be anticipated to

endanger public health or welare. (p. 25, emphasis added)

EPA contended that various actions and deliberations ater passage o the

CAA by Congress indicated a congressional intention to rerain rom regulat-ing greenhouse gases. Comparing this situation to the one addressed in FdA

. Bwn an Wiiasn, EPA said it needed exacting and specic language

rom Congress to authorize it to regulate greenhouse gases. Congress was

aware o the greenhouse gas issue and had declined to provide new authority

to deal with it; moreover, Congress had put together a regulatory scheme or

“pollutants that depleted the ozone layer” (p. 8)—another upper atmosphere

pollution problem. Stevens, however, interpreted Congress’s actions and

deliberations as indicating their preerence that various administrative agen-

cies collaborate in eorts “to better understand climate change” (p. 27); he

thought they said nothing to indicate that EPA should not regulate greenhouse

gases. He argued that Congress’s delegation o authority to the Department

o Transportation to set mileage standards or motor vehicles (a very likely

approach to reducing greenhouse gases) meant that the two administrative

agencies had overlapping obligations, not that Congress had given to DOT

exclusive authority in that regard. Presumably DOT could set mileage stan-

dards to reduce uel consumption to reduce greenhouse gas emissions. EPA

only has authority over pollution, not over uel consumption. The legislative

history regarding greenhouse gases was neither as directionally clear nor as

extensive as the history regarding tobacco.

With regard to the statutory language about the administrator’s judgment,

Stevens said that it was “not a roving license to ignore the statutory text” (p.30). The only ways that the EPA administrator could avoid regulating green-

house gases were to nd that those gases do not contribute to global warming

and the threats it poses to human health, or to explain why EPA “cannot or will

not exercise its discretion to determine whether they do” (p. 30). He saw these

limits on agency discretion as the intent o Congress. EPA’s reasons or not

regulating greenhouse gases had nothing to do with orming a judgment about

their threat to public health or welare; they related to preerred administrative

approaches to dealing with climate change. Stevens saw those reasons as an

inadequate basis or not acting on congressional intent. The administrator’s



lUToN 571

discretionary decision making must be within the limits o the statute, even i

it contradicts the president’s preerred administrative strategy. EPA’s admin-

istrative authority comes rom Congress, not rom the president.Chie Justice Roberts and Justice Scalia wrote dissenting opinions. Roberts

thought that the petitioners did not have standing to sue and never addressed

the merits o the case. Scalia agreed with Roberts, but dissented on the merits

as well. He thought that the administrator was not obligated by the CAA to

determine whether greenhouse gases pose a threat; he considered that obli-

gation an invention o the majority opinion. Again, the relevant language in

the CAA is:

shall by regulation prescribe . . . standards applicable to the emission

o any air pollutant rom any class or classes o new motor vehicles or

new motor vehicle engines, which in his judgment cause, or contributeto air pollution which may reasonably be anticipated to endanger public

health or welare. (p. 1)

Scalia saw nothing in this language that required the EPA administrator to orm

a judgment. Again, the sincerity o that interpretation can be questioned. “Sha

by regulation prescribe . . . standards applicable to any air pollutant . . . which in

his judgment” clearly places making a judgment a precondition or prescribing

standards. Action and inaction both presume a judgment. An administrator

cannot simply avoid a congressionally imposed responsibility by ailing to

attend to it. Otherwise congressional intent means nothing.

Moreover, in Scalia’s opinion, administrative policy preerences should

have been sucient reason or the EPA’s decision not to use its resources

to determine whether or how to regulate greenhouse gases: “the statute says

nthing at a about the reasons or which the administrator may deer making

a judgment” (pp. 4–5, emphasis in the original). The uncertainty regarding

causes o global warming that EPA cited in its reasons or not taking action,

he said, should be sucient reason to rerain rom making such determina-

tions. In addition, he considered the dierences between the air pollutants

that EPA had traditionally regulated (those having impacts near ground level)

and those related to global warming to be sucient reason or EPA to resist

pressure to regulate them. In sum, Scalia read the CAA as having given broaddiscretion to EPA, not as requiring the agency to take action. He thought the

majority opinion substituted the court’s policy preerences or those o the

administration, but the court’s decision was not based on the wisdom o the

administrator’s policy preerences. It was based on the dispositive language

in the statute—on a policy decision made by Congress. The policy dispute

was between Congress and the Bush EPA. Bush’s election did not change

congressional policy. I Bush wanted to change the policy, he should have

taken action to amend the CAA.

This nal case, then, diers rom the earlier ones most signicantly in




whether the administration was expanding its reach. The administrative

presidency statute reinterpretation strategy, as has been shown, can be utilized

to enhance or to reduce administrative authority. However, in all our casesreviewed in this paper, the majority o the court recognized that Congress’s

intentions should be those that determine general social policy in this country.

I we can agree that Congress, not administrators, should decide major policy

issues, what Congress has intended may remain a point o contention; but at

least we would be engaged in the kind o dispute that honors the relationships

among governance institutions. As the last case shows, however, there also

remains a dispute about the proper role o the court. A court’s interpretation o

congressional statutes may well be characterized as policy-making, not policy

interpretation. But that dispute is beyond the scope o this article.

ConCLUSIon

When presidential administrations pretend to nd new administrative author-

ity by reinterpreting a statute, they are engaging in an abuse o administra-

tive discretion. This abuse is a serious threat not only to the legitimacy o

administrative law but also to the legitimacy o our constitutional system.

O course, members o all three branches and policy-level administrators are

required to interpret the laws, but reinterpretation is a dishonorable way o

trying to change the law. It shows disrespect or the other branches and can

destroy the trust that is necessary or our governance system to work. The

problem identied in this article is more serious than Lowi’s (1987) concern

about “legiscide.” In legiscide, Congress has granted broad discretion to

administrators. In reinterpreting, administrators have insincerely claimed (or

denied) authority.

Rorty described law as a “paradigmatic project o social cooperation”

(2007, p. 35). Administrative presidency strategies that include attempts to

change major social policy without changing statutes undermine the social

cooperation needed to legitimate decisions about major social policy. Though

we may sympathize with an administration regarding the challenges they ace

in getting major policy changes through Congress, that remains the established,

socially cooperative way to institutionalize major social policy. Presidentialadministrations gain political points with interest groups and their constitu-

encies by initiating changes through administrative action, but when these

actions exceed the limits o congressionally granted authority, they weaken

the Constitution. They also ail to provide a rm oundation or their new

policy because the next administration can use the same approach to reverse

the action. For major policy initiatives to last, they need to have a statutory

basis, and they need to have earned their legitimacy by running the gauntlet

o the nely wrought procedure ound in the Constitution or passing laws

(see Iigatin an Natuaizatin Sic . Chaha, 1983).



lUToN 573

As the cases reviewed in this paper demonstrate, the Supreme Court remains

a protector o the constitutional process or making major public policy deci-

sions, but the number o cases it can review is limited, the votes have beenclose ones, and its members have been inconsistent in their positions with

regard to the abuse o presidential administrative discretion.8 Absent protec-

tive judicial review, presidential administrations might be able to expand or

constrict the authority o executive and administrative agencies at will. As

presidential administrations continue to utilize reinterpretation as a power

move, it could become a sedimented habit. The governance community needs

to reject this administrative presidency strategy as an unacceptable abrogation

o accepted patterns o social cooperation. The Supreme Court cannot on its

own adequately protect us rom this abuse. Abuse o presidential administra-

tive discretion is not just a legal problem; it is a political, governance, andsocial problem.

Presidents should not sacrice the Constitution, institutional integrity, and

time-honored relations among the branches o government or short-term

policy and political advantages. Presidents need to recognize the past and care

or the uture. Short-term strategies lead to ephemeral gains. In the long run,

the institutional interests o the executive, legislative, and judicial branches

are to keep all three branches healthy in the use o their separate powers and

in their mutually complex checks and balances. Public administrators may not

have been specically mentioned in the Constitution, but they do have a stake

and a role in its preservation; and its preservation depends on some degree o

trust that we will treat each other respectully. Executives, legislators, judges,

and administrators all need to resist the temptation to promote their policy

preerences through insincere claims about their authority. We should not be

willing to sacrice our governance system or the thrill associated with victory

(or even a series o victories) in a specic policy dispute.

noTES

1. Although my interest in this topic was heightened by the Bush/Cheneyadministration’s abusive assertions o authority, this article does not ocus on those

abuses. Instead, it looks at a practice that helped to set a pattern that acilitatedthe weak and tardy response to those assertions. In my opinion, i the governancecommunity ocuses on and rejects only the Bush/Cheney extreme claims o executive and administrative authority, we will have ceded new authority to thepresident in ways that will work to the detriment o our democracy.

2. Cooper (2002) dened counterstang as “a process o deliberatelyappointing to agencies people who have very dierent policy views” rom thoseassociated with the mission o the agency (p. 248 n3). Examples would includeappointing James Watt as secretary o the interior, appointing John Bolton asambassador to the United Nations, and appointing attorneys to the civil rightsdivision o the Justice Department who are not sympathetic to the goals o theCivil Rights Act.




3. Chn (1984), Na (1996), Ski (1944), and Unit Stats . ma (2001) may be seen as creating a range o levels o deerence the court may grant

to administrative agencies. It could be that the courts are only obligated to treatan administrative interpretation as one expert opinion worthy o consideration, orit could be that courts are obligated to accept an administrative interpretation aslong as it is a reasonable interpretation o the statute. A presumption o deerencemight be trumped by an earlier court decision, or it might be qualied by thedegree to which it is clear that Congress expected the agency to ll in the gaps,or limited by the kind o process utilized by the agency to adopt the policy/ interpretation.

4. A similar concept, called the presidential control model, has been thesubject o some discussion in law review journals (e.g., Farina, 1997; Bressman& Vandenburgh, 2006).

5. The resolution o the lujan case hinged on standing issues rather than issues

related to administrative authority. Nonetheless, the acts that caused the petitionersto le suit contain a story o typical administrative presidency behavior.

6. To be more precise, in dpatnt Cc . U.S. Hus rpsntatis the court was divided along more complex lines, concurring anddissenting with respect to dierent parts o the opinion. With respect to partIII-A, the part central to the issue addressed in this paper, the split was 5 to 4.

7. I do not mean to dismiss the diculties involved in ascertainingcongressional intent. As Scalia (1989) pointed out, the quest may at least eellike a wild goose chase, but (and here I may disagree with Scalia) the purposethat should guide any interpreter should be to try to ascertain Congress’s intent,not to look or ways to justiy his or her own policy preerences.

8. It has been suggested that the our cases described in this article could

be interpreted as evidence that the judicial branch is a reliable check on thiskind o attempt to expand executive power. I am not so optimistic, or severalreasons. First, in three o the our cases, the decisions were based on 5-to-4 votes. So, most o the time this issue hangs on one vote. Second, o thethree justices who voted with the majority in all o the cases in which theyparticipated (O’Connor, Rehnquist, and Kennedy), two are no longer on thecourt. Third, the two newest justices (Roberts and Alito) voted with the dissentin every case in which they participated. Finally, in the cases reviewed in thispaper, six justices voted with the majority twice and with the dissent twice.The court’s continued deense o this aspect o the constitutional balance is,thereore, quite uncertain.

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Larr S. Lut is a proessor o public administration at Eastern Washing-ton University. His research interests include research approaches in publicadministration, environmental policy administration, public administrationhistory, and administrative law.



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Administrative “Interpretation” as Policy-Making

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