Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law

A contradiction about the role of the President has emerged between the Roberts Court’s Article II jurisprudence and its major questions doctrine (MQD) jurisprudence. In its appointment and removal decisions, the Roberts Court claims that the President is the “most democratic and politically accountable official in Government” because the President is “directly accountable to the people through regular elections,” an audacious new interpretation of Article II of the U.S. Constitution. Tight presidential control of agency officials, the Roberts Court argues, lends democratic legitimacy to the administrative state. We identify these twin arguments about the “directly accountable president” and the “chain of dependence” as the foundation of “Roberts Court presidentialism.”

Meanwhile, each of the major questions policies over the past three decades is the product of the “directly accountable president” and the “chain of dependence” in action: presidents campaigning on the policy, directing agencies to adopt the policy, and then publicly taking credit and responsibility for the policy. Nevertheless, the Roberts Court has almost always ignored the President’s role in major questions policies and instead blamed the agency for overstepping its delegated power. The erasure of presidential involvement serves the Court’s narrative of blaming “unaccountable bureaucrats,” rather than either granting the policy more democratic legitimacy for its presidential backing or holding the President accountable for overstepping the separation of powers. The erasure suggests that the Court has an underlying ambivalence or anxiety about the problems of presidential power, which Roberts Court presidentialism has exacerbated. Ironies abound: the Court relies on a theory of presidential accountability, but then retreats from holding presidents accountable; it expands the power of unaccountable judges based on a narrative of “unaccountable bureaucrats.”

The rule of law requires consistent reasoning. We suggest doctrinal opportunities to resolve the contradictions between the Roberts Court’s Article II presidentialism and its major questions’ erasures of presidents, including: appointment and removal doctrine; the contours of the MQD and its potential extension to statutory delegations of authority to the President; the future of Chevron deference; and the application of the non-delegation doctrine. The Roberts Court can untangle the “chain of dependence” with more consistency in either direction, but perhaps the most important lessons from these contradictions are recognizing the value of judicial restraint and acknowledging the costs of direct presidential power over agencies, not just the benefits.