Harvard Law Review
Jody Freeman and Sharon Jacobs, Structural Deregulation, 135 Harv. L. Rev. 585 (2021), available at https://scholar.law.colorado.edu/faculty-articles/1395.
Modern critics of the administrative state portray agencies as omnipotent behemoths, invested with vast delegated powers and largely unaccountable to the political branches of government. This picture, we argue, understates agency vulnerability to an increasingly powerful presidency. One source of presidential control over agencies in particular has been overlooked: the systematic undermining of an agency’s ability to execute its statutory mandate. This strategy, which we call “structural deregulation,” is a dangerous and underappreciated aspect of what then-Professor, now-Justice Elena Kagan termed “presidential administration.”
Structural deregulation attacks the core capacities of the bureaucracy. The phenomenon encompasses such practices as leaving agencies understaffed and without permanent leadership; marginalizing agency expertise; reallocating agency resources; occupying an agency with busywork; and damaging an agency’s reputation. Structural deregulation differs from traditional “substantive” deregulation, which targets the repeal of particular agency rules or policies. While substantive deregulation may have serious consequences, it is relatively transparent, limited in scope, and subject to legal challenge. By contrast, structural deregulation is stealthier. It is death by a thousand cuts.
We argue that structural deregulation is in tension with constitutional, administrative, and democratic norms. Nevertheless, public law is remarkably ill-equipped to address it. Constitutional and administrative law both have blind spots when it comes to presidential management of the bureaucracy, especially when the President’s mission is incapacitation. Specific statutes meant to protect the civil service or inoculate agency budgets from presidential control do not help much either — they are vulnerable to workarounds. These blind spots and workarounds have allowed structural deregulation to flourish as a method of presidential control, with serious consequences for the future of the administrative state. We therefore propose legislative and regulatory reforms that could help to control the risks of structural deregulation.
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