Katz on All Roads Leading to the White House: Building Our Presidential Regime of Statutes in Early Modern America (1868-1921) @WashULaw @ascoseriakatz @WUSTL

Andrea Scoseria Katz, Washington University in St. Louis School of Law, has published All Roads Lead to the White House: Building Our Presidential Regime of Statutes in Early Modern America (1868-1921). Here is the abstract.

At the very moment that the Roberts Court places the Chevron doctrine within its sights, it is worth remembering that behind Chevron's rule of judicial deference toward agency discretion lies an institutional settlement that has structured American governance for approximately one hundred and thirty years. Its roots lie in the period from 1868-1921, and its defining values are presidential lawmaking, administrative expertise, and interbranch problem-solving. This Article proposes to tell its story. A century and a half ago, America was just healing from its Civil War wounds when a host of new problems descended: financial crisis, unemployment, the rise of monopolies, political corruption, and waves of urban migration and immigration. Something had to be done, and so the nation revamped its hundred-year-old institutions to make them quicker, responsive, and more powerful. American government became modern. It became, in sum, a presidential democracy. This process began with executives, as early Gilded Age governors and presidents wielded the veto and the bully pulpit to build reputations as popular heroes. Soon, Congress followed with a host of statutes that gave the President unprecedented new authority: to, among other things, set aside lands for conservation; prescribe tariffs and railroad shipping rates; break up monopolies; and set down national priorities in the federal budget. They built an executive able to set policy on its own-a modern president, in other words. Crucially, the Supreme Court gave this regime its blessing in a series of cases upholding the constitutionality of these interbranch compromises. This presidential regime of statutes brought Congress, the President and powerful independent agencies closer together in a negotiated policymaking process involving multiple stakeholders. By trading formal separations and congressional primacy for interbranch cooperation, it proved a success in freeing up government power to solve the nation's problems, especially during two world wars and the Great Depression. Beginning in the late '70s and recently accelerating under the tenure of Chief Justice John Roberts, a formalist Supreme Court has turned on this settlement, rolling back statutory arrangements that gave Congress a role in overseeing administration or that mandated agency independence. The present assault on Chevron is typical. However, separation-of-powers formalism raises several dangers. Not only does it threaten to leave the government without power to meet new challenges and crises, it also risks weakening Congress further, freezing in place the President's powerful agencies with no countervailing mode of legislative oversight or administrative counterweight. Behind modern American government lies a "regime of statutes," a finely wrought settlement designed not only to release power, but also to contain it. We upset this balance at our peril.

Download the article from SSRN at the link.