Coherent Identifier About this item: 20.500.12592/10dqfd

The Administrative Presidency Encounters Opportunistic Federalism

6 January 2022

Summary

The Trump administration had broad and far‐​reaching policy ambitions, but never had much of a legislative agenda. Building on the practices of his predecessors, Donald Trump relied upon the executive power and presidential control of the administrative state to push policy change. This eliminated the need to seek policy consensus, but also made policy changes legally brittle and easy to undo. Such are the consequences of rule by administrative presidency.In many respects, the administrative presidency came of age during Bill Clinton’s administration. While prior presidents had sought to assert greater White House control on the federal bureaucracy, Clinton crossed a Rubicon of sorts. As Justice Elena Kagan chronicled in her 2001 Harvard Law Review article “Presidential Administration,” the Clinton White House sought to make federal agencies “an extension of the President’s own policy and political agenda.” Once his political party lost control of Congress following the 1994 election, Clinton relied upon administrative processes to pursue reforms across a wide range of policy areas. Where Congress refused to act in accord with administration priorities, Clinton instructed the bureaucracy to act. To make such efforts effective, the administration exercised greater oversight of agency actions, centralizing power and decision making in the White House.Subsequent presidents have expanded upon the Clinton precedents, strengthening White House control of administrative agencies through centralized review of administrative action. When Barack Obama announced he had “a pen and a phone,” he was acknowledging the political reality of presidential administration. Against this background (and given his authoritarian impulses), it was unsurprising that Trump thought he had the full bureaucracy of the executive branch at his disposal, to push his policy agenda.The rise of presidential administration, and its consequences for separation of powers within the federal government, has been the subject of extensive study by political scientists and legal academics. Less explored has been the effect of these trends on American federalism. Previous studies have considered the implications for interbranch relations, but few (if any) have plumbed the effects on federalism, particularly in those spheres in which much policy implementation is handled by state and local governments.Trump, the Administrative Presidency, and Federalism seeks to fill that gap. In this book, Frank Thompson (Rutgers University), Kenneth Wong (Brown University), and Barry Rabe (University of Michigan) focus on how presidential administration affected federalism during the first three years of the Trump administration. Specifically, they examine how his White House’s approach to administration affected and exploited federal–state relations, with a particular focus on those policy areas within each of their distinct expertise: health care, climate change, and education.Disabling previous policy / The Trump administration’s policy agenda departed significantly from that of its predecessor. Perhaps more significantly, the administration sought to push policies at odds with longstanding agency practices and missions. Accordingly, the authors characterize the Trump effort as something of a “hostile takeover.”In two of the areas under study, climate and health care, Trump’s aim was less to reorient the federal government’s focus than to disable it. His administration did not merely seek to reorient health care policy; rather, it sought to “sabotage” Obama’s signature Affordable Care Act through administrative interpretations and waivers that would enable states to depart from the legislation’s aim of expanding federally prescribed insurance coverage. As these aims were accomplished neither through legislative enactment nor judicial fiat (as the administration sought), they are unlikely to last now that Trump is out of the Oval Office.The focus on climate change is particularly interesting because, in the absence of federal climate legislation, all meaningful climate policy has been developed within the executive branch (with the occasional assist from the courts). Under Obama, the Environmental Protection Agency developed a series of climate policies designed to reduce emissions of greenhouse gases. As there were few express statutory mandates to contend with, it was relatively easy for the Trump administration to reverse these efforts through what the authors characterize as a “search and destroy” mission — at least temporarily. But delay was all that was accomplished because little was done that the Biden administration cannot undo through the same administrative levers — if the courts do not toss out Trump’s actions first.Opportunistic federalism / A theme that emerges from the study is that federalism concerns were, in and of themselves, no more than ancillary to the Trump administration’s agenda. The occasional rhetoric of administration officials notwithstanding, there was no principled or consistent approach to federal–state relations. The administration sought to give states more authority where states were expected to align themselves with administration policies, while constraining state authority if states might pursue a different course. Any principled concern for state autonomy took a back seat to partisan political objectives. This was not cooperative federalism so much as “opportunistic federalism.”In addition to highlighting the brittle nature of administrative presidentialism, this book highlights the gulf between federalism rhetoric and practice in modern American governance. States are celebrated and given voice so long as they stay on the right team. Waivers and other administrative measures remain potent tools through which an administration can reward its allies and frustrate its opponents, but they are not the basis upon which to build a principled or stable federal–state relationship.Although completed before Joe Biden’s election, Trump, the Administrative Presidency, and Federalism helps explain why so little of the Trump regulatory agenda produced lasting change. Administrative opportunism may be politically convenient, but it can only accomplish so much. If future administrations want to chart a new course, particularly in those areas in which federal–state relations matter, they might have to turn away from presidential administration and relearn how to pursue meaningful legislation

Authors

Jonathan H. Adler
Professor of Law, Case Western Reserve University