105 Mich. L. Rev. 47 (2006-2007)
Inside the Administrative State: A Critical Look at the Practice of Presidential Control

handle is hein.journals/mlr105 and id is 65 raw text is: INSIDE THE ADMINISTRATIVE STATE: A CRITICAL LOOK AT THE PRACTICE OF PRESIDENTIAL CONTROL Lisa Schultz Bressman* Michael P. Vandenbergh** From the inception of the administrative state, scholars have proposed various models of agency decison-making to render such decison-making accountable and effective, only to see those models falter when confronted by actual practice. Until now, the presidential control model has been largely impervious to this pattern. That model, which brings agency deci- son-making under the direction of the president, has strengthened over time, winning broad scholarly endorsement and bipartisan political sup- port. But it, like prior models, relies on abstractions-for example, that the president represents public preferences and resists parochial pressures- that do not hold up as a factual matter. Although recent empirical analyses purport to validate the model, they fall short because they examine how the White House exercises control without considering how agencies experi- ence control. This Article is the first to study the practice of presidential control from inside the administrative state. We interviewed the top politi- cal officials at the Environmental Protection Agency from the George H. W. Bush and William J. Clinton administrations during 1989-2001. Our data, which do not vary substantially between respondents of different presiden- tial administrations, suggest that White House involvement is more complex and less positive than previous accounts acknowledge. But we do not conclude that the presidential control model lacks merit. Indeed, our respondents recognize that the president has a role to play in controlling agency decision-making. We therefore conclude that the presidential con- trol model requires reworking to remain valid in practice as well as in theory. We identify next steps in that direction. * Professor of Law, Vanderbilt University Law School. ** Professor of Law, Vanderbilt University Law School. We would like to thank Brooke Ackerly, Jim Blumstein, Linda Breggin, Michael Bressman, Mark Cohen, Paul Edelman, Nita Fara- hany, John Goldberg, Owen Jones, Nancy King, Stephanie Lindquist, Bob Martineau, Richard Nagareda, Erin O'Hara, Suzanna Sherry, and Ken Wallston for helpful comments. We would like to thank participants at the Administrative Law Section's Empirical Work in Administrative Law: Policy and Scholarship panel at the 2006 AALS Annual Conference, and faculty workshop partici- pants at Comell Law School, Texas Law School, and Vanderbilt Law School. Finally, we would like to thank Stephanie Frazee and Lauren Kearney for excellent research assistance.

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