• Presidential Maladministration

    Michael Sant\'Ambrogio
    MSU Law Faculty Repository
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    Following her service in the Clinton administration, then-Professor Elena Kagan wrote, "[w]e live today in an era of presidential administration."' Kagan argued that while Congress, the bureaucracy, and interest groups all continued to influence federal regulatory policy, the president had assumed a position of comparative primacy vis-A-vis these other actors.2 Although some were troubled by strong presidential control over the discretion delegated to federal agencies by Congress,3 Kagan maintained that the tools used by President Clinton to influence federal agencies would enhance the political accountability and effectiveness of regulatory policy.4 Clinton's increased use of formal directives to agency heads-which shaped their regulatory agendas, spurred them to action, and nudged them towards his preferred policies-and his public appropriation of regulatory decisions as an extension of his own policymaking goals rendered government policy more transparent and accountable.5 By publicly asserting ownership of agency action, Clinton made clear who to credit or blame for government policy.6 In addition, Kagan argued the president's participation in regulatory agenda setting would improve the effectiveness and dynamism of federal agencies.7 Agencies would be more likely to act expeditiously to solve national problems, and act in a way that was effective and rational.' Finally, a president seeking to grow his base would advance policies supported by the general public rather than parochial private interests, thus promoting democratic norms.9 Although Kagan recognized that presidents would not always highlight their role in policymaking, and would sometimes serve narrow interests, Kagan posited that when presidential control was highly publicized, the resulting government policy would be more representative of the broader electorate than policies shaped by Congress, the Judiciary, the bureaucracy, or interest groups.10
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