Today’s Ad Law Reading Room entry is “Presidential Control and Administrative Capacity,” by Nicholas Bednar, which is forthcoming in the Stanford Law Review. Here is the abstract:

Presidential control is the power to direct administrative capacity toward the president’s own policy objectives. Accordingly, presidential power vis-à-vis administrative policymaking has two necessary components: control and capacity. First, the president must have the ability to set the agency’s policymaking agenda and direct the day-to-day activities of its leadership and career employees. Second, agencies need well-managed teams of policymakers with expertise and experience in both the substantive policy area and the policymaking process. Yet scholars have long assumed—without much empirical testing—that the administrative state has sufficient capacity to implement the president’s agenda. Not so.

This Article argues that insufficient capacity prevents presidents from achieving their policy agendas and faithfully executing the law. Its goal is to encourage scholars, policymakers, and judges to engage more with capacity as a constraint on presidential action. Drawing on a survey of federal executives engaged in rulemaking, a dataset of over 190 million federal personnel records, and a dataset of over 5,000 rulemakings from three presidencies, it contributes three core findings to our understanding of presidential power. First, new measures of capacity show wider variation across federal agencies than people often assume. Second, a new survey of federal executives shows that presidents and their proxies have the greatest degree of control over agency rulemaking agendas. Third and finally, multivariate models demonstrate that a low-capacity agency is less likely to complete a rulemaking than a high-capacity agency, controlling for factors that influence both presidential control and presidential priorities. Most importantly, presidents struggle to implement their agendas in low-capacity agencies regardless of whether they have significant control over those agencies. Traditional markers of presidential control prove ineffective in low-capacity agencies, and, therefore, control and capacity are complements—not substitutes.

The results have strong implications for existing theories of presidential power. Strong adherence to unitary executive theory may have the unintended effect of weakening the president’s ability to ensure the faithful execution of the law by eroding administrative capacity. Instead, presidential power requires an appropriate balance of presidential control and administrative capacity. But control and capacity are in tension with one another. As presidential control increases within an agency, the agency may struggle to hire expert and experienced employees. Building a strong and efficacious presidency requires shifting the balance toward effective management, away from efforts to reduce structural insulation within agencies. The Article concludes by suggesting that presidents—not the Supreme Court—have a better sense of how to strike the balance of control and capacity to best preserve their own power.

“Presidential Control and Administrative Capacity” is simply a really good article. It’s also a fun read, which is all the more impressive given its comprehensiveness and sophistication. Bednar manages both to contribute to two distinct literatures—on administrative capacity and on presidential power—and to bring those two literatures into conversation with each other. The result is an article brimming with insights into how capacity constraints shape what presidents can do with the administrative state they inherit. One particularly interesting implication of Bednar’s findings is that reforms designed to increase presidential control may decrease administrative capacity and actually diminish the president’s overall power to influence policy. Download “Presidential Control and Administrative Capacity.” Bring it to the beach. You won’t be disappointed.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.