This spring, I had the pleasure of participating in the Yale Journal on Regulation conference on “Regulatory Change & the Trump Administrative.”  I was honored to be a speaker on the “Changes in Administrative Law in the Executive Branch” panel, along with Professors Gillian Metzger (Columbia) and Bridget Dooling (George Washington).   Our moderator was Professor Nicholas Parrillo (Yale).  This post is based on my remarks, which were drawn from Part II of my article “Executive Administration,” forthcoming in the Stanford Law Review.

It’s well-known that presidents seek to shape and control the activity of administrative agencies, particularly executive (or cabinet) agencies.  Now-Justice Elena Kagan famously called this paradigm “presidential administration.”  However, as Kagan herself conceded, “[t]he existence of independent agencies poses a particularly stark challenge to the aspiration of Presidents to control administration.”

Indeed, the President’s ability to influence independent agencies is quite limited.  Unlike her power over her cabinet, the President has very little informal clout over independent agency commissioners.  And as all students of administrative law know, the heads of independent agencies can only be removed by the President for good cause.  That at having been said, recent activities by the Trump administration have highlighted another way for Presidents to sway what independent agencies do.  More specifically, the President may affect what independent agencies do by suing them.

Professor Jon Adler calls “the Justice Department opposing a federal agency before the court” an “unusual situation,” but my article suggests otherwise.  From the mid-twentieth century through the present day, the Department of Justice (DOJ) has brought cases, used litigation strategies and submitted briefs against independent agencies, sometimes even for purposes of presidential administration.  In that vein, presidents as far back as Truman have directed the DOJ to bring suit against independent agencies to further their own aims.

There are a few ways litigation involving an independent agency could benefit a President’s goals.  First, the DOJ can diminish or dispute the scope of an independent agency’s authority in an Article III court.  For example, President Reagan directed his Solicitor General to exclude the views of the Equal Employment Opportunity Commission (EEOC) from litigation brought ostensibly on the EEOC’s behalf before the Supreme Court.  As Professors Neal Devins and Michael Herz note, the Solicitor General did so primarily “due to the interests of the Reagan White House, which opposed affirmative action.”  Under President Trump, the DOJ filed a brief seeking to overturn a determination made by the EEOC about the scope of Title VII protection, in furtherance of the administration’s anti-civil rights agenda.  In addition, the DOJ submitted another brief in pursuit of limits to the authority of the National Labor Relations Board (NLRB), in keeping with Trump’s “employer-friendly” orientation.

Second, the DOJ can ask the court to reduce the insulation of independent agencies from the President.  For example, Reagan tried to exercise at-will removal of independent agency commissioners in the Civil Rights Commission.  Ultimately, “the President’s claim that he had unlimited discretion to remove the Commissioners was unsuccessful” in court.  More recently, Trump directed the DOJ to argue that for-cause removal of the Director of the Consumer Financial Protection Bureau (CFPB) is unconstitutional.  (Interestingly, after having appointed his own Director, Trump is no longer asking the DOJ to take a position against the CFPB in the appeal of this case.)

There are at least a few noteworthy dynamics at play here.  First, two Presidents with explicitly deregulatory agendas and a significant interest in augmenting their own power—that is, Reagan, and Trump—have also employed somewhat aggressive litigation strategies for curbing independent agencies.  Second, under Trump, the DOJ has involved itself unnecessarily in litigation involving an independent agency and a private party.  This all suggests that litigation could be an appealing tool of presidential administration to those who advocate for a strong or unitary executive.

So what to make of all this?  In other words, is the White House’s interest in litigating independent agencies a good thing or a bad thing?  One way to answer this question is by determining whether litigation improves or interferes with the proper functioning of independent agencies.

For one, this litigation bears on the relationship between the President and independent agencies within the executive branch.  On the one hand, scholars such as Cary Coglianese and others have argued that additional presidential oversight would improve the quality of independent agencies’ actions by holding these agencies more accountable.  As I noted at the beginning of this post, the President has very few ex ante means for influencing independent agencies.  Therefore, litigation could offer an option, albeit one that is ex post and ad hoc at best, for presidential oversight of independent agencies.  On the other hand, the pressure of litigation could reduce the insulation of independent agencies from the President, and therefore adversely impact their ability to further their mandates with nonpartisanship, impartiality and expertise.

Arguably, litigation brought by the executive branch against independent agencies is a celebration of agency independence and limits to presidential power.  Given that litigation is a forum of last resort, and one that requires the President to cede power to the judiciary, the fact that the President has resorted to it shows how few options are available for subverting independent agencies.  But for those concerned with presidential aggrandizement, it is worth noting that litigation could become a mechanism by which the President concentrates power at the expense of independent agencies.

In addition, this litigation has implications for the separation of powers.  For instance, by using litigation to circumscribe the authority of independent agencies, the President could infringe on Congress’s power to determine agency jurisdiction and protect administrative autonomy.  However, this litigation also affirms judicial supremacy in administrative statutory interpretation. Unlike modes of influencing independent agencies that originate in the executive branch, litigation is conducted in a judicial forum.  This means that courts can curb the potency of litigation as a mechanism of presidential administration.

Thus far, the judiciary has rebuffed most attempts to use litigation as an overt tool for a President’s deregulatory aims or policy agenda.  Then again, these types of cases may become more successful with the appointment of new judges who are in favor of enhancing the President’s power and maintaining their own, including the two newest members of the Supreme Court.  More to the point, Justice Gorsuch sided with the DOJ against the NLRB, and now-Justice Kavanaugh wrote a panel opinion while on the D.C. Circuit stating that the CFPB’s for-cause removal structure is unconstitutional (although his decision was reversed en banc).

Litigation is burdensome and resource-intensive.  Nonetheless, the President may continue to pursue this avenue for furthering his goals of administration.  After all, he has few other options for exerting control over independent agencies and litigation seems to be a more promising route now than ever before.

Bijal Shah is an Associate Professor of Law at Sandra Day O’Connor College of Law, Arizona State University.