Agency Self-Insulation Under Presidential Review

Jennifer Nou

Agencies wield enormous discretion when deciding how to regulate. This discretion allows executive branch agencies to insulate their decisions from presidential review by raising the costs of such review. They can do so, for example, through variations in policymaking form, cost-benefit analysis quality, timing strategies, and institutional coalition-building. This Article seeks to help shift the literature’s focus on court-centered agency behavior to consider, instead, the role of the President under current executive orders. Specifically, it marshals public choice insights to offer an analytic framework for what it calls agency self-insulation under presidential review, illustrates the phenomenon, and assesses some normative implications. The framework generates several empirically-testable hypotheses regarding how presidential transitions and policy shifts will influence agency behavior. It also challenges the doctrinal focus on removal restrictions, and highlights instead a more functional understanding of agency independence. Finally, these dynamics suggest that courts and Congress should serve to facilitate political monitoring by encouraging information from sources external to the presidential review process, and to help enforce separation-of-powers principles within the executive branch.