A Pen, a Phone, and the U.S. Code
Citation: 103 Geo L.J. Online (2016)
This Essay concerns a fact and a problem that bedevil modern government. The fact is that, as a society, we rely—deeply and pervasively—on administrative agencies to fix our troubles. By law, we place problems like air pollution, water pollution, climate change, toxic chemicals, food hazards, workplace risk, consumer deception, and more at the doorstep of administrative agencies and say to the agencies: please fix this, will you? The problem is that we often do not let them do their jobs. The result is a vast gulf between the promises of law and the realities we face.
The constraints on agencies and agency personnel take many forms. We slash their budgets, harass them in congressional hearings, nitpick their reasoning to death in the courts, and paralyze them with endless analytical prerequisites to taking action on the problems they are charged with addressing.
Here I would like to discuss just one of the constraints on agencies: White House control over agency decisionmaking. President Obama started this year with a metaphor: “I’ve got a pen, and I’ve got a phone,” the President said. What he meant is that even without action from Congress, he would use executive orders (the pen) and his convening power (the phone) to get things done. Critics of the Administration described the strategy as one of “bypass[ing]” Congress when Congress fails to act. Picking up the pen and the phone would, according to the President and his aides, lead to a “year of action” on priority issues.
I will suggest, however, that presidential power is deployed as often to delay or stop agency action as to prompt it. I will suggest that the President—and his aides—should, more often, put down their pens and their phones and let the agencies do their work. The Administration can get a whole lot done not by “bypassing” Congress but by following instructions laid down in statutes Congress has already passed. From this perspective, the President and his aides have much more than a pen and a phone to work with; they also have just about the entire U.S. Code. The hitch is that the Code brings with it limits as well as power.