In this short symposium contribution, I attempt first to add some further evidence on the interpretive question. That evidence weighs strongly, in my view, in favor of Kagan's conclusion that the terminology does not communicate any particular congressional intent regarding presidential directive authority. Assessed in context, the "whole code" textual analysis presented by Stack does not justify the conclusion that Congress, by delegating to an executive branch official, meant to limit presidential control. Independent agencies excluded, interpreting the terms of simple and presidential delegations to speak to directive authority fails, in general, to make sense of the various statutes. Absent any special legislative context, the most reasonable interpretation of these words is that neither a presidential delegation nor a simple delegation to an executive agency speaks to presidential directive authority. Instead, Congress's intent in delegating to the President appears to be simply to convey the additional power to choose which executive branch agency official will be primarily responsible for carrying out a statutory delegation. Moreover, even if simple delegations could be interpreted to limit presidential directive authority, it is unclear that the interpretation would have the claimed beneficial effect of increasing the resistance of individual agency officials to White House pressure. Policy matters and the legitimacy of White House control weigh heavily in Kagan's arguments as well as in the arguments of Robert Percival, Stack, Strauss, and Thomas Sargentich. I conclude with a few observations on the normative debate on presidential control. I also suggest that we put aside the interpretive arguments and focus instead on greater disclosure of the content of that control. Disclosure may be particularly helpful not only in helping us resolve the legitimacy of presidential direction, but also in informing clearer legislation.
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Mendelson, Nina A. "Another Word on the President's Statutory Authority Over Agency Action." Fordham L. Rev. 79, no. 6 (2011): 2455-85.