Presidential Administration in the Obama Era

Abstract

This essay, prepared for a conference on the Obama presidency and the Supreme Court held in Berlin in October 2016, surveys what presidential administration has looked like in the Obama era, and how the President’s leadership of the executive branch has been received in the Supreme Court. There is little that is really new in how President Obama has used the executive branch to pursue policy priorities; rather, his administration has deployed and developed techniques pioneered by previous presidents. Many of the techniques of presidential administration evade judicial review, although the Supreme Court has pushed back directly against President Obama’s leadership of the executive branch on occasion. Less dramatically, the Court has developed administrative law doctrines in ways that gently amplify judicial scrutiny of executive branch decision making, by trimming back on deference to agencies and insisting that they consider costs before regulating. Arguably, these developments contribute to a subtle reequilibration of the separation of powers, as the White House seeks to make policy administratively where it may, and the Court works to hold the line on executive branch aggrandizement where it can.