Presidential Administration in a Polarized Era

You can view the research papers and video recordings from this event below.

Friday, October 1, 2021

When Elena Kagan published her article on “Presidential Administration” twenty years ago, she analyzed history but also helped to shape constitutional doctrine and narrative in the years to come. Since then, debates over presidential power in the administrative state have become even more nuanced and interesting—and also more urgent. And as political polarization has increasingly exaggerated the pendulum swings of regulatory policy, we face new questions of presidential administration, alongside timeless questions of presidential power.

The twentieth anniversary of now-Justice Kagan’s article was the natural time to look back at recent debates, and to look forward at possible paths for reform. To that end, the Gray Center first hosted a research roundtable to discuss seven new working papers on various aspects of presidential administration. The authors discussed their papers with other scholars, and then they presented their papers on panels with commentary from other experts at this conference.

We were also joined by two authors of recent books on presidential power: Saikrishna Prakash, author of The Living Presidency: An Originalist Argument against Its Ever-Expanding Powers, and John Yoo, author of Defender in Chief: Donald Trump’s Fight for Presidential Power. Copies of the books were given out at the event.

Agenda

All sessions were held in the Decatur House’s Carriage House (1610 H St NW, Washington DC 20006)

8:15 – 9:00 am – Registration & Breakfast

9:00 – 9:10 am – Welcome

Christopher J. Walker, John W. Bricker Professor of Law, Moritz College of Law, The Ohio State University
Adam White, Co-Executive Director, The C. Boyden Gray Center for the Study of the Administrative State; Senior Fellow, American Enterprise Institute

9:10 – 10:20 am – Panel 1: Presidential Administration & Political Polarization

Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law, The George Washington University Law School
Michael B. Rappaport, Hugh & Hazel Darling Professor of Law & Director of the Center for the Study of Constitutional Originalism, University of San Diego
Kevin M. Stack, Lee S. & Charles A. Speir Professor of Law, Vanderbilt University Law School

Moderator: Melanie M. Marlowe, Senior Associate, Center for Strategic and International Studies

10:20 – 10:30 am – Break

10:30 – 11:40 am – Panel 2: Kagan’s “Presidential Administration” After 20 Years

Ashraf Ahmed, Academic Fellow, Columbia Law School
Kristin E. Hickman, McKnight Presidential Professor in Law, University of Minnesota
Kathryn E. Kovacs, Professor, Rutgers Law School

Moderator: Adam White, Co-Executive Director, The C. Boyden Gray Center for the Study of the Administrative State; Senior Fellow, American Enterprise Institute

11:40 – 11:50 am – Break

11:50 am – 1:20 pm – Lunch & Conversation with D.C. Circuit Judge Neomi Rao, Hosted by Jennifer Mascott, Carriage House Courtyard

The Honorable Neomi Rao, Circuit Judge, U.S. Court of Appeals for the D.C. Circuit
Host: Jennifer Mascott, Assistant Professor of Law, Antonin Scalia Law School, George Mason University; Co-Executive Director, The C. Boyden Gray Center for the Study of the Administrative State

1:20 – 1:30 pm – Break

1:30 – 2:40 pm – Panel 3: Current Issues in Presidential Administration & Executive Power

Brian D. Feinstein, Assistant Professor of Legal Studies, The Wharton School of the University of Pennsylvania
Zachary S. Price, Harry & Lillian Hastings Research Chair, University of California Hastings College of the Law
Bijal Shah, Associate Professor of Law, Sandra Day O’Connor College of Law, Arizona State University

Moderator: Christopher J. Walker, John W. Bricker Professor of Law, Moritz College of Law, The Ohio State University

2:40 – 2:50 pm – Break

2:50 – 4:00 pm – Panel 4: The Constitutional Presidency: Two New Books

Julian Davis Mortenson, James G. Phillipp Professor of Law, University of Michigan
Saikrishna B. Prakash, James Monroe Distinguished Professor of Law, Albert Clark Tate, Jr., Professor of Law, Senior Fellow, Miller Center, University of Virginia
John Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution

Moderator: Jennifer Mascott, Assistant Professor of Law, Antonin Scalia Law School, George Mason University; Co-Executive Director, The C. Boyden Gray Center for the Study of the Administrative State

4:00 – 5:00 pm – Reception, Carriage House Courtyard

5:00 pm – Adjourn

Research Papers for the Conference

• The Tragedy of Presidential Administration
  By Ashraf Ahmed, Academic Fellow, Columbia Law School, Lev Menand, Academic Fellow and Lecturer in Law, Columbia Law School, and Noah Rosenblum, Assistant Professor of Law, New York University School of Law
• Divided Agencies
  By Brian D. Feinstein, Assistant Professor of Legal Studies and Business Ethics, The Wharton School of the University of Pennsylvania, and Abby K. Wood, Professor of Law, Political Science and Public Policy, University of Southern California Gould School of Law
• From Presidential Administration to Bureaucratic Dictatorship
  By Kathryn E. Kovacs, Professor, Rutgers Law School
• Presidential Polarization
  By John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University and Michael B. Rappaport, Hugh & Hazel Darling Professor of Law & Director of the Center for the Study of Constitutional Originalism, University of San Diego
• Faithful Execution in the Federal Government and the Fifty States
  By Zachary S. Price, Harry & Lillian Hastings Research Chair, University of California Hastings College of the Law
• The Purpose of Presidential Administration
  By Bijal Shah, Associate Professor of Law, Sandra Day O’Connor College of Law, Arizona State University
• Partisan Administration
  By Kevin M. Stack, Lee S. & Charles A. Speir Professor of Law, Vanderbilt University Law School