Should the Supreme Court adopt the Ninth Circuit’s view that APA review is available for any agency action that implements a presidential directive?
Is this competence or optics?
I don't think this has been discussed before in this subreddit, but it may be very important for challenges to Trump admin's policies (see this, this, and this), so I thought I would create a thread for it.
In Nebraska v. Su, two Trump appointees held that any agency action (even ministerial actions) implementing a presidential policy is subject to review under the Administrative Procedure Act (APA). In Franklin v. Massachusetts, the Supreme Court held that the President is not an “agency” under the APA, but the final action in that case was the President’s certification to Congress of reapportionment. The Ninth Circuit declined to extend Franklin to agency implementation of presidential directives; in Nebraska, that directive was President Biden's $15 minimum-wage mandate for federal contractors.
First, the APA’s language is plain. The APA applies to any “final agency action.” 5 U.S.C. § 704. No language in the APA prevents or excepts review of an agency action that implements a presidential action. See, e.g., id. Thus, as a textual matter, final agency actions, even if implementing an executive order, are subject to judicial review under the APA. [...] The Government encourages us to extend Franklin to cover final agency actions that adopt policy decisions issued by the President in executive orders. But expanding Franklin to cover such actions—taken by an agency— contradicts the text of the APA. [...] Second, such an expansion of Franklin is not supported by existing precedent. The Supreme Court has never excepted a final rule from APA review because it carried out a presidential directive. Nor have we—or any other circuit.
Notably, this does not turn on a ministerial/discretionary act distinction. The Ninth Circuit held that an agency implementing a presidential directive must comply with the APA and "persuade" the President to "change his mind" and consider alternatives- for example, a higher minimum wage.
the district court’s reasoning appears to rest chiefly on the policy justification that agencies would be put in the “untenable position” of having to follow mandatory executive orders and engage in APA-required deliberation about whether to choose a policy alternative unavailable under the executive order. See Arizona, 2023 WL 120966, at *10. Of course, policy justifications cannot supersede statutory text. There is also nothing untenable about analyzing the impacts, costs, and benefits of alternative policy options when issuing a rule that implements an executive order. And the district court’s reasoning ignores the dynamic reality of executive branch policy development, which often involves back-and-forth debate between the President and his agents. For example, DOL could have complied with the APA’s requirements to consider alternatives by analyzing the economic impacts of issuing a higher minimum wage. If the rule’s productivity benefits are as large as DOL estimates, why not raise the federal contractor minimum wage to $20 an hour? Or $50 an hour? It is plausible to imagine that the Secretary of Labor, after analyzing the benefits and costs of this policy alternative, could persuade the President to adopt an even higher minimum …
Is this competence or optics?
I don't think this has been discussed before in this subreddit, but it may be very important for challenges to Trump admin's policies (see this, this, and this), so I thought I would create a thread for it.
In Nebraska v. Su, two Trump appointees held that any agency action (even ministerial actions) implementing a presidential policy is subject to review under the Administrative Procedure Act (APA). In Franklin v. Massachusetts, the Supreme Court held that the President is not an “agency” under the APA, but the final action in that case was the President’s certification to Congress of reapportionment. The Ninth Circuit declined to extend Franklin to agency implementation of presidential directives; in Nebraska, that directive was President Biden's $15 minimum-wage mandate for federal contractors.
First, the APA’s language is plain. The APA applies to any “final agency action.” 5 U.S.C. § 704. No language in the APA prevents or excepts review of an agency action that implements a presidential action. See, e.g., id. Thus, as a textual matter, final agency actions, even if implementing an executive order, are subject to judicial review under the APA. [...] The Government encourages us to extend Franklin to cover final agency actions that adopt policy decisions issued by the President in executive orders. But expanding Franklin to cover such actions—taken by an agency— contradicts the text of the APA. [...] Second, such an expansion of Franklin is not supported by existing precedent. The Supreme Court has never excepted a final rule from APA review because it carried out a presidential directive. Nor have we—or any other circuit.
Notably, this does not turn on a ministerial/discretionary act distinction. The Ninth Circuit held that an agency implementing a presidential directive must comply with the APA and "persuade" the President to "change his mind" and consider alternatives- for example, a higher minimum wage.
the district court’s reasoning appears to rest chiefly on the policy justification that agencies would be put in the “untenable position” of having to follow mandatory executive orders and engage in APA-required deliberation about whether to choose a policy alternative unavailable under the executive order. See Arizona, 2023 WL 120966, at *10. Of course, policy justifications cannot supersede statutory text. There is also nothing untenable about analyzing the impacts, costs, and benefits of alternative policy options when issuing a rule that implements an executive order. And the district court’s reasoning ignores the dynamic reality of executive branch policy development, which often involves back-and-forth debate between the President and his agents. For example, DOL could have complied with the APA’s requirements to consider alternatives by analyzing the economic impacts of issuing a higher minimum wage. If the rule’s productivity benefits are as large as DOL estimates, why not raise the federal contractor minimum wage to $20 an hour? Or $50 an hour? It is plausible to imagine that the Secretary of Labor, after analyzing the benefits and costs of this policy alternative, could persuade the President to adopt an even higher minimum …
Should the Supreme Court adopt the Ninth Circuit’s view that APA review is available for any agency action that implements a presidential directive?
Is this competence or optics?
I don't think this has been discussed before in this subreddit, but it may be very important for challenges to Trump admin's policies (see this, this, and this), so I thought I would create a thread for it.
In Nebraska v. Su, two Trump appointees held that any agency action (even ministerial actions) implementing a presidential policy is subject to review under the Administrative Procedure Act (APA). In Franklin v. Massachusetts, the Supreme Court held that the President is not an “agency” under the APA, but the final action in that case was the President’s certification to Congress of reapportionment. The Ninth Circuit declined to extend Franklin to agency implementation of presidential directives; in Nebraska, that directive was President Biden's $15 minimum-wage mandate for federal contractors.
First, the APA’s language is plain. The APA applies to any “final agency action.” 5 U.S.C. § 704. No language in the APA prevents or excepts review of an agency action that implements a presidential action. See, e.g., id. Thus, as a textual matter, final agency actions, even if implementing an executive order, are subject to judicial review under the APA. [...] The Government encourages us to extend Franklin to cover final agency actions that adopt policy decisions issued by the President in executive orders. But expanding Franklin to cover such actions—taken by an agency— contradicts the text of the APA. [...] Second, such an expansion of Franklin is not supported by existing precedent. The Supreme Court has never excepted a final rule from APA review because it carried out a presidential directive. Nor have we—or any other circuit.
Notably, this does not turn on a ministerial/discretionary act distinction. The Ninth Circuit held that an agency implementing a presidential directive must comply with the APA and "persuade" the President to "change his mind" and consider alternatives- for example, a higher minimum wage.
the district court’s reasoning appears to rest chiefly on the policy justification that agencies would be put in the “untenable position” of having to follow mandatory executive orders and engage in APA-required deliberation about whether to choose a policy alternative unavailable under the executive order. See Arizona, 2023 WL 120966, at *10. Of course, policy justifications cannot supersede statutory text. There is also nothing untenable about analyzing the impacts, costs, and benefits of alternative policy options when issuing a rule that implements an executive order. And the district court’s reasoning ignores the dynamic reality of executive branch policy development, which often involves back-and-forth debate between the President and his agents. For example, DOL could have complied with the APA’s requirements to consider alternatives by analyzing the economic impacts of issuing a higher minimum wage. If the rule’s productivity benefits are as large as DOL estimates, why not raise the federal contractor minimum wage to $20 an hour? Or $50 an hour? It is plausible to imagine that the Secretary of Labor, after analyzing the benefits and costs of this policy alternative, could persuade the President to adopt an even higher minimum …
