In an award-winning paper, Noah Rosenblum examines the buildup of presidential administration
For American presidents, the power to exert authority over the administrative state has historically derived from statutes under a system of checks and balances. But the 1980s and 1990s marked a decisive shift as both President Ronald Reagan and President Bill Clinton moved aggressively to assume greater control over the administrative state. That’s the central premise of the influential 2001 article, “Presidential Administration” by then-Harvard Law School professor Elena Kagan, currently a US Supreme Court associate justice.
Now Noah Rosenblum has co-authored a fresh take on presidential administration that both broadens and challenges Kagan’s argument. In September 2025, Rosenblum’s paper received the annual Award for Scholarship in Administrative Law from the American Bar Association Section of Administrative Law and Regulatory Practice.
In “The Making of Presidential Administration,” published in Harvard Law Review in 2024, Rosenblum and his co-authors—Columbia Law School professors Ashraf Ahmed and Lev Menand—dispute the notion that presidential dominance over the administrative state is solely the result of a supine Congress and a largely indifferent judicial branch. Instead, they argue, presidential supremacy over regulatory agencies occurred with the active encouragement of both the courts and prominent legal scholars. The assertive maneuvers taken during the Reagan and Clinton presidencies with respect to the administrative state were not without controversy, the co-authors emphasize.
In her article, Kagan contrasted the ideological motivations of the Reagan and Clinton administrations in their handling of regulatory agencies. The Reagan White House, she wrote, “sought mainly to suppress” administrative initiatives as part of a broader deregulation drive and to ensure philosophical uniformity across agencies. But the Clinton administration—in which Kagan served, in the White House counsel’s office and in policy positions—acted “to achieve, to the extent it could, the full panoply of [Clinton’s] domestic policy goals” on issues including welfare reform, tobacco marketing, and gun control.
Rosenblum and his co-authors agree with Kagan’s general conclusions while critiquing what they contend are several notable omissions. “Virtually absent from Kagan’s account are the institutional politics, legal innovations, and ideological conditions that made the shift to presidential administration possible,” they write. “By offering a selective and irenic history of presidential administration, the standard account deprives us of tools to assess its internal dangers, as well as the concepts to push back against its excesses.”
In this Q&A, Rosenblum discusses the ABA award, the role of the courts in placing greater authority within the purview of the White House, and the ramifications of unprecedented presidential power over the administrative state.
What does receiving the ABA award mean to you?
I’m just over the moon. It’s incredibly flattering to have our work recognized by a community of lawyers and scholars I really admire. Second, I respect Justice Kagan’s work so much, and so being able to write something that meets that standard is really important to me and my co-authors.
I also think that it reflects something about the importance of the topic and the change in the times. Certainly under Presidents Obama and Biden, you saw Republicans much more aggressively questioning whether we had done right to put so much power in the presidency. Some are doing the same under President Trump—but you definitely see the Democrats questioning whether that was the right decision. You’re hearing people interested in regulation who are recognizing the dangers here as the Trump administration uses its presidential powers to implement new regulatory programs, like the tariffs. You’re hearing people say, “Wait, hold on. Maybe from a regulatory perspective, this is a bad decision, too.”
Obviously, [my co-authors and I] have an implicit normative agenda, which we sometimes make explicit in our article. It’s really just trying to push [readers] to question whether these decisions were the right ones as a matter of law and as a matter of policy. And maybe it’s a testament to Kagan’s genius that it took three of us to write one article in an effort to put her work in context.
What fueled this effort to directly engage with Kagan’s scholarship on presidential administrative authority?
I had written an article previously about the historical roots of presidential control of government, “The Antifascist Roots of Presidential Administration.” In working on it, I wrote a 10,000-word chunk trying to make sense of Kagan’s article. I later cut it because it ended up not fitting into the final version. By 2020, it had been nearly 20 years since her article, and I thought it might be good to do something for the anniversary because it’s an incredible piece. But unbeknownst to me, Ash and Lev were working on an article that was similarly trying to make sense of Kagan’s article. They had written up an early draft and were presenting it at a conference.
They later wrote to me, asking if I wanted to comment on the article. And when I told them what I was working on, we decided to join forces. The three of us were grappling with the same question, which is: given that our government has become so presidential, how did we get there? What were the political and legal steps that transformed the modern American state in this direction? And we also wanted to address points that were missing from [Kagan’s] article—for example, that the greater accumulation of authority within the presidency was controversial. We wanted to show some of the resistance that occurred, including from Congress.
Your article documents the role of the US Supreme Court in shifting administrative powers from Congress to the presidency. Can you expand on this point?
I think that the Supreme Court has been an enabler for decades at this point. But the role of courts is totally fascinating because there are different paradigms. And how they fit together isn’t totally obvious. [Supreme Court Justice] Warren Burger is a real player in our story. In my eyes, he is kind of an accidental enabler who is in thrall to this very wooden understanding of the separation of powers: the idea that there are three, and only three, powers that can be connected to individual branches. And that every government act can be neatly sorted into one and only one category. It’s a very Schoolhouse Rock vision of the Constitution. So when he’s ruling in cases like Bowsher v. Synar [in which the Court held in 1986 that delegation of duties by Congress to the comptroller general was unconstitutional], I don’t know that he is explicitly interested in transferring power away from the legislature towards the presidency. But that’s certainly the major effect of what he's doing.
But someone like [Supreme Court Justice] Antonin Scalia is up to something slightly different. And you see the roots of this idea very early on for him in his work in the Office of Legal Counsel [during the Ford administration]. Scalia, from the beginning, is really committed to this vision of the unitary executive theory of presidential control of government. For him, although he’s got this constitutional theory that justifies it, there’s also a real programmatic goal here. He has a vision of the presidency that he attributes to the Constitution, but it’s really his vision, and he wants to see it achieved through judicial rulings. And that Scalia vision is ultimately the one that’s successful.
What do you make of how the Trump presidency is exercising its administrative authority?
With Trump, we’re obviously seeing a step beyond even the limits imposed by the Constitution. Trump is apparently uninterested in constitutional limitations on presidential power. His approach to his office seems to be to act first and then seek legal justifications later. The article has several things to think about in this moment. It helps us to appreciate the extent to which the Trump administration really is unprecedented and going a step beyond what came before.
The key point that I want to make is that a more personalized conception of the office of the presidency is something that has been developing in our jurisprudence for a long time now. And although Donald Trump’s unique combination of personal characteristics has made the personalized approach to the presidency more visible than perhaps it’s been in the past, he really embodies a particular way of inhabiting the office that we have allowed ourselves to create.
And I think one thing that [my co-authors] and I really want to do is to get people to ask themselves, “Is this a good way of building the office?” In this current administrative moment, where we can see some of the dangers of having constructed the office that way, we hope our article can loosen some of constraints on people’s imagination and maybe help encourage, in response to Trump, something similar to what we saw in response to Nixon, which was a real rethinking of the structure of the office [of the president] and the relationship between the president and the rest of the administration.
What is the overriding lesson of your article in your view?
We want to remind people that what we built one way, we can build another way. And by showing that the making of presidential administration was not foreordained, but was the outcome of certain decisions—some deliberate and some that maybe we didn’t intend—we really hope that we can create space for some rethinking.
