One of the main ways that administrative agencies exercise non-executive power is through their extensive rulemaking authority. Agencies exercise quasi-legislative (or simply legislative) power by enacting rules on the basis of often vague statutory requirements, such as “promoting the public.” The best solution to this issue would probably have Congress pass the rules that govern the public rather than leaving the decision to agencies. But Congress likely does not have the expertise to write these rules or the time to enact them.
For the most part judges serve as a critical link in the ordinary flow of administration.
When Leandra English, former chief of staff to the former director of the Consumer Financial Protection Bureau, asked a federal judge to block President Trump’s appointment of Mick Mulvaney to replace her departing boss Richard Cordray, and to install her as the CFPB’s rightful leader, Judge Timothy J. Kelly of the Federal District Court in Washington, D.C., denied her request. Yet English’s legal team, rejecting the idea that President Trump held the directorship in his hands pursuant to the Federal Vacancies Reform Act of 1988 and Article II of the Constitution, has since vowed to continue its resistance to the President’s action.
President Trump, whose reflex for pugnacity has its uses, threw a vicious and entirely fair constitutional body check when he named OMB Director Mick Mulvaney acting director of the Consumer Financial Protection Bureau. It is exactly how constitutional conflicts are supposed to be resolved: power checking power.