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Franklin v. Massachusetts
One of the most fundamental questions about the definition of an "agency" in the APA is whether the President of the United States (POTUS, for short), counts as an agency. Imagine if the President had to comply with administrative law, including requirements to take into consideration public comment before making a decision. Pretty far-fetched, right? In the following case, the Supreme Court avoided tricky separation of powers questions that might arise if Congress could, through laws like the APA, bind the president to certain decisionmaking procedures.
While the Franklin decision is canonical, it is not without its critics. Most recently, Kathryn Kovacs has argued that Franklin is flat out wrong. See Kathryn E. Kovacs, Constraining the Statutory President, 98 Wash. U. L. Rev. 63 (2020). What reasons can you think of that might have justified going this alternative route and subjecting the President to the APA? Would such an inclusive definition of "agency" under the APA be workable? Does it matter that, in almost every case, the President must rely on agencies that are subject to the APA in order to carry out executive decisions?
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