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Abstract:
How can an eighteenth-century Constitution effectively control a twenty-first century government? Harold Bruff, who is Thomson Professor of Law at the University of Colorado, addresses this question in his book. He explores and critiques the law that governs the relationships among the three constitutional branches and between them and the massive administrative bureaucracy that has arisen. His analysis considers the constitutional history of our system, the structure and nature of the federal government, and the available modes of legal analysis of separation of powers issues. The courts play a central role in maintaining the rule of law while recognizing discretion that any effective government needs. For example, arguments about inherent executive power balance national needs to meet emergencies against competing needs to constrain the executive branch. In turn, the courts are controlled by congressional definition of their jurisdiction and presidential nomination of their judges. Two of the most important checks and balances are the President's veto and Congress's power of the purse. These devices create a stabilizing mutual dependency between the two branches. Each of the branches has some autonomy; for example, officers of all three branches possess important but limited immunities from civil damages for their actions. Bruff examines the delicate tradeoffs between autonomy and accountability of government officers: how Congress exercises the ultimate impeachment power over members of the other two branches, how information about government activities promotes accountability, and how doctrines such as executive privilege shield some activities from our scrutiny. Bruff also canvasses the ways that the elected branches oversee the bureaucracy. Both branches engage in vigorous oversight of policy formation in the bureaucracy, as they compete to control the administrative state.
administrative law, separation of powers, constitutional law
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