Can Interagency Dialogue Serve as the New Separation of Powers?

Abstract:     
In a recent essay published in the Yale Law Journal, Professor Neal Katyal proposes a series of structural reforms within the executive branch to compensate for what he sees as the collapse of Congress's ability to serve as an effective check on executive power. In this brief response, Professor Christopher Yoo suggests that any assessment of changes in the legislative-executive balance of power should take into account the increasing number of institutional mechanisms through which Congress can exert control over the executive branch. Professor Yoo also points out the extent to which Professor Katyal's argument relies on an expertise-centered conception of the federal bureaucracy that has been questioned by such noted scholars as Marver Bernstein, Richard Stewart, William Niskanen, Lawrence Lessig, and Cass Sunstein. Creating internal divisions within the executive branch would also dampen executive energy and accountability in areas in which such considerations are often critical. Finally, history counsels humility regarding the law's ability to check executive power and suggests that the most meaningful protections against presidential aggrandizement may well be political rather than legal.

Number of Pages in PDF File: 7

Keywords: administrative law, separation of powers, checks and balances, bureaucracy theory, executive power, presidential power

Accepted Paper Series