To the Victor Goes the Toil -- Remedies for Regulated Parties in Separation-of-Powers Litigation

66 Pages Posted: 5 Feb 2013 Last revised: 29 Sep 2015

See all articles by Kent H. Barnett

Kent H. Barnett

University of Georgia School of Law

Date Written: July 24, 2013


The U.S. Constitution imposes three key limits on the design of federal agencies. It constrains how agency officers are appointed, the extent of their independence from the President, and the range of issues that they can decide. Scholars have trumpeted the importance of these safeguards with soaring rhetoric. And the Supreme Court has permitted regulated parties to vindicate these safeguards through implied private rights of action under the Constitution. Regulated parties, for their part, have been successfully challenging agency structure with increased frequency. At the same time, regulated parties, courts, and scholars have largely ignored the practical question of “structural remedies” — i.e., how to remedy the violation of structural safeguards for prevailing regulated parties. This inattention may arise because courts often provide what seems at first blush to be an appropriate remedy: severing the structural defect from an agency’s “organic” act. In fact, however, structural remedies often fail to satisfy core remedial values relevant to regulated parties — namely, compensating past harm, preventing future harm from the past defect, incentivizing regulated parties to seek redress, and deterring structural violations — and may leave regulated parties in a worse place than they occupied before asserting the challenge. These ineffectual remedies thereby undermine the very safeguards that judicial decisions purport to vindicate and render any “private right” potentially illusory. Courts, in response, can improve the status quo. They could select (or Congress could provide) better remedies, and this article considers how they could do so. But if structural remedies cannot be sufficiently improved, courts should either become more candid about the underlying safeguards’ limitations, or reconsider altogether the nature of the safeguards and regulated parties’ relationship to them.

Keywords: separation of powers, remedies, appointment, removal, Article III, Article II, Free Enterprise Fund v. PCAOB, Buckley v. Valeo, recess appointment, Noel Canning, NLRB, CFPB

Suggested Citation

Barnett, Kent Harris, To the Victor Goes the Toil -- Remedies for Regulated Parties in Separation-of-Powers Litigation (July 24, 2013). North Carolina Law Review, Vol. 92, pp. 481-546, 2014, Available at SSRN: or

Kent Harris Barnett (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

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