Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers
91 New York University Law Review 227 (2016)
65 Pages Posted: 6 Sep 2015 Last revised: 15 Jun 2016
Date Written: May 1, 2016
The theory and reality of “administrative separation of powers” requires revisions to the longstanding legal, normative, and positive accounts of bureaucratic control. Because these leading accounts are often insufficiently attentive to the fragmented nature of administrative power, they tend to overlook the fact that internal administrative rivals — perhaps as much as Congress, the President, and the courts — shape agency behavior. In short, these accounts do not connect what we might call the old and new separation of powers. They thus fail to capture the multidimensional nature of administrative control in which the constitutional branches (the old separation of powers) and the administrative rivals (the new separation of powers) all compete with one another to influence administrative governance.
Connecting novel insights regarding administrative separation of powers to old — and seemingly settled — debates over the design and desirability of bureaucratic control, this Article (1) characterizes the administrative sphere as a legitimate, largely self-regulating ecosystem, (2) recognizes the capacity of three rivals — politically appointed agency heads, politically insulated civil servants, and members of the public — to internally police the administrative process, and (3) recasts judges, presidents, and legislators as custodians tasked with preserving a well-functioning, internally rivalrous administrative separation of powers.
Keywords: Separation of Powers, Administrative Law, Internal Separation of Powers, Administrative Separation of Powers, Agency Control, Bureaucracy, Bureaucratic Control, Civil Service, Unitary Executive, Constitutional Law
JEL Classification: D72, D73, D78, H11, J45, K23, L33
Suggested Citation: Suggested Citation