Symbolism and Separation of Powers in Agency Design
26 Pages Posted: 30 Jun 2018
Date Written: June 15, 2018
This Essay was written for a symposium, Administrative Lawmaking in the 21st Century, hosted by the Notre Dame Law Review in November 2017. The Essay describes a series of cases — Free Enterprise Fund v. Public Company Accounting Oversight Board, a series of D.C. Circuit cases brought by the Intercollegiate Broadcasting System against the Copyright Royalty Board, and PHH Corp. v. Consumer Financial Protection Burea — in which courts have remedied a constitutional flaw in the statutory design of a particular federal government agency by severing statutory language to alter the agency’s design. The Essay raises reservations regarding judicial refashioning of agency design via the severance remedy for separation of powers violations: (1) that the remedy may not reflect the judicial restraint that motivates it; (2) that the remedy is sufficiently weak that its repeated use will chill litigation of legitimate constitutional challenges; and (3) that the remedy makes agency officials more politically accountable when, arguably, popular understandings of separation of powers principles might counsel otherwise. To the extent these reservations are accurate, judicial use of the severance remedy to address agency design flaws may, in turn, exacerbate questions regarding the fairness and legitimacy of agency actions.
Keywords: Separation of Powers, Agency Design, Severability
JEL Classification: K10, K19, K20, K23, K30, K39, K40, K49
Suggested Citation: Suggested Citation