The Statutory Separation of Powers

67 Pages Posted: 22 Aug 2018 Last revised: 18 Dec 2019

Date Written: July 14, 2018


The separation of powers forms the backbone of our constitutional democracy. But it is also a guiding principle in sub-constitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. This statutory separation of powers may be seen clearly in the simultaneous legislative creation of the independent Federal Energy Regulatory Commission (FERC) and the executive Department of Energy (DOE). Like its constitutional counterpart, the statutory separation of powers seeks to prevent the dominance of faction and create policy stability. But separating and balancing statutory authority is a delicate business subject to challenges of imprecise allocation, lopsided aggrandizement, and infrequent adjustment. The relationship between FERC and the DOE demonstrates these challenges, which have allowed the DOE to weaponize statutory checks and balances in its pursuit of policy dominance. The article concludes with recommendations for how Congress, the judiciary, and agencies themselves might mitigate these tendencies and preserve the statutory separation of powers as a meaningful safeguard against the perils of concentrated policymaking authority.

Keywords: Energy Law, Separation of Powers, Administrative Law, FERC, DOE

JEL Classification: K23, K32

Suggested Citation

Jacobs, Sharon, The Statutory Separation of Powers (July 14, 2018). U of Colorado Law Legal Studies Research Paper No. 18-28, 129 Yale Law Journal 378 (2019), Available at SSRN: or

Sharon Jacobs (Contact Author)

UC Berkeley School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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