The Statutory Separation of Powers

59 Pages Posted: 22 Aug 2018 Last revised: 1 Mar 2019

See all articles by Sharon Jacobs

Sharon Jacobs

University of Colorado Law School

Date Written: July 14, 2018

Abstract

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; Yale Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3229255 or http://dx.doi.org/10.2139/ssrn.3229255

Sharon Jacobs (Contact Author)

University of Colorado Law School ( email )

401 UCB
Wolf Law Building
Boulder, CO 80309
United States

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