Regulation and the Separation of Powers

29 Pages Posted: 10 Jan 2020

See all articles by Ariel L. Bendor

Ariel L. Bendor

Bar-Ilan University - Faculty of Law

Sharon Yadin

Peres Academic Center

Date Written: September 21, 2019

Abstract

This essay argues that current regulatory roles of administrative agencies, Congress, and courts are not fully consistent with separation of powers principles. Regulatory agencies often hold all three governmental functions, including judicial-like punitive sanctioning powers and comprehensive legislative powers for setting major regulations, with almost no supervision by other branches of government. Courts tend to grant de facto immunity from judicial review to many regulatory actions of administrative agencies under different types of deference doctrines, while Congress holds merely supervisory veto power over regulations. Executive regulatory functions are also misallocated, as decisions in specific cases with particular applicability are sometimes made by the legislative branch via enactment of laws, rather than by agency action. This essay suggests an innovative theory, both descriptive and normative, of the relationship between regulation and the separation of powers, bringing together constitutional law, administrative law, and regulation scholarship.

Keywords: regulation, separation of powers, administrative law, regulatory agencies, Congress, courts, sanctioning, enforcement, branches of government, deference doctrine, constitutional law

Suggested Citation

Bendor, Ariel L. and Yadin, Sharon, Regulation and the Separation of Powers (September 21, 2019). Southern California Interdisciplinary Law Journal, Vol. 28, No. 2, 2019. Available at SSRN: https://ssrn.com/abstract=3457763

Ariel L. Bendor

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

Sharon Yadin (Contact Author)

Peres Academic Center ( email )

P.O.Box 328
Rehovot, 76120
Israel

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