Establishing a Stricter Separation of Powers For Administrative Agencies in the Modern World

In recent years, people on the right, especially, have taken to attacking the Administrative State.  They see it as operated by biased government institutions that violate the Constitution’s separation of powers.  I entirely agree, and have long held this position.  I first came to view administrative agencies as constitutional abominations in law school, writing a paper on the subject at that point.  But with one exception, I have not attacked such agencies as a law professor.  Until now.

In a recent paper, entitled “Classical Liberal Administrative Law in a World of Progressive Government,” I argue for moving towards the traditional separation of powers for administrative agencies.  The goal of such a regime would be to prevent agencies from exercising quasi-legislative and quasi-judicial authority.  Instead, the agencies would possess only executive power.  Legislative power would be exercised by Congress and judicial power would be exercised by the courts.

While such a strict separation of powers would be possible under a limited government regime, it is much more difficult in a world of large government programs.  To operate these programs, the government requires significant expertise both to make the legislative decisions as to which rules to enact and to make the adjudicative decisions as to the application of those rules in specific factual contexts.  There are strong arguments that Congress lacks the expertise to make these legislative decisions and that generalist federal courts lack the expertise to make the adjudicative decisions.

In addition, the government requires the time to make these decisions.  But again it is likely that Congress will not have the time to enact the numerous rules that these programs contemplate and that federal judges will not have the time to adjudicate the numerous cases that ALJs and agencies now undertake.

While defenders of existing administrative law argue that these expertise and timing challenges require that administrative agencies exercise combined powers, I argue otherwise.  In my new paper, I argue that it is possible to employ a much stricter separation of powers and still have the agencies perform the functions needed to administer the large government programs that exist today.

In my next couple of posts, I will discuss how the quasi-legislative and quasi-judicial powers of administrative agencies could be transferred to the Congress and to article III federal judges in a manner that would still allow the agencies to administer our big government.