fbpx

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.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on December 20, 2017 at 08:31:27 am

Interesting topic, interesting assertions.

read full comment
Image of Paul Binotto
Paul Binotto
on December 20, 2017 at 11:30:48 am

Quick read of the abstract provided indicates that this series of essays should be interesting.

Of course, amending the REINS Act to allow the Legislative to spend more time analyzing FAS mandates would be helpful. Given the veritable flood of FAS regulations emanating from the Executive, it is unreasonable to expect the Legislative to review, analyze, etc ALL of these mandates within such a short period. Perhaps, REINS review should occur BEFORE publication of any FAS mandate.

Then again, why not strip the FAS of its rulemaking powers and place it within the Legislative. As a "formalist" matter, this would at least eliminate the appearance of unconstitutional rulemaking. Yes, it further burdens a "lazy" and risk-averse Legislative - BUT, this may be its hidden benefit. Impose accountability on the Legislative by making it obvious that the "rules" ARE coming from the Legislative. No more hide-and-seek by your elected Representative.
Also, by tying FAS bureaucrat employment to the "election" of a Representative, i.e. modifying the Pendleton Act / civil Service ruels, you may actually get a turnover in "bureaucratic sentiment" after each election. No longer will the same "statist" personalities be able to burrow deep within the government - there to do damage to the citizenry for generations. Your Left wing Senator loses election - so do you!

As for courts, Art III Judges will help - but let the Legislative end the deceitful process of sue and settle. Make all *settlements* subject to Legislative approval.

Of course, simply end Big Government fantasies / policies / legislation and the problem is pretty much solved - but that ain't gunna happen, is it?

read full comment
Image of gabe
gabe
on December 20, 2017 at 16:27:29 pm

To accept the premise of Professor Rappaport's argument ("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") would require two near-nietzschean. acts of political will: 1) "a willing suspension of disbelief" (to quote the witchy woman) in the capacity of venal politicians to act responsibly (i.e., to do the right thing) in the face of the compelling need for revolution (foundational and structural) in AdminLaw and 2) a willingness of right-thinking people invested in the survival of liberty under law to accept the inevitability of all (or most) of the "large government programs that exist today."

I am prepared to will the political fantasy requisite to the former but not the moral cynicism and political defeatism requisite to the latter frame of mind.

Practical politics and political workability aside, the "Rappaport reform thesis" is intellectually well-intentioned, procedurally thoughtful, administratively creative and constitutionally unacceptable. Tinkering with the malfunctioning legal mechanics of an inherently destructive system is to invite its unconstitutional permanence.

Better steadfastly to implore the courts to adopt the "newkular" option (incrementally, one law at a time; remember that Jim Crow died the death of a thousand judicial cuts) and for Congress, then, to rebuild from the regulatory Deep State's ashes a minimalist system that comports with the constitution and the demands of administrative necessity.

read full comment
Image of timothy
timothy

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.