The Yale Law Journal

September 2006

Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within

Neal Kumar Katyal
115 Yale L.J. 2314 (2006)

The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this Essay asks how separation of powers can be reflected within the executive branch when that branch, not the legislature, is making much of the law today. The first-best concept of "legislature v. executive" checks and balances must be updated to contemplate second-best "executive v. executive" divisions. A critical mechanism to promote internal separation of powers is bureaucracy. Much maligned by both the political left and right, bureaucracy serves crucial functions. It creates a civil service not beholden to any particular administration and a cadre of experts with a long-term institutional worldview. This Essay therefore proposes a set of mechanisms that can create checks and balances within the executive branch in the foreign affairs area. The apparatuses are familiar--separate and overlapping cabinet offices, mandatory review of government action by different agencies, civil-service protections for agency workers, reporting requirements to Congress, and an impartial decision-maker to resolve inter-agency conflicts. The idea is to create a more textured conception of the presidency than either the unitary executivists or their critics espouse.