The Statutory Separation of Powers
abstract. Separation of powers forms the backbone of our constitutional democracy. But it also operates as an underappreciated structural principle in subconstitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. Like its constitutional counterpart, the “statutory separation of powers” seeks to prevent the dominance of factions and ensure policy stability. But separating and balancing statutory authority is a delicate business: the optimal balance is difficult to calibrate ex ante, the balance is unstable, and there are risks that executive agencies in particular might seek expansion of their authority vis-à-vis their independent counterparts.
By explicating the architecture of statutory separation of powers, this Article explores both how statutory separation of powers can facilitate resistance to the executive and how the executive might weaponize particular statutory entanglements in pursuit of policy dominance. Presidents from both parties unapologetically leverage administrative agencies to achieve policy goals. The current administration is no exception: it has rolled back emissions limits previously promulgated by the Environmental Protection Agency, refocused immigration policy on enforcement and border security through changes at the Department of Homeland Security, and leaned on the Department of Energy to prop up the ailing coal industry. This last set of efforts has, to date, been rebuffed by other federal administrative actors. This is no accident. Congress set up the existing federal balance of energy authorities in the wake of a previous attempt by the executive to dominate energy policy. But because of the administration’s willingness to use statutory checks as a sword rather than a shield, the interagency balance of authority has come under increasing pressure.
The Article concludes with recommendations for how Congress, agencies, and the judiciary might mitigate these tendencies and preserve the statutory separation of powers as a meaningful safeguard against the perils of concentrated executive policy-making authority.
author. Assistant Professor of Law, University of Colorado Law School. I am grateful to Ming Chen, Steven Croley, Dan Farber, Sean Helle, Rebecca Ingber, Craig Konnoth, Sarah Krakoff, Richard Lazarus, Ben Levin, Nina Mendelson, Gillian Metzger, Helen Norton, Jennifer Nou, Nicholas Parrillo, Carolyn Ramsey, Jim Rossi, Miriam Seifter, Pierre Schlag, Scott Skinner-Thompson, Anna Spain, Peter Strauss, Phil Weiser, and participants in the University of Michigan Law School’s Administrative Law New Scholarship Roundtable and UCLA Law School’s Climate and Energy Workshop for helpful comments and conversations. Special thanks to Alex Mechanick and other staff at the Yale Law Journal for their superb feedback and careful edits. All mistakes are my own.