Academic journal article Stanford Law Review

Constitutional Administration

Academic journal article Stanford Law Review

Constitutional Administration

Article excerpt

Table of Contents  Introduction  I.   The Problem of Modern Administration      A. The Power of Separation of Powers      B. The Birth of Two Fictions  II.  A Tripartite Theory of Administrative Law      A. The Legislative Veto and a Rulemaking Enabling Act         1. Toward a legislative veto of legislative acts         2. A few observations         3. The possibility--but not inevitability--of one-house vetoes         4. Rulemaking as lawmaking         5. The Rulemaking Enabling Act under modern doctrine         6. Proposed text of a Rulemaking Enabling Act      B. Presidential Administration and a Modified Unitary Executive         1. Unitary administration         2. Presidential administration         3. Constitutional administration: the enforcement power         4. Proposed text of an Independent Commission Reform Act      C. Judicial Review of the Three Powers         1. The current appellate model of judicial review         2. Judicial review of rulemaking: Chevron         3. Judicial review of executive actions         4. Judicial review of adjudications         5. Proposed text of an Administrative Adjudications Act  III. Three Objections      A. The Indeterminacy of Separation of Powers      B. A Fourth Power of Government?      C. Limitless Delegation?  Conclusion: Formalism, Functionalism, and "Balance"  Appendix 


Many of administrative law's modern debates and key constitutional decisions may be understood as expressions of either functionalism or formalism. Modern doctrine, as a formalist matter, assumes that Congress does not delegate legislative power to agencies because under Article I, Section 1 of the Constitution, only Congress may make law. (1) The doctrine also assumes that when agencies make rules (or adjudicate them), they ultimately exercise only executive power--though it may be "quasi-legislative" or "quasijudicial" (2)--because Article II, Section 1 declares that the President and his administration may execute but not make or adjudicate the law. (3)

One school of formalists, recognizing that this is what the Constitution requires, rejects the modern administrative state because Congress routinely delegates its legislative power, even though the doctrine pretends it does not. Further, although the doctrine pretends that agencies are merely executing the law, agencies are in fact routinely exercising legislative and judicial power as well, undermining the constitutional separation of powers. (4)

Many functionalists, on the other hand, entirely accept this state of affairs, arguing that other procedural mechanisms, such as those required by the Administrative Procedure Act (APA), may acceptably replace the constitutional separation of powers. (5) Or they advocate unoriginalist practices that accommodate the modern administrative state but attempt to make it better reflect the original constitutional purposes of the separation of powers. (6) Justice Byron White's famous dissent in INS v. Chadha, where he advocates a legislative veto to bring the legislative and executive branches more into balance, is the classic example of the latter kind of attempt. (7)

This Article advances a new approach to resolving modern administrative law's two core constitutional difficulties of delegation and separation of powers. It argues that we ought to accept, as a functionalist matter, the delegation of legislative power to agencies. It does no good for the doctrine to mask the unconstitutional foundation of modern administration for the mere sake of constitutional appearances. This Article argues that recognizing the practical reality of legislative delegation will accomplish much more. Indeed, if we make this one functionalist move--if we accept one unoriginalist precedent at the core of modern administrative government--we open up a panoply of formalist solutions to the problematic combination of legislative, executive, and judicial powers in the executive branch, a combination that the Framers understood to be the very definition of tyranny. …

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