The Statutory Separation of Powers

By Jacobs, Sharon B. | The Yale Law Journal, November 2019 | Go to article overview

The Statutory Separation of Powers


Jacobs, Sharon B., The Yale Law Journal


ARTICLE CONTENTS  INTRODUCTION                                                380   I.    STATUTORY SEPARATION OF POWERS                      386         A. Why Separate and Balance Statutory Powers?       387            1. Statutory Separation of Powers as a Limit on               Presidential Authority                        390            2. The Administrative Virtues of Fragmentation   394         B. The Shape of the Doctrine                        395            1. Separation                                    395            2. Checks and Balances                           399               a. Veto Gates                                 400               b. Agenda Setting                             401               c. Emergency Overrides                        402               d. Sequential Decision-Making                 403               e. Interagency Delegation                     403               f. Leadership Intermingling                   404  II.   SEPARATING ENERGY POWERS                             405        A. Background                                        406        B. Crisis and Reorganization                         407        C. Separating Powers                                 411        D. Checks and Balances                               415           1. Agenda Setting                                 415           2. Concurrence Requirements                       419           3. Emergency Overrides                            422 III.  EVALUATING STATUTORY SEPARATION OF POWERS             427       A. Initial Allocations                                428       B. Lopsided Aggrandizement                            432       C. Adjusting the Balance                              437          1. Congress                                        438          2. Agencies                                        439          3. Courts                                          441 CONCLUSION                                                  444 

INTRODUCTION

The nature and extent of presidential power over administrative agencies is a central question in administrative law. The case in favor of expansive presidential control is grounded in the democratic accountability and efficiency that the President can bring to agency action. (1) Opponents of strong presidential control, however, are less convinced that presidential involvement yields true accountability or transparency. (2) Presidential involvement may also undermine rather than promote efficiency, especially when that involvement manifests as painstaking review of agency action by the Office of Management and Budget (OMB). (3) Separately, some worry that Presidents will sometimes interfere with the exercise of neutral expertise by administrative actors and thwart congressional intent as embodied in agencies' authorizing statutes. (4) As a result, some argue that Presidents should merely oversee agency action, not substitute their own decisions for those of agency heads. (5)

Congress, as the architect of the modern executive branch, can shape and control presidential power in a given policy domain through its statutory delegations. One important way in which Congress has designed agencies to resist presidential encroachment is by vesting all administrative authority on a given matter in an independent, bipartisan commission. (6) By preventing the President from removing the heads of such agencies without cause, Congress eliminates or at least limits a key source of presidential influence. Other structural determinants of agency independence include multimember structure, partisan balance, litigation authority, and self-funding mechanisms. (7)

Congress might also compromise by dividing authorities between agencies operating at varying degrees of remove from the White House. Such a compromise preserves some of the advantages of executive oversight while preventing total control by the President within a given policy domain. …

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