Professor Moya – Spring 2008
Separation of Powers
Two constitutional provisions are especially relevant to the Court’s acceptance of the modern administrative state. First, the Constitution not only prescribes a scheme of separated powers; it also authorizes Congress to make all laws necessary and proper for ensuring that all of these powers, including the executive power, are exercised effectively.
The Court has often recognized that, in light of the complexity and rapidly changing nature of society, it is necessary and proper for Congress to give quasi-legislative and quasi-judicial powers to administrative agencies.
Second, the Constitution prescribes a system of checks and balances that precludes a complete separation of powers.
Separation of Powers suggests noninvolvement of branches that do not possess a specified power.
Modes of Analyzing Separation of Powers Issues Under the Constitution:
Formalism: Demands adherence by each branch to the powers granted that branch. Congress can only make laws if it follows specified procedures, but may not enforce the laws it makes. The President enforces laws but may not make them.
Functionalism (Morrison v. Olson): Commands fidelity to the purposes of the distribution of powers. For the functionalist, the Constitution’s distribution of powers is violated only if one branch of the federal government aggrandizes its powers at the expense of another branch.
This approach allows more of a blending and sharing of power between the branches of government because it sees matter only that threaten central or core functions as violating separation of powers.
Powers Congress Has Over Agencies
Grant powers to the agency in an enabling act
The powers it grants are limited by the separation of powers doctrine
Grant broad discretional powers to the agency or limited powers (control scope of powers)
Can dictate procedural requirements
Can preclude judicial review of certain actions (See APA 701)
Congress can oversee through legislative committees
Can enquire into the status of cases
Cannot impose extraneous factors – adjudications
No ex parte communications in formal rulemaking or adjudications
Can lobby in rulemaking situations
Powers Executive Has Over Agencies
The executive branch controls agencies
By how they can terminate and appoint agency heads
Pre review of agency rules
Go through OMB
Can check on status
Can have input on rules and rulemaking even after comment closes as long as don’t bring in extraneous factors
Can guide agency on policy direction
Nothing holding back executive branch from suggesting who agency can hire
Administrative agencies are creatures of statute.
Congress “delegates” powers to the agency for it to use in dealing with the assigned problem.
The power to make rules that have legal effect on pe
States given it in the Constitution under Article 3 Section 1.
Schor identified two separate functions served by Article III.
Article III serves both to protect the role of the independent judiciary within the constitutional scheme of tripartite government and to safeguard litigants’ right to have claims decided before judges who are free from potential domination by other branches of government.
Whereas the first function protects structural interests, the second function protects personal interests.
Structural Interest Approach
Schor disclaimed a “formalistic” approach in favor of one that “weighed a number of factors.” The Court described those factors as:
– the extent to which the essential attributes of judicial power are reserved to Article III courts
– the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts
– the origins and importance of the right to be adjudicated
– the concerns that drove Congress to depart from the requirements of Article III
Thus the Court in Schor articulated four factors for determining whether a delegation caused a structural impairment.
Personal Interest Approach