Separating Legislative and Executive Power

There is a strong argument that the Constitution’s original meaning employs a strict separation of powers approach.  But many people argue that it would be too difficult to go back to this arrangement after the New Deal combined the powers in administrative agencies.  Previously, I wrote about how the separation of judicial and executive power could be effected without incurring too much in terms of adjustment costs.  See here and here.

Now, I want to move on to the separation of legislative and executive powers.  During the New Deal, the Supreme Court greatly relaxed the nondelegation doctrine and this separation so that now there is no real judicial check on delegations.  It is this change, more than any other, that has made the administrative state possible.  So, it might seem that it cannot be reversed without undermining the administrative state.

But not so.  Administrative law professors have for some time been aware of the following alternative arrangement.  The agencies could formulate significant legislative rules as they do now.  But instead of simply promulgating them, the agencies would send them over to the Congress.  Then, congressional rules would employ a kind of fast track procedure that would require each house to vote up or down on the proposed rule with very limited debate.  If passed, the rule would then be presented to the President.  In this way, the agencies could propose the rules, but the Congress and the President would have to decide whether to enact them.  There would be little delegation of legislative power to the agencies.

This arrangement would allow the administrative state to continue while respecting the separation of legislative and executive power, but it would be fiercely hated by one group: the Congress.  Forcing members of Congress to vote on often controversial regulations would be bad from the perspective of Congress.  Forcing them to vote up or down (without amendments) would be worse.  But, of course, Congress does not get a vote on the Supreme Court, so the Court could enforce the nondelegation doctrine and force the Congress into this arrangement or something like it.

Unfortunately, the Supreme Court has been AWOL on this issue since the New Deal.  In my next post, I will write about how the courts, including the conservatives on the Supreme Court and the D.C. Circuit, have impermissibly promoted a form of delegation that could have been avoided without prompting the ire of Congress: the Chevron doctrine.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. Rudy Hernandez says

    Would this arrangement mean Congress would have to grow, become more bureaucratic to be able to review the rules the agencies are producing? Also, there are so many administrative rules–it seems unlikely the public would follow/or care about Congress voting on them.

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