Author ORCID Identifier

0009-0003-4214-9540

Document Type

Article

Publication Date

2024

Keywords

Administrative state, Agencies, Institutional design, Forms of government, For-cause removal, Aristotle's typology of regimes

Abstract

This Article makes three main contributions. First, it fleshes out the theory of separation of structures as distinct from contemporary scholarly approaches. Second, it writes the intellectual history of separation of structures, which has been an integral part of the separation of powers enterprise since its inception, including at the Founding. Third, it explores the scholarly and doctrinal implications of structural separation of powers. In particular, adjudicating the constitutionality of agency structures requires methodological pluralism that incorporates the normative values underlying the structural design. That is, under separation of structures, current doctrine should evolve beyond the formalism heavily criticized by scholars. This structural framework thus provides a limiting principle to the doctrine of Free Enterprise Fund, Seila Law, and Collins v. Yellen. Further, congressional delegation to agencies cannot be conceptualized as a violation of separation of powers on the sole ground that delegation allows executive branch agencies to exercise legislative power. Instead, advocates of a muscular nondelegation doctrine often fail to recognize that agency structure can mitigate potential violations of functional separation of powers. Both implications are urgent in today’s doctrinal milieu. Not only does the Court continue to entrench its agency-structure jurisprudence—it appears poised to extend the nondelegation doctrine.

First Page

599

Publication Title

Virginia Law Review

Comments

Copyright © 2024 Virginia Law Review Association. Material used is owned by the Virginia Law Review Association and is used by permission of the Virginia Law Review Association.

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