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Where Do Administrative Agencies Fit in the Separation of Powers?

There have always been administrative agencies to assist the federal government. But agencies have evolved over time to usurp some of the powers that should belong exclusively to the 3 branches of government. Professor Michael Greve discusses some of the more problematic issues involving agencies and their current roles in the constitutional structure. https://youtube.com/watch?v=bEfnz2lUvPA


Administrative law and the agencies and bodies it governs fits somewhat uneasily into the constitutional structure and in particular, the separation of powers. So here's the basic problem. At some level, of course, we've had administrative agencies, all along under the aegis of the President. And that's obvious from the Constitution, even though the Constitution itself says exceedingly little about how the Executive is to be organized. It's obvious there has to be an army that has to be administered somehow. Taxes have to be assessed and collected. Somebody has to run the Census every 10 years and so on and so forth. So from the get go, we had administrative agencies, some of them with a fair amount of discretion, and none of that was a significant Constitutional issue or problem for all the occasional line drawing difficulties that you had. What begins to emerge at the end of the 19th century is a somewhat different beast. agencies begin to differ from what went before in three major ways. One of them was that increasing numbers of agencies were established as independent agencies. And what that means is independent from the President who cannot remove the officers of those agencies. The second way in which those agencies differ from just about everything and anything that went before, is that they make rules with binding legal force. So the ICC engaged in rate making for railroads and that pretty much looks like legislative activity. And so you have a delegation problem in that way. and you have to ask yourself in what way, and to what extent is Congress allowed to delegate or re-delegate, law making authority, to administrative agencies and what exactly is it that distinguishes law making, which cannot be delegated, from more mundane routine administrative rulemaking. The third thing I should say is that, frequently these agencies also have adjudicatory functions. That is to say they administer disputes, you know, between carriers and the agency itself. And some of those adjudicatory functions look suspiciously like the kinds of things courts had done traditionally, that is to say decisions over private affairs, private disputes between employers and employees and so on and so forth. That too is a delegation problem. When it's a delegation of judicial powers or the reallocation of the judicial power of the United States to administrative agencies. And that leads you to the sort of put it all together piece. It now looks like these agencies combine functions, legislative functions, rule making adjudicatory functions, and of course, core executive functions of making the programs work, in one body. And the question is to what extent, if any, is that consistent with the United States Constitution and the separation of powers?

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