Jon D. Michaels


Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers

Jon D. Michaels

The theory and reality of “administrative separation of powers” requires revisions to the longstanding legal, normative, and positive accounts of bureaucratic control. Because these leading accounts are often insufficiently attentive to the fragmented nature of administrative power, they tend to overlook the fact that internal administrative rivals—perhaps as much as Congress, the President, and the courts—shape agency behavior. In short, these accounts do not connect what we might call the old and new separation of powers. They thus fail to capture the multidimensional nature of administrative control in which the constitutional branches (the old separation of powers) and the administrative rivals (the new separation of powers) all compete with one another to influence administrative governance.

This Article, the first to connect novel insights regarding administrative separation of powers to old—and seemingly settled—debates over the design and desirability of bureaucratic control, (1) characterizes the administrative sphere as a legitimate, largely self-regulating ecosystem, (2) recognizes the capacity of three rivals—politically appointed agency heads, politically insulated civil servants, and members of the public—to internally police the administrative process, and (3) recasts judges, presidents, and legislators as custodians of the administrative arena tasked with preserving a well-functioning, rivalrous administrative separation of powers.