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

This Essay responds to Jon Michaels’s claim, insightfully developed in his recent Article, that the administrative realm functions as a self-regulating ecosystem. Michaels’s claim rests on his description of a trio of administrative rivals that mirror the constitutional branches: The civil service manifests key rule-of-law qualities of the judiciary, agency heads mimic the partisan leadership of the presidency, and—of greatest interest here—civil society plays the “popular, deliberative” role of Congress. Michaels argues that this “administrative separation of powers” legitimates and appropriately constrains agency action. Further intervention by the constitutional branches, in his view, is generally unnecessary and destabilizing.

Michaels’s intriguing comparison between civil society and Congress raises important questions about the oversight function of each institution. I argue that substituting civil society for Congress runs the risk of replicating—and likely exacerbating—pathologies of inequality and exclusion that undermine oversight’s democratic value. Both Congress and civil society are prone to elitism and representational failures that fall short of constitutional ideals. Yet because their respective mandates, structures, and capacities differ, the two institutions are likely to perform better oversight in tandem than civil society could alone. Congressional oversight, I argue, may channel a different and somewhat more inclusive perspective than civil society alone. At the same time, civil society has advantages over Congress: It can give voice to political minorities, act more swiftly and decisively, and engage with agencies more consistently over time. Taking account of the flaws and attributes of each institution thus points toward a reorientation of Michaels’s model. Rather than casting the administrative sphere as self-regulating in isolation, we should focus on the complementary nature of the administrative and constitutional rivals.

Miriam Seifter, Complementary Separations of Power, 91 N.Y.U. L. Rev. Online 186 (2016).

On February 24, the Supreme Court will hear oral argument in Hughes v. Talen Energy Marketing. In deciding this case, the Court must determine whether an effort by the State of Maryland to incentivize the construction of new power plants is field preempted by the Federal Power Act (“FPA”)—that is, whether the Maryland law intrudes on an area that is exclusively the federal government’s to regulate.  This Comment urges the Court to evaluate Maryland’s regulation under a conflict-preemption, as opposed to a field-preemption, standard. In particular, the Court should clarify that field preemption—a doctrine that prohibits any state regulation in a particular area of the law—applies only when a State targets the core aspects of federal jurisdiction under the FPA, namely the Federal Energy Regulatory Commission’s (“FERC”) ability to determine whether a wholesale rate is just and reasonable.  Conflict preemption—which provides that state laws are preempted only when they interfere with or frustrate the federal regulatory regime—provides a far superior framework for evaluating the type of law at issue in Hughes.  It conforms more closely to the FPA’s core objectives, furthers important state policies, and somewhat paradoxically, enhances FERC’s ability to regulate effectively the aspects of the electricity sector under its jurisdiction.  Not only is a conflict-preemption approach good policy, it is also entirely consistent with the Court’s FPA preemption jurisprudence.  In particular, the Court’s prior decisions can be read to support a less intrusive field-preemption inquiry—a reading which, this Comment argues, should be applied the facts before the Court in Hughes.

Matthew R. Christiansen, FPA Preemption in the 21st Century, 91 N.Y.U. L. Rev. Online 1 (2016).