Separation of Structures
Alex Zhang
ABSTRACT
In a series of decisions, Free Enterprise Fund, Seila Law, and Collins v. Yellen, the Supreme Court struck down for-cause removal restrictions over agency heads. These rulings fault structural elements of the respective agency — double-layer protections or single directorships — for violating separation of powers because they insulate the agency from presidential review and oversight. But while the Court increasingly relies on agency structures to adjudicate constitutionality, separation-of-powers scholarship has focused on the division of powers into legislative, executive, and judicial functions.
This Article supplies the missing account of separation of structures, in the process defending the legitimacy of the administrative state against its critics. It argues that institutional structure is integral to separation of powers and deeply rooted in the Founders’ reception of ancient Greek and Roman political philosophy. By introducing the link between institutional design and the Constitution, separation of structures sketches a doctrinal terrain of how judicial adjudications of agency structure could proceed beyond the formalist approach latent in the Court’s recent decisions. By shifting the doctrinal focus from the nature of political functions to the design of accountability mechanism in governance structures, this Article provides strong support for the constitutionality of congressional delegation of legislative powers to agencies. This more capacious understanding of structural separation of powers accords with constitutional design and better accommodates the dynamic needs of modern regulation.
INTRODUCTION
Modern separation-of-powers doctrine is in disarray. While the Supreme Court routinely decides questions of interbranch conflict, agency structure, and delegation, both its approaches and the cases’ outcomes feature sharp disagreement and immense unpredictability. Much of the contemporary jurisprudence on the President’s power to remove agency officials, for example, derives from two contrasting precedents. In Myers v. United States, the Court held that the Decision of 1789 gave the President constitutional entitlement to remove executive branch officials for any reason. A mere nine years later, in Humphrey’s Executor, the Court empowered Congress to specify for-cause removal conditions for independent agencies with quasi-legislative and quasi-judicial functions. Today’s debate tracks this disagreement: after Morrison v. Olsen articulated an open-textured inquiry of whether removal restrictions impede the President’s ability to execute his Take Care duties, the Court reversed course by adopting, in Free Enterprise Fund, a bright-line rule that dual-layered for-cause restrictions are unconstitutional. Such incongruity extends to other spheres of doctrinal engagement. With respect to congressional grant of adjudicative authority to non-Article III tribunals, the Court has applied a pragmatic test and concluded that an agency’s jurisdiction over common-law counterclaims is constitutional; the Court has also taken a more formalist approach and held that such jurisdiction contravenes separation of powers. When determining which officials are “inferior Officers” for the purposes of the Appointments Clause, the Court has characterized an independent counsel — not subordinate to any executive-branch officers — as an inferior officer, while defining, a decade later, inferior officers as those supervised by principal officers. The latest victims of this doctrinal quagmire are the Consumer Financial Protection Bureau (CFPB) and the Federal Housing Finance Agency (FHFA): the Court — splintered on ideological lines — invalidated for-cause removal restrictions on those agencies’ directors.
Underpinning these doctrinal puzzles are patterns that only muddy the waters. The Court has announced, with some consistency, the purpose of its separation-of-powers doctrine: to erect “structural protections against abuse of power [that are] critical to preserving liberty.” But precisely how (or why) policing the confines of government bodies’ distinct powers contributes to individual freedom is unclear, and the mechanisms of effectuating that goal unpredictable. The Court has considered a combination of three factors: function, power, and design. It has asked whether the function, or the type of authority, exercised by the government body is of the kind constitutionally assigned to it by its Vesting Clause: for example, whether the Commodities Futures Trading Commission’s jurisdiction over common-law claims represents an exercise of judicial function. It has asked whether the magnitude of one actor’s authority impedes the ability of another to fulfill its constitutional responsibilities: for example, whether the CFPB has “potent enforcement powers” and “extensive adjudicatory authority.” It has also considered issues of institutional design: for example, whether congressionally mandated for-cause removal conditions create a double layer of protection for executive personnel. But precisely which factor the Court will emphasize (and the interaction among them) remain a puzzle. In particular, it is unclear whether considerations of design constitute an independent analysis or are merely parasitic upon issues of power and function. For these reasons, scholars have characterized separation-of-powers doctrine as a “hoary non sequitur” and criticized it for “lack of progress.”
Academic commentary has not successfully explained the doctrinal variation. Scholars have developed complex models to ground the Court’s separation-of-powers jurisprudence. But those models only underscore disagreement over the fundamental building blocks of their theories. Relying on the Vesting Clauses, scholars have argued that the three constitutional branches of government are each assigned distinct functions. These separation models, however, suffer from inconsistency with contemporary practice, not the least from the rise of the powerful administrative state. Other scholars have committed to a more fluid balance among the branches and proposed judicial intervention as a means to restore accountability and good governance. But these balance models offer little doctrinal determinacy and threaten non-justiciability. Most attempts to combine the two main approaches are limited to specialized arenas and have not generated consensus. The most recent scholarly strands have suggested exogenous approaches that abandon existing doctrinal molds altogether.
This Article argues that, in contemporary discourse about separation of powers, an important piece of the puzzle is missing. The Article articulates a theory of separation of structures, which in its simplest version posits that political authority should depend not only on the power being exercised but also on the institutional structure of the government entity that exercises the power.
Previous theories — separation and balance models alike — have focused exclusively on the nature or the magnitude of the contested functions: for example, whether an agency in the executive branch has performed actions that are adjudicative in nature (and therefore encroached on the judiciary), or whether Congress has assigned to itself so extensive an authority as to disrupt the distribution of powers among the constitutional branches. But an account of separation of powers is incomplete without considering the structural design of the entity performing the contested functions: for example, whether an agency’s unitary structure concentrates power and heightens the need for accountability, or whether a multimember body facilitates deliberation and expertise necessary for technical decisionmaking. The caselaw of the past decade has unmistakably established the relevance of institutional design. This Article supplies this missing account of institutional structure in separation of powers.
Importantly, separation of structures originated in ancient Greek and Roman political theory, indelibly shaped the Founding generation’s understanding, and formed an integral part of the constitutional design. Separation of powers — the structural and the functional strands — finds its genesis in Aristotle’s typology of regimes, which divides constitutions into six types based on the numerosity of the governing class and constitution’s compliance with (or deviation from) the normative ends of government. Polybius, a second-century Greek historian, transforms this typology into a theory of mixed government. None of the basic Aristotelian constitutional forms (monarchy, aristocracy, and democracy), individually considered, instantiates desirable political design. The perfect constitution incorporates each regime type. Separation of structures remained highly influential in the early-modern period: Montesquieu subscribed to a version of the model, and the British political theorists adapted it to justify the constitutional setup of England. The Founding generation, well versed in classical philosophy and ancient history, saw separation of structures and mixed government as background assumptions of any successful constitutional design. Although the Founders ultimately abandoned the British (what I call the sociological) notion of mixed government, the structural provisions of the Constitution, with its institution of representation, evinced a return to Aristotelian separation of structures. The absence of separation of structures in contemporary discussion accounts in part for the doctrinal disarray and the scholarly disagreement.
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.
The remainder of the Article proceeds as follows. Part I situates separation of structures within the existing scholarly models. Part II turns to the classical and early-modern origins of separation of structures. Part III examines the adoption of separation of structures as part of Founding-era constitutional design. Part IV discusses doctrinal and scholarly implications.