Alex Zhang, Emory University School of Law, has posted Separation of Structures, which is forthcoming in the Virginia Law Review:
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.--Dan Ernst
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.
