All legislative Powers herein granted shall be vested in a Congress of the United States . . . .
— U.S. Const. art. I, § 1
Typically, when Congress and the President delegate to an executive agency, they delegate everything: the power to issue binding rules, adjudicate violations of those rules, and send agents knocking on doors to enforce those rules.1 Many find this perfectly well and good.2 But others consider the vast swath of powers now housed in the executive a violation of the constitutional separation of powers (the “frustrated formalists”3).4 Others don’t see a constitutional problem and like the efficiency of today’s delegations (the “functionalists”5) but have practical concerns, such as the consolidation of power in the executive branch6 and the neutering of Congress.7 Many of these issues are bipartisan.8 And yet, the frustrated formalists bang on a door that closed long ago,9 and the functionalists don’t see any way to address their concerns while preserving what they find practically useful about today’s delegations.10
This Note proposes something new.11 Next time Congress and the President pass a law, they should delegate powers to the branches in line with their constitutional role: formal and notice-and-comment rulemaking power (think, legislating) to congressional agencies and enforcement power (think, executing the law) to executive agencies, with each branch retaining control over its own agencies. This Note would apply the same logic to administrative adjudications and judicial agencies, but that argument is left for another day.12 In short, the argument is to separate the powers in the administrative state.
All of today’s constitutional guardrails could continue to apply, albeit modified. The “intelligible principle” standard13 could continue, in this new context, to constrain the rulemaking authority that Congress and the President delegate to congressional agencies (as opposed to presidential agencies). Removal doctrine could limit the ability of Congress and the President to insulate congressional officers from removal (as it does today for executive officers).14
This proposal might seem radical, but it is a constitutional and normative upgrade. To the frustrated formalists, this would be unconstitutional if the administrative state had never been born,15 but by returning rulemaking authority (which in their view is legislative power16) to the legislative branch, this would present a constitutional “second best”17 that should be sanctioned as a workable alternative to repeatedly failing to put the rulemaking genie back in the bicameralism and presentment bottle.18 And, to the functionalists who don’t see a constitutional problem, this proposal keeps constant much of what they appreciate, like efficiency, while improving what they find disquieting, like the concentration of power and neutering of Congress. The proposal is thus more faithful both to the Constitution and to ideals of democracy.
Part I details the proposal. Part II addresses its second-best constitutionality, taking as a given the frustrated formalist premise that rulemaking is legislative in nature. Part III addresses its functional desirability and effects on consolidation of power, efficiency, stability, and accountability. The final Part concludes.
I. The Proposal
A. Background and Motivation
A little over a century ago, the modern administrative state was born.19 The growth in federal responsibilities from the Civil War and New Deal eras meant that Congress was unable to legislate with as much particularity as it often had in the preceding century.20 Congress then increasingly delegated broad administrative powers to agencies.21 The Constitution “failed utterly to . . . make any direct provision for the exercise of administrative powers.”22 But the job had to get done. Although there were, and are to this day, congressionally controlled Article I agencies with narrow responsibilities,23 the most powerful agencies were the Article II agencies, and it was to those agencies and their experts that more and more responsibilities were delegated.24 To impose regularity on these delegations, the Administrative Procedure Act25 (APA), characterized as a “subconstitution,”26 was enacted in 1946.27
Today, the Article II administrative state is immense, and its powers are vast. The 2016 Code of Federal Regulations was over “175,000 pages and included . . . more than . . . one million regulatory restrictions.”28 “[T]he executive enjoys binding . . . power . . . [to] dictat[e] what Americans can grow, manufacture, transport, smoke, eat, and drink.”29 When grade school civics students wonder why30 the President can unilaterally order executive agencies to exempt hundreds of thousands of immigrants from deportation,31 regulate carbon emissions requirements,32 or fire and replace immigration judges33 without Congress, these vast powers are largely why.34
Ever since the rise of the modern regulatory state, there have been people deeply uncomfortable with what they view as legislative activity happening within the executive branch (the frustrated formalists). From academics,35 to Supreme Court justices,36 to senators,37 these people decry what they see as a violation of the separation of powers. The standard fix proposed is to limit delegation via a stronger nondelegation doctrine and reemphasize the traditional legislative process.38
These arguments have failed to gain traction in the face of widespread pragmatism by functionalists across the judiciary39 and academy,40 who might have some practical concerns, like the risk of authoritarianism,41 but who, for the most part, accept the administrative state and reject formalist arguments about delegation as too disruptive.42 The functionalists have largely trounced the formalists, producing failure after failure of nondelegation challenges.43
The functionalists find allies in the nonfrustrated formalists who provide a theoretical grounding for delegations. On their view, an exercise of validly delegated rulemaking authority is an exercise of executive power.44 On this view, whenever Congress and the President grant rulemaking power to the Executive, the exercise of that power is executive.
Legal concepts aside, there is something obviously right about the functionalist position. A government that fits the perfect strictures of the Constitution but lets its people starve,45 its borders go unwatched,46 its rivers burn,47 or that fails to address whichever ends one wishes their government to pursue, is not much of a government.48 Even people deeply uncomfortable with executive rulemaking seem to acknowledge the strength of this view by distancing themselves from the strictest formalists.49 And, all that aside, as a political matter, almost a century of precedent makes clear that there is insufficient appetite for demolishing the administrative state.50
But there is also something obviously right about the frustrated formalist position: The legal concept that rulemaking becomes executive when delegated is more fiction than reality.51 Many rules promulgated by executive agencies are literally called “legislative rules.”52 Justices occasionally call out this fiction, saying things like “legislative authority is routinely delegated to the executive branch.”53 And the average person — in grander terms, “We the People,”54 the ultimate sovereign55 — upon hearing that “[l]egislative power . . . is the authority to make laws,”56 and learning how agencies, after years of public debate and scrutiny57 and subject to judicial review,58 pass binding rules — like the EPA’s regulation of tailpipe emissions,59 the FDA’s prohibition of synthetic food dyes,60 or the FCC’s elimination of net neutrality61 — likely understands those activities as lawmaking. It is probably only due to decades of brilliant, motivated reasoning that many lawyers have rejected that simple truth.
It is typically assumed that one must choose between preserving the administrative state and accepting the premise that rulemaking is an exercise of legislative power.62 This Note suggests a way to accept what both get right. The functionalists are right that gone are the days when all rulemaking can happen through bicameralism and presentment. But the frustrated formalists are also right that rulemaking is legislative in nature and that giving legislative power to the President is in deep tension with the Constitution. The proposal that follows is designed to satisfy both camps, giving the frustrated formalists a constitutional second-best outcome that improves upon today’s status quo, and giving the functionalists a fix for some of their concerns, like the consolidation of power in the executive branch, while keeping constant what they appreciate, like efficiency.
Before detailing the proposal, a word about assumptions. Anyone who views the legal concept of delegated-rulemaking-as-executive as a truth rather than a legal fiction will remain unpersuaded by the legal arguments in this Note. As for those open to the frustrated formalist premise, it is tempting to refrain from defining exactly how much rulemaking today is legislative and instead suggest that if one suspects that some is, then this proposal should have appeal. But for clarity’s sake, this Note will focus on the “essentialist”63 position that some powers, like the power to issue binding rules that govern conduct, particularly when accompanied by formal procedures, are inherently legislative regardless of who wields them.64 In other words, this Note assumes that anything that looks like formal or notice-and-comment rulemaking is legislative.
Finally, consider the size of this Note’s constituency. Many people care to some degree about functional arguments, so if Part III is persuasive, that alone may carry weight. It is less obvious that there are many people who accept legal arguments based on frustrated formalist premises (as in Part II). However, these premises are growing in popularity on the bench65 and in the academy66 (though likely not enough for the Court to endorse a strong nondelegation doctrine67). And it is possible that many who reject the frustrated formalist premise sympathize but stay silent for want of a practical solution.68 This Note provides one and might encourage more timid formalists to come out of the woodwork. Concededly, the inverse might also be true: There may be frustrated formalists with a distaste for regulation per se69 who might not be as committed to rulemaking-as-legislative if presented with a proposal that leaves rulemaking in place — as this one does. Altogether, if this Note can appeal to some frustrated formalists and appease the functionalists, it may have a substantial constituency.
B. Separating the Powers
This Note proposes taking the vast rulemaking authority currently delegated to Article II agencies and delegating that power to Article I agencies. To illustrate: Today there is one SEC. In this Note’s world, there would be an executive agency, SEC-E, to enforce the law and a legislative agency, SEC-L, to promulgate regulations. Article I agencies like SEC-L would pass rules pursuant to statutory delegations without bicameralism and presentment, subject to notice-and-comment and publication requirements, just as agencies do today. The only change would be control. The President would control executive agencies and Congress legislative agencies.
Existing constitutional guardrails could continue in full force. Today, the nondelegation doctrine constrains the delegation of rulemaking power to Article II agencies by requiring that it come with an “intelligible principle.”70 That doctrine purports to delineate “impermissible” legislative delegations from “permissible” delegations of rulemaking power71 — contrary to the frustrated formalist premise that all rulemaking is legislative.72 Instead, in this context, the intelligible principle test could be seen as a limitation on the scale of bicameralism and presentment violations. From that angle, the same constraint could apply equally to Article I delegations.
Removal doctrine could also remain in force, albeit modified. Today, that doctrine constrains the ability of Congress and the President to insulate Article II officials from removal.73 The President, in whom the Constitution vests the executive power,74 should not be “impede[d]” from “perform[ing] his constitutional duty.”75 Analogously, Congress and the President should be constrained in their ability to impose statutory removal restrictions on Article I officials because Congress, in whom the Constitution vests the legislative power,76 should not be impeded from performing its constitutional duty to exercise the legislative power. A congressional removal power doctrine has not yet been articulated, and it might differ slightly from the Article II context depending on the staffing model, but such a doctrine could and should be developed by analogy.77
The concept of Congress staffing agencies leaves some people scratching their heads, but it is simple and common. Two models currently exist. The first is where a chamber of Congress chooses its own officers through an internal vote. For example, the Clerk of the House and the Speaker of the House are each chosen by majority vote of the House.78 Some of these positions were once extremely powerful.79 These same procedures could govern the selection of congressional rulemakers. For example, when Congress creates a new SEC-L director position by statute, it could vest the power to appoint that officer in the Senate.80
The second model is where Congress vests the power of appointment in individual officers. This method is less well-known, but there are hundreds of existing congressional commissions staffed like this.81 Power over a single appointee can be given to some number of officers who must agree. For example, the Congressional Budget Office Director is appointed jointly by the President pro tempore of the Senate and the House Speaker.82 Or appointment power can be given to individual officers in the House or Senate. For example, the Adams Memorial Commission statute allocates four appointments each to different legislative leaders.83 Which one of these configurations best serves the American public would be up to the President and Congress (or a veto-proof Congress). It would, in short, be subject to the political process.
Such a separation of powers in the administrative state would be more faithful to the Constitution and to democratic ideals. The following Parts explain why.
II. Constitutional Considerations
This Part demonstrates why this proposal is a constitutional “second best”84 that should be constitutionally sanctioned, even if unconstitutional as an original matter. It takes as a given the frustrated formalist view that some actions, like notice-and-comment rulemaking, are inherently legislative.
The constitutional second best theory is that, where a “practice . . . is both unconstitutional under formalism and [practically] irreversible . . . [t]he Court is required to seek a second best solution because its duty is to the balance of power embodied in the constitutional text.”85 Per frustrated formalists, much of the administrative state is unconstitutional.86 But it has become “irreversible” as a practical matter,87 as evidenced by almost a century of failed nondelegation challenges.88 It is thus the duty of a frustrated formalist to seek a workable constitutional second best.89
One famous formalist applied this logic to another congressional tool. “[T]he legislative veto helps compensate for widespread, unconstitutional delegations to agencies. A first-best world would have neither delegations nor legislative vetoes, but a world with both delegations and legislative vetoes is closer to the correct constitutional ‘baseline’ than is a world with only delegations.”90
Constitutional second best arguments can be tricky because there is no objective metric for what counts as an upgrade.91 But there is at least one frame that most frustrated formalists could likely agree on: a proposal reducing existing constitutional violations while creating no new violations. Today, according to a frustrated formalist, the administrative state violates the Article I Vesting Clause92 and flouts bicameralism and presentment.93 In this Note’s world, the former problem would be solved — legislative power would be returned to the legislature.94 The bicameralism and presentment problem would continue to the same degree — no worse.95 And there would be no new violations of otherwise-undisturbed clauses (like the Appointments Clause).96 Altogether, that makes this a constitutional upgrade that, under the theory of constitutional second best, a court sympathetic to frustrated formalist premises should sanction.97
A. The Vesting Clauses, Structure, and History
The Vesting Clauses and their structural separation of powers implications straightforwardly support this proposal once the frustrated formalist position is assumed. The Constitution “vest[s]” “legislative Powers” “in a Congress.”98 Taken together with the other Vesting Clauses (executive99 and judicial100), formalists find it clear that vesting the legislative power in Congress means that it cannot be vested elsewhere, like in the President.101 Taking as a given the view that rulemaking is legislative, today’s administrative state violates the Vesting Clauses and their separation-of-powers implications. Separating the powers in the administrative state and giving Congress control over rulemaking would balm these constitutional violations.102
This argument is further supported by history. No one can know the Founders’ views on an administrative state that has more employees than 1780 America had people,103 but they clearly abhorred consolidations of power.104
Some may argue against this proposal by pointing to Founding-era fears of the legislature. Those fears were real.105 But Founding-era fears of the executive were pervasive.106 And the Constitution often evinces a textual favoritism for legislatures.107
However, more than any one branch, the Founders feared consolidation of power in any set of hands.108 Specifically, they feared different types of powers in the same hands. In the words of Montesquieu: “When the legislative and executive powers are united in the same person, . . . there can be no liberty . . . .”109 That is why the Constitution separates the powers via the Vesting Clauses.110 Separating the powers in the administrative state would thus remedy today’s Vesting Clause violations and bring the government more in line with constitutional text, structure, and history.
B. Bicameralism and Presentment
For this proposal to qualify as a constitutional second best, it must constitutionally improve (as shown above) without making existing arrangements worse. This proposal does not violate bicameralism and presentment any more than today’s administrative state does. Furthermore, a Court persuaded by the constitutional second best argument need not overrule key precedents to uphold this proposal. Those cases could have their outcomes preserved because they presented meaningfully different scenarios. And, if not, they had logical errors and should be overruled.
One argument for why this proposal poses a greater threat to bicameralism and presentment than today’s arrangement is that this proposal could decrease uses of bicameralism and presentment.111 When Congress delegates discretion to the Executive, it has a “structural incentive”112 to avoid ambiguity because it knows it will lose control over interpretation. If Congress could delegate to its agencies, it might intentionally pass ambiguous laws to give its agencies more leeway to interpret and avoid the high-friction requirements of bicameralism and presentment.113
This argument, however, falls into a familiar trap of eliding a piece of legislative reality: the President’s role.114 “Typically, the President is as essential to the passage of legislation as Congress.”115 Their vote is required for almost all legislation,116 and they often recommend new legislation.117 Only with a veto-proof Congress does the structural incentive critique flow in one direction. But out of tens of thousands of bills passed, very few have ever survived a veto.118 So today, the President has similar structural incentives to embrace ambiguity as Congress would have in a world of legislative self-delegation. Presidents are incentivized to approve ambiguous statutes so that executive agencies have broad interpretive leeway.119 Structural incentives thus do not suggest that congressional delegations tomorrow would create more bicameralism and presentment violations than presidential delegations today.
Even if the Court were sympathetic to the constitutional second best argument, it might feel bound by contrary precedent. But it might not be. Just as with Article II removal cases, the reasoning of past cases could be glossed while keeping their results.120 Taken at face value, the relevant precedents seem to bar this proposal, but their outcomes can be preserved by reading them as turning on a critical difference between separated and unseparated powers — a concern that this proposal does not implicate.
In INS v. Chadha,121 Congress tried to retain residual control, via a legislative veto, over power it delegated to the Attorney General to suspend deportations.122 Chadha held the legislative veto unconstitutional because a single chamber of Congress was exercising legislative power.123 That reasoning would bar this proposal. But Chadha’s outcome could be preserved via different reasoning. Specifically, any time the Attorney General made a deportation decision, one house of Congress could override that same decision.124 Thus, the branches of government could step on each other’s toes, exercising the same administrative power at the same time. This could be a meaningful issue. If both branches can make the same decision in a similar manner, however one characterizes that power (legislative or executive), to an essentialist, one branch necessarily exercises a power that it should not. The present proposal would not have that problem because it would not have two branches sharing the same power (for example, rulemaking over immigration) at the same time.
Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc.125 (MWAA) is another case in the Chadha family tree.126 In that case, Congress delegated primary responsibility for developing policy over the Washington D.C.–area airports to a body controlled by Virginia, Maryland, and the District of Columbia, subject to the veto of an Article I agency.127 MWAA held that the governing body was unconstitutional because it was an impermissible legislative subdelegation.128 But MWAA could similarly be preserved by relying on different reasoning — specifically, vertical, as opposed to horizontal, separation of powers principles. Congress granted the state-run entity (as opposed to the executive in Chadha) rulemaking authority with a reversionary veto power in a congressional agent.129 Although the case explicitly disavowed federalism concerns,130 making this a harder gloss, Congress and the states were at risk of stepping on each other’s toes, presenting a similar problem as in Chadha.131
Emerging from these two analyses could be the proposition that if rulemaking power is delegated, it must be without residual control to prevent a separation of powers violation by having two branches (or sovereigns) exercise the same kind of power. These concerns, while not endorsed in the cases, were floating in the background. Chadha cast aspersions on the “‘sharing’ with the Executive by Congress of its authority,”132 and the MWAA certiorari petition described the arrangement there as a “delicately-balanced and innovative institution of federalism.”133 And similar separation of powers concerns have been raised in myriad other contexts. For example, there is a long line of cases barring Congress from sharing the power to decide cases with the judiciary.134 Viewed in this proposed light, the cases above present no barrier to this Note’s proposal, which would have Congress give rulemaking power over some topic to its own Article I agencies, without sharing that same power with the executive or with the states.
In the alternative, if these proposed reinterpretations are unpersuasive, grappling with those cases on their own terms reveals flawed reasoning, and the cases should be overruled. Those cases determined that Congress’s attempts to subdelegate legislative functions were impermissible because Congress could generally exercise legislative power only via bicameralism and presentment.135 However, given the essentialist position that legislative actions continue to be legislative when delegated, this reasoning fails to make sense on its own terms. “The Chadha Court’s deceptively simple reasoning cannot be taken at face value.”136 In the same breath that the Chadha Court denounced giving a sub-branch of Congress the power to suspend deportations, it sanctioned giving that same power to an agent of the executive branch despite the similar lack of bicameralism and presentment.137 This incongruity may be part of why the reaction to Chadha was a “deafening” “uproar.”138 MWAA was more ambivalent about the nature of the power at issue,139 but if that power were legislative, it presented similar problems as in Chadha, and if executive, it would be inapplicable to this proposal, as discussed below. The question the Court never grappled with, but with which any formalist hoping to rely upon these precedents must, is why the same delegation to the executive branch is more constitutional than to the legislative branch. Despite Chadha being “among . . . the fifty most important cases in [Supreme Court] history,”140 it never explained the discrepancy.
One other line of precedent can be dispensed with relatively quickly. Bowsher v. Synar141 and Springer v. Philippine Islands142 held that Congress may not exercise executive power.143 But under the frustrated formalist view, this Note’s proposal does no such thing. It returns legislative power to Congress.
Thus, this proposal does not violate bicameralism and presentment any more than today’s administrative state does, paving the way for its constitutional second best stature. Precedent that might stand in the way can be glossed as resting on the problem of unseparated powers and, to the extent that is unpersuasive, can be overruled based on logical formalist flaws.
C. Independent Agencies
Seila Law LLC v. CFPB144 and the various precedents145 restricting Congress’s power to impose removal protections on executive officials might also appear to prohibit this proposal. However, this proposal deals with congressional officials, not executive officials. Those cases rested on the premise that “[i]f any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.”146 Thus, Congress’s power to impose removal restrictions on Article II officers is limited.147 This Note’s proposal, by contrast, would not involve Congress’s stepping on the President’s domain. Instead, Congress would have separate agencies and would leave executive officers alone.
D. Appointment Power
Even if one accepts the foregoing arguments, one might want a textual basis for Congress’s power to appoint agents and imbue them with rulemaking powers.
At the outset, one possibility is that Congress concedes the appointment power, and retains just removal power. As explained in the preceding subsections, this arrangement would be permissible because, as posited, these appointed officers exercise legislative power. They would thus be analogous to the Comptroller General — appointed by the President and removable by Congress.148
Turning to appointment power, Buckley v. Valeo149 presents a potential barrier to Congress’s appointing officers with significant authority — if it does, it contains flaws and should be overruled; but it may not present a real conflict at all. In Buckley, the Court held that officers exercising significant authority are principal officers that must generally be appointed by the President pursuant to Article II, Section 2.150 It declined to decide whether congressional officers like the Speaker or Clerk of the House are principal officers.151 As to inferior officers, the Court noted that there was no such thing as congressional Heads of Departments in whom the appointment of inferior officers could be vested.152
The text of the Constitution grants the House and the Senate the power to “chuse their [own] Officers.”153 And the Appointments Clause contains an explicit carveout for all officers “whose Appointments are not herein otherwise provided for”154 — which might include all congressional officers chosen via these “Choosing” Clauses. This is the argument that Buckley declined to address — which leaves open the possibility of Congress’s appointing its own rulemaking Officers of the United States. And, crucially, the Choosing Clauses are not limited to members of Congress: “[L]egislative officers may be members of the legislature . . . or else outsiders.”155
If Congress wishes to also vest the appointment of inferior officers in its principal officers, Buckley presents a clearer barrier. But there is an argument it was incorrect and should be overruled. “[T]he Congress may by Law vest the Appointment of . . . inferior Officers . . . in the Heads of Departments.”156 “Departments” are thought of as executive, but they could also be legislative. “[B]oth the Constitution and its framers seem to conceive of at least two types of ‘departments’ — executive and not . . . . [Nonexecutive departments were] created by Congress and if Congress cho[se], entitled to a degree of protection from ongoing presidential control.”157 These arguments were raised in defense of mixed-control independent agencies and rejected by the Supreme Court,158 but could have a new life in this separated-powers context, in which they might suggest that the appointment of inferior officers may be vested in the heads of congressional departments — for example, officers chosen via the Choosing Clauses.
Finally, assuming the power to appoint its own officers, the Necessary and Proper Clause159 gives Congress the power to imbue those officers with rulemaking authority as a matter of constitutional second best. That clause is the current basis for Congress’s power to delegate rulemaking power (when connected to an enumerated power and in line with the nondelegation doctrine).160 However persuasive that is, this Note’s separated-powers administrative state seems at least as necessary and likely more proper. Practically, the administrative state has come to be viewed as “necessary” to the administration of government.161 And, as much of this Note attempts to show, Congress is a more “proper” home for the administrative machinery of rulemaking than the executive branch. In a world without today’s administrative state, the Necessary and Proper Clause might not give Congress the power to delegate either to the President or to itself. However, as long as the administrative state remains necessary in its modern form, the constitutional rationale of second best suggests Congress can imbue its own officers with rulemaking power.
III. Normative and Practical Considerations
There are plenty of practical concerns, like consolidation of power, efficiency, accountability, and stability, raised by this proposal. For the functionalists, who care more about these questions than about formalist niceties,162 this proposal keeps constant the aspects of the administrative state that they appreciate, like efficiency, while ameliorating many of their concerns, like the consolidation of power in the executive branch and the neutering of Congress.
A. Consolidation of Power
Across the political spectrum, Americans have become concerned with the consolidation of power in the executive branch. Fears of presidential authoritarianism today are acute on the political left.163 But, not long ago, the political right was the primary fount of concern.164 And history supports these concerns. Executives arrogating power from legislatures has been a precipitating cause of dictatorship, from Nazi Germany to President Vladimir Putin’s Russia.165 It rarely happens the other way around.166
This proposal would greatly ameliorate this problem by reestablishing Congress as a coequal branch of government. The drift of power from Congress to the President was tightly linked to the development of the Article II administrative state167 — a situation this proposal would address.
Further, the problem of consolidation of power in the executive branch would not simply get recreated under a new branch. Congress would be regaining control over only legislative power, while leaving the power to execute the laws — like sending FBI agents to knock on doors — with the President. So, unless Congress started arrogating executive power, sending rulemaking back to Congress would not recreate the problem.
B. Accountability
To some, Congress is a more accountable branch than the Executive, and it has been repeatedly neutered168 — a problem this proposal would fix. Reasonable minds differ as to the relative democratic accountability of the President and Congress, with some noting that the President is elected nationwide,169 and others focusing on Congress’s two-year election cycles, its smaller ratio between representative and represented, and the fact that Congress is the only directly elected institution in the Constitution.170
Those who view Congress as the more accountable branch should find this proposal attractive. If Congress picked rulemakers, it would become reinvigorated. Congressional elections might once again become independently important rather than mere referenda on the President.171 Thus, to the extent one’s democratic sympathies lie with Congress, sending power back to Congress in this way would be a functional upgrade.
C. Efficiency
The greatest functional concern with separating the powers in the administrative state is efficiency.172 As then-Professor Woodrow Wilson explained in 1887, the point of the administrative state is to centralize expertise and circumvent the high-friction system of checks and balances.173 A modern government requires “the utmost possible efficiency,” which necessitates “large powers and unhampered discretion.”174 To Wilson and his supporters, the present proposal might be a downgrade if it diminishes efficiency.
But the separated-powers administrative state would retain many of the efficiencies of the current system, for better or worse. Congressional rulemaking agencies would not go through bicameralism and presentment any more than executive rulemaking agencies do.
This proposal might produce other inefficiencies.175 For example, no longer housing all experts (executive, adjudicative, and legislative) under the same roof may eliminate some workplace efficiencies of the modern administrative state.176 Further, depending on the staffing model, a multimember appointing body might be more internally conflicted than an individual supervisor like the President, which might lead to slower filling of vacancies and more conflicting instructions to officers. And finally, there might be an opportunity cost to Congress in deciding whom to appoint — in other words, congresspeople might spend less time on other issues if they become managers of a sprawling bureaucracy. All these points are uncertain and contestable, but on the whole, these efficiency impacts are likely minor compared to avoiding bicameralism and presentment.177
Note as well that, as the frustrated formalists might say, a little less efficiency can be a virtue that increases deliberation and decreases the risk of authoritarianism.178 In sum, this Note’s proposal keeps efficiency largely constant, and to the extent it decreases efficiency at all, a little more deliberation (and thus a smaller risk of authoritarianism) might be worth it.
D. Stability
Another concern is that the separated-powers model might produce more instability in federal policy. Members of the House have two-year terms,179 compared to the President’s four.180 It is entirely possible that the power to control agencies could occasionally be given directly to the House. In such a world, the party in charge of certain rules could change every two years, as opposed to every four. That would lead to less stability in rulemaking.
That, however, might not happen. Congress and the President, in their next delegation, might decide that some rules have a greater need for stability and long-term planning and therefore leave those under the control of the Senate (with its staggered six-year terms181). They might likewise decide that other rules require more responsiveness and leave those with the House. This flexibility might allow government to be both more stable and more responsive.
But even if rulemaking agencies were placed under the control of the House, that might not be so bad. Elections are supposed to have consequences. Less regulatory stability might produce more democratic accountability and more engagement from voters.182 To the extent one likes that tradeoff, one should be sympathetic to Congress and the President being able to delegate rulemaking power to bodies like the House that have more frequent turnover.
Conclusion
Congress may very well enjoy its subordinate role and never assert itself. It is hard to have responsibility — it comes with more attention and accountability.183 But it is possible that the legislature will be interested in experimenting with this proposal. In that case, the point of this Note has been to encourage Congress to do so and to provide a sketch of the constitutional arguments in support when a legislative subdelegation is challenged.
These arguments might also serve as constitutional fodder. The next time a judge feels uncomfortable with the amount of delegation to the Executive but sees no practical way out, this Note suggests the possibility of striking down a challenged delegation to the President and, in an aside, opening the door to the same delegation to Congress.
Anyone who sees rulemaking in the executive branch as a perfect fit and who has no practical concerns with the consolidation of power in that branch will likely be unpersuaded. But hopefully, to all others, this Note has proposed a sketch of why separating the powers in the administrative state would be both normatively desirable and more constitutional. Continuing down the current path would be a missed opportunity to reinvest American democracy with representative strength and would betray the Founders, who risked charges of treason to break the yoke of the King and establish a government of separated powers by the people and for the people.184