M. Elizabeth Magill’s research while affiliated with University of Virginia and other places

An administrative agency delegated some task - protect the environment, assure the integrity of the securities markets, improve auto safety - might carry out that obligation by adopting a rule, bringing or deciding a case, or announcing its interpretation of the statute. Although agencies are unique institutions in this respect, this state of affairs generates little comment. This Article aims to rectify that by identifying, evaluating, and coming to terms with the phenomenon of agency choice of policymaking form. That phenomenon can be simply stated: The typical administrative agency is authorized to use a range of distinct policymaking forms to effectuate its statutory mandate and its choice about which tool to rely on appears, at first glance at least, to be unregulated by courts. Part I of the Article will discuss the policymaking tools that statutes and case law typically make available, the significance of the choice among them, and the varying choices that agencies make. Part II takes up the judicial reaction to agency choices of procedure. That judicial reaction, at least at first blush, can be simply described: hands-off. An agency can choose among its available policymaking tools and a court will not require it to provide an explanation for its choice. This judicial reaction is perplexing because it is out of step with the rest of the law of judicial review of agency action. This Part examines possible reasons why courts might treat agency choices of procedure differently than other exercises of discretion, but dismisses each of them as implausible. After setting forth this puzzle in the structure of the law, this Part offers an explanation for it. That explanation is rooted in the fact that courts have a surprising degree of control over the consequences of an agency's choice of form. By adjusting the consequences of choosing one form or another, courts have the opportunity to respond to whatever concerns they might have about an agency's choice. Courts thus review agency choices of procedure, albeit in a roundabout way. Parts I and II are devoted to identifying and analyzing the phenomenon of agency choice of policymaking form. That task is the main object of the Article because these features of administrative law and practice are not now considered worthy of notice. After noticing them, though, the next step is to come to terms with them. Part III of the Article starts that task.

This Article critiques the central commitments of contemporary separation of powers theory and doctrine. It then suggests more promising ways to think about separation of powers disputes, suggestions that derive from the criticisms offered here. The separation of powers provisions of the Constitution are understood as a way of controlling the exercise of state power by fragmenting it among three different institutions and guaranteeing that fragmentation. Conventional separation-of-powers analysis relies on two mechanisms to achieve and maintain the dispersal of state power: separating legislative, executive, and judicial power in three different branches and preserving a balance among those branches. There is vigorous disagreement about the proper characterization of any given dispute, but there is little controversy about the proper framework within which that debate should proceed. There should be. The embarrassing secret is that both commitments at the center of separation-of-powers doctrine are misconceived. The effort to identify and separate governmental powers fails because, in the contested cases, there is no principled way to distinguish between the relevant powers. The effort to maintain balance among the branches fares no better. We do not know what balance means, how to measure it, or how to predict when it might be jeopardized. The deficiencies are partly explained by the most fundamental difficulty with claims about balance among the branches. Inquiring about inter-branch balance is incoherent because it assumes that branches of government are unitary entities with cohesive interests, but that is not true. The branches are made up of individuals and sub-institutions with varying incentives that do not neatly track the institution within which they are located. The criticisms offered here reveal that we are thinking about questions of horizontal constitutional structure in the wrong way. Taking seriously the failings of current ideas offers at least two important lessons for its reconceptualization. The most significant lesson is that, if one is interested in fragmenting state power and assuring that it remains fragmented, the failure of the conventional approaches is of little moment. In the course of noticing that there is no such thing as three essential powers exercised by three undifferentiated branches, we will also notice that government authority is fragmented, widely so, albeit not according to the three-powers-in-three-branches formula. The other lesson is that current efforts go about the ambitious undertaking of matching particular powers with specific decisionmakers in the wrong way. That effort must start with an understanding of how those decisionmakers might exercise that authority, which requires a fine-grained appreciation of the forces that push and pull government actors in one direction or another. A doctrine built around such understandings will offer no easy answers, but it will at least ask the right questions.

This Article argues that contemporary separation of powers commentary is misconceived. Despite the disagreement that dominates the commentary, a closer look at that debate reveals a surprise: commentators subscribe to a consensus about separation of powers. Once exposed, however, that consensus turns out to be underdeveloped, confused, and possibly incoherent. This Article, first, identifies the latent consensus about separation of powers, and, second, critically examines the consensus. The Article argues that the present consensus must be abandoned or refashioned in some as-yet-undeveloped way. Separation of powers commentary is conventionally thought to be dominated by a contest between adherents of "formalist" or "functionalist" methodologies. A closer look at that debate, however, reveals that the description is mistaken; it disguises a robust consensus about separation of powers that one finds at the base of every approach to separation of powers - formalist and functionalist alike. That consensus is civics-class familiar: it calls for dispersal of three government functions among three separate government institutions and equipping each institution with select powers to protect itself and police the other departments. Having exposed the consensus, this Article critically examines it. The consensus simultaneously embraces two different substantive conceptions that are assumed to, but do not, fit easily together. One conception, called here "separation-of-functions," stresses the need to keep the three government powers in different departments; the other conception, called here "balance-of-power," stresses the need to balance the departments of government through the creation and maintenance of tension and competition among them. The two conceptions are conflated or treated as if they easily relate to one another. Muddling the two conceptions together, however, is a mistake because they are distinct and in some ways in tension. Identifying a connection between the two ideas proves fruitless. The consensus, for instance, suggests that separating government functions leads to balance-of-power, but that connection does not hold up to close examination. And treating separation-of-functions as a way of achieving balance-of-power does more than fail; it ignores the independent reasons - reasons unrelated to balance-of-power - one might wish to separate government functions. Finally, the two conceptions suggest different, often irreconcilable, doctrinal concerns. The lesson of this Article, then, is that the consensus must be abandoned in favor of a new set of ideas about separation of powers. The Article takes the first step toward a new consensus by extracting the two distinct and sometimes conflicting conceptions from the muddle of the present consensus. While the latter steps of constructing a new consensus are not completed here, the challenges of those steps are clarified by this effort.