The Interdependent Relationship Between Internal and External Separation of Powers
| Publication year | 2009 |
The Interdependent Relationship Between Internal and External Separation of Powers
Gillian E. Metzger
It has been the best of times and the worst of times for internal separation of powers. Over the past few years, internal checks on executive power have been a central topic of legal academic debate—rarely have details of public administrative structure received so much attention. To some extent, this sudden popularity reflects growing interest in questions of institutional design.1 Unfortunately, however, another reason for this attention is the prominent erosion and impotence of such internal constraints under the recent administration of President George W. Bush.
Though differing in subject area and form, the instances in which the Bush Administration appeared to evade and perhaps violate internal constraints on administrative decisionmaking can largely be grouped under the heading of politicization of administration.2 Some involved allegations that agency decisions, such as EPA's denial of California's application for a waiver to set automobile emission limits for greenhouse gases or FDA's refusal to allow the Plan B emergency contraceptive to be sold over the counter, were being determined by White House ideology and politics instead of statutory criteria and professional assessment.3 Others involved charges of misuse of personnel
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decisions for political purposes, such as claims that political affiliation and ideology were a basis for civil service hiring at the Department of Justice (DOJ).4 Still others involved efforts to restrict information dissemination and insert White House appointees into agency rulemaking decisions—allegedly to serve the Bush Administration's political agenda.5 Yet another category involved efforts to evade or silence dissenting internal voices, a well-documented phenomenon with respect to development of national security policy.6
A possible lesson to draw from these incidents is that internal constraints ultimately are of limited effect in checking aggrandized presidential authority. That conclusion seems unduly pessimistic. Instances also exist in which internal resistance played an important role in constraining the Bush
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Administration's efforts to push its policy beyond legal limits.7 Constraints that are ineffective in high-profile policy disputes may have significantly greater potency in less public and politically charged contexts—and in high-profile contexts, even internal checks with limited effect may be preferable to no checks at all. Moreover, presidential insistence on a policy position over internal resistance may not actually be an example of internal constraint failure. Instead, sometimes such insistence may exemplify the kind of constitutionally desirable direct presidential oversight of Executive Branch decisionmaking that fosters political accountability. At a minimum, no clear line separates forceful presidential assertion of regulatory priorities and presidential aggrandizement, as recent discussion of the Obama Administration's expansion of White House policy staff demonstrates.8
I therefore see benefits from paying greater attention to internal administrative design and in particular to analyzing what types of administrative structures are likely to prove effective and appropriate in different contexts.9 But I believe that attending to internal constraints alone is too narrow a focus because it excludes the crucial relationship between internal and external checks on the Executive Branch. Internal checks can be, and often are, reinforced by a variety of external forces—including not just Congress and the courts, but also state and foreign governments, international bodies, the media, and civil society organizations. Moreover, the reinforcement can also work in reverse, with internal constraints serving to enhance the ability of external forces, in particular Congress and the courts, to
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exert meaningful checks on the Executive Branch. Greater acknowledgment of this reciprocal relationship holds import both for fully understanding the separation of powers role played by internal constraints and for identifying effective reform strategies.
One aspect of this dynamic meriting additional attention is the link between internal Executive Branch constraints and external legal doctrine. Contemporary separation of powers doctrine makes little effort to reinforce internal constraints on the Executive Branch; instead it largely focuses on whether internal constraints intrude too far on presidential power, to the extent it considers such constraints at all. This stands in contrast to administrative law doctrine, which focuses primarily on behavior internal to the Executive Branch and often seeks to encourage Executive Branch adherence to constraints on agency action. This division of labor is not coincidental; the availability of administrative law restrictions on agencies is one reason why the courts have not sought to link internal and external constraints as a matter of separation of powers analysis. Judicial concerns about unduly intruding into congressional and presidential choices in structuring administration, and about the courts' limited competency on questions of institutional design, are likely in play as well. Yet greater exploration of how separation of powers doctrine could be used to reinforce internal Executive Branch constraints appears justified, especially given the important separation of powers function that internal constraints can serve.
In this Essay, I first describe internal separation of powers mechanisms and the constitutional role they can play. I next take up the question of whether these constraints are effective checks on Executive Branch overreaching and emphasize the mutually reinforcing relationship between such internal constraints and external checks on the Executive Branch. Finally, I discuss the general failure of current separation of powers doctrine to directly connect internal and external constraints and analyze whether including such a linkage would be appropriate.
The meaning of "internal separation of powers" is not immediately self-evident. The Constitution says rather little on separation of powers, but the provisions that do address the issue focus overwhelmingly on external relations between the branches—whether it be the branches' division and assignment of
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distinct powers (as in the Vesting Clauses) or their subsequent intermixing (as in provisions for a presidential veto and senatorial advice and consent).10 Although a few constitutional requirements directed at operations within each branch do exist,11 the constitutional pattern for internal branch arrangements is either silence or express grants of discretion.12 Indeed, to a constitutional formalist intent on maintaining sharp divisions among the branches and policing against efforts by each branch to exceed its proper sphere,13 the concept of internal separation of powers may seem a contradiction in terms. As a result, some explication and description of what internal separation of powers measures are, as well as an assessment of their constitutional status, is warranted.
A. Internal Separation of Powers Defined
The very idea of internal separation of powers is premised on a functionalist approach to constitutional interpretation that emphasizes general separation of powers principles rather than their specific manifestations in the constitutional text.14 These principles, well familiar from the Supreme Court's separation of powers jurisprudence, include the division of the federal government's powers "into three defined categories, Legislative, Executive, and Judicial,"15 as well as the intermixing of the branches through "a carefully crafted system of checked and balanced power . . . ."16 Though often invoking these principles in a somewhat conclusory and inconsistent manner,17 the Court
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has identified the ultimate goal of the separation of powers system as protecting liberty and prohibiting tyranny by preventing "the accumulation of excessive authority in a single Branch."18 At the same time, in addition to deterring "arbitrary or tyrannical rule . . . [by] dispersing the federal power among three branches . . . [and] allocating specific powers and responsibilities to a branch fitted to the task, the Framers created a National Government that is both effective and accountable."19 The Court's efforts to secure the sometimes contradictory goals of diffused or checked power on the one hand, and accountability on the other, have focused on preventing "the encroachment or aggrandizement of one branch at the expense of another."20
The defining characteristic of internal separation of powers measures is that they seek to achieve these goals by operating within the confines of a single branch. In contrast, external separation of powers measures operate through interactions among the different branches of government or with other forces external to a particular branch's operations. Although such internal measures are present in all the branches,21 the focus of internal separation of powers scholarship is overwhelmingly on the Executive Branch, reflecting the view that the greatest threat of aggrandized power today lies in the broad delegations
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of power to the Executive Branch that characterize the modern administrative and national security state.22 Moreover, as that view suggests, internal separation of powers is most often equated with measures that check or constrain the Executive Branch, particularly presidential power.
A wide range of administrative structures and other mechanisms could be viewed as serving such an internal Executive Branch checking function. Some appear primarily animated by concerns about...
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