The Statutory Separation of Powers.

• Author: Jacobs, Sharon B.

ARTICLE CONTENTS INTRODUCTION 380 I. STATUTORY SEPARATION OF POWERS 386 A. Why Separate and Balance Statutory Powers? 387 1. Statutory Separation of Powers as a Limit on Presidential Authority 390 2. The Administrative Virtues of Fragmentation 394 B. The Shape of the Doctrine 395 1. Separation 395 2. Checks and Balances 399 a. Veto Gates 400 b. Agenda Setting 401 c. Emergency Overrides 402 d. Sequential Decision-Making 403 e. Interagency Delegation 403 f. Leadership Intermingling 404 II. SEPARATING ENERGY POWERS 405 A. Background 406 B. Crisis and Reorganization 407 C. Separating Powers 411 D. Checks and Balances 415 1. Agenda Setting 415 2. Concurrence Requirements 419 3. Emergency Overrides 422 III. EVALUATING STATUTORY SEPARATION OF POWERS 427 A. Initial Allocations 428 B. Lopsided Aggrandizement 432 C. Adjusting the Balance 437 1. Congress 438 2. Agencies 439 3. Courts 441 CONCLUSION 444 INTRODUCTION

The nature and extent of presidential power over administrative agencies is a central question in administrative law. The case in favor of expansive presidential control is grounded in the democratic accountability and efficiency that the President can bring to agency action. (1) Opponents of strong presidential control, however, are less convinced that presidential involvement yields true accountability or transparency. (2) Presidential involvement may also undermine rather than promote efficiency, especially when that involvement manifests as painstaking review of agency action by the Office of Management and Budget (OMB). (3) Separately, some worry that Presidents will sometimes interfere with the exercise of neutral expertise by administrative actors and thwart congressional intent as embodied in agencies' authorizing statutes. (4) As a result, some argue that Presidents should merely oversee agency action, not substitute their own decisions for those of agency heads. (5)

Congress, as the architect of the modern executive branch, can shape and control presidential power in a given policy domain through its statutory delegations. One important way in which Congress has designed agencies to resist presidential encroachment is by vesting all administrative authority on a given matter in an independent, bipartisan commission. (6) By preventing the President from removing the heads of such agencies without cause, Congress eliminates or at least limits a key source of presidential influence. Other structural determinants of agency independence include multimember structure, partisan balance, litigation authority, and self-funding mechanisms. (7)

Congress might also compromise by dividing authorities between agencies operating at varying degrees of remove from the White House. Such a compromise preserves some of the advantages of executive oversight while preventing total control by the President within a given policy domain. By dividing statutory authorities among administrative agencies, and by setting up checks and balances between them, Congress can influence not only the internal dynamics of the administrative state but also the relationship between the constitutional branches of government. Because constitutional architecture inspires these arrangements, this Article names them the "statutory separation of powers."

Scholars have recently begun to explore the myriad relationships among agencies more carefully. (8) These relationships are diverse and complex. They provide opportunities for synergy (9) as well as conflict. (10) And they have implications for presidential control over administrative policy. Although Presidents may enhance their authority by aggregating the functions of various agencies under certain conditions, (11) the division of policy authority between multiple agencies can also be a liability for entrepreneurial executives.

This Article incorporates insights from political science and legislative history to shed light on precisely how and why Congress creates particular statutory allocations of authority between agencies operating in the same subject area. It focuses on one particular relationship: that between the Department of Energy (DOE) and the Federal Energy Regulatory Commission (FERC). This relationship was forged in the crucible of dueling external forces: the energy crises of the 1970s and the Watergate scandal. (12) It therefore offers a window into Congress's design choices in the face of pressure from the White House to centralize and consolidate federal energy authorities, as well as a countervailing impulse to diffuse power horizontally as a safeguard against executive aggrandizement.

In the mid-1970s, Congress faced a choice. As retribution for the United States' support of Israel in the Arab-Israeli War of 1973, Arab oil producers imposed an embargo on shipments to the United States. (13) The embargo caused widespread gasoline and electricity shortages. (14) In response, Presidents Nixon, Ford, and Carter each sought to consolidate federal energy authority in an executive agency subject to presidential control. (15) The recent emergency lent a sense of urgency to these actions, which were accompanied by the usual laundry list of justifications concerning the relative speed, decisiveness, and coordination of the executive branch. (16) President Carter ultimately proposed a new cabinet-level Department of Energy to coordinate federal energy policy. (17)

But Congress balked. Legislators had no desire to set up "an all-pervasive, all-powerful czar of energy in this country" (18) through legislation. Instead, the Department of Energy Organization Act of 1977 (DOE Act) divided federal authority over energy between two new agencies: one an executive department, the other an independent commission. These two agencies, DOE and FERC, were each granted key powers to shape and regulate federal energy markets. Clark Byse, who published the authoritative account of the DOE Act, (19) was an advocate of stronger, more centralized executive energy authority. "One is tempted to protest," Byse wrote of the division of powers between DOE and FERC, "that this is a hell of a way to wage war: in the sunshine with an eviscerated commanding general." (20) And yet Congress remained firm.

Debates on the bill were peppered with references to the well-worn concept of separation of powers and its corollary, checks and balances. Senator Charles Percy (R-Ill.), the ranking Republican on the Senate Committee on Government Operations, explained that the legislation set up a "carefully constructed balance of power between the Secretary and [an independent agency]." (21) And the Senate Committee on Governmental Affairs's report indicated their reluctance to give responsibility for "both proposing and setting [energy] prices" to a single administrator, "especially where such person has a multitude of other policy and administrative responsibilities." (22) Congress also set up checks between the two agencies, allowing each to serve as a safeguard against policy aggrandizement by the other. (23) Representative Robert McClory (R-Ill.) objected to an early version of the bill that vested more concentrated authority in DOE by noting that "[o]ur way of government includes checks and balances and safeguards," and observing that the bill was "deficient in failing to provid[e] these safeguards." (24)

Congress's division of responsibility between agencies in the DOE Act, and its creation of entanglements, or checks, between them, is thus an exemplar of the statutory separation of powers. The Act's separation and balancing was inspired by its constitutional cousin. It addresses many of the same concerns, including the perils of aggregating power in a single actor and the desire to prevent rapid shifts of power. Rather than concerning itself with the exercise of power in the federal government as a whole, however, it addresses these concerns in the context of a single policy domain.

The Article proceeds as follows. Part I introduces the idea of a statutory separation of powers. It argues that, steeped as Congress is in the tradition of constitutional separation of powers, it is only natural that it should at times replicate those design principles in its legislative delegations. This Part first explains how separating statutory powers both checks executive authority and responds to concerns about administrative accountability. It then offers a new typology of statutory separation and checks and balances to explain the phenomenon and define its limits. This typology demonstrates the diversity of options available to Congress in crafting horizontal relationships between federal agencies.

Part II presents the case study. It describes the DOE Act's passage and its separation of powers between DOE and FERC. It first presents the division of horizontal authority in historical context. Next, it describes Congress's allocation of authority between the two agencies and the statutory entanglements between them. Finally, it details these entanglements using the typology created in Part I.

Part III turns to the overlooked temporal dimension of agency relationships. The statutory separation of powers has its origin in Congress's design decisions, but like its constitutional counterpart, it evolves over time. Although separating and balancing statutory powers can be a useful strategy for avoiding concentrations of authority within the administrative state, it is a delicate business. This Part considers broader lessons from the evolution of the DOE Act's statutory scheme for the statutory separation of powers. It focuses on three areas in particular: the initial allocation of powers, the risk of executive-agency aggrandizement, and the need to adjust power allocations over time. It argues that certain types of separation and balance, notably those that divide authority between an independent agency and an executive department, are particularly unstable. These instabilities and the risk that executive agencies will read...