Regulation and the Separation of Powers

This essay argues that current regulatory roles of administrative agencies, Congress, and courts are not fully consistent with separation of powers principles. Regulatory agencies often hold all three governmental functions, including judicial-like punitive sanctioning powers and comprehensive legislative powers for setting major regulations, with almost no supervision by other branches of government. Courts tend to grant de facto immunity from judicial review to many regulatory actions of administrative agencies under different types of deference doctrines, while Congress holds merely supervisory veto power over regulations. Executive regulatory functions are also misaflocated, as decisions in specific cases with particular applicability are sometimes made by the legislative branch via enactment of laws, rather than by agency action. This essay suggests an innovative theory, both descriptive and normative, of the relationship between regulation and the separation of powers, bringing together constitutional law, administrative law, and regulation scholarship.