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Introduction
Zero-sum arguments are common in discussions of the administrative state. Such an argument was forcefully presented in Free Enterprise Fund, where the Court wrote, "In a system of checks and balances, '[p]ower abhors a vacuum,' and one branch's handicap is another's strength."1 This zero-sum argument has gained considerable force in recent challenges to agency design. Under the zero-sum framework, one branch's diminished control over the administrative state necessitates a gain to the other branches. Typically, the President's loss is Congress's gain, although this is not always the case.2 Empowered by this baseline understanding, opponents of a particular structure argue that limitations on presidential control disrupt the separation of powers, impermissibly altering the balance required by the Constitution.
But the zero-sum argument is not the only one to appear in agencydesign case law. In Free Enterprise Fund, for instance, the Supreme Court considered whether two layers of for-cause removal protection violated Article II's Vesting Clause.3 In finding the protection unconstitutional, the Court expressed concern that "the diffusion of power carries with it a diffusion of accountability."4 Insulating officers through two layers of removal protection "subverts . . . the public's ability to pass judgment" on the President.5 In other words, the agency's design was impermissible because it limited political accountability. This concern exists without regard to a corresponding gain by Congress.
it is worth noting that these two concerns are not identical. in the first situation-commonly known as "aggrandizement"-power had passed from the President to Congress, compromising the balance between politically accountable actors. in the second situation-the context of "diffusion"-power had passed from the President to unaccountable hands, beyond the reach of the electorate altogether.6 These two arguments are frequently conflated under the broad rubric of separation of powers,7 and the zero-sum argument is the mechanism through which this happens. For example, the Fifth Circuit recently ignored diffusion while holding that the Federal Housing Finance Agency is unconstitutionally structured because "when one branch tries to impair the power of another, this upsets the co-equality of the branches and degrades the Constitution's deliberate separation of powers."8
This Essay contends that the zero-sum argument is misplaced and not required by existing law. A decrease in the executive's control over the administrative state does not always correspond with...