Checks, Not Balances

Critics of the administrative state who would revive the nondelegation doctrine and embrace the unitary theory of executive power often assume that each branch 's powers are capable of precise definition, functionally distinct from the others, and that the formal boundaries between each branch are sacrosanct. This Article situates these critiques in Founding Era and nineteenth century debates about the structure of the Constitution. In the 1780s, the Anti-Federalists objected to the Constitution for failing to enumerate a precise taxonomy of each branch's powers, for failing to specify that each branch's powers were exclusive, and for failing to make government officials sufficiently accountable to the voting public. The drafters responded that the Anti-Federalist approach would neither support effective government nor prevent the branches from acting tyrannically. Rather than develop a scheme of discrete and precisely divided powers, as the Anti-Federalists proposed, the drafters preferred precise rules of inter-branch coordination to ensure that no one branch dominates the others. This debate continued throughout the nineteenth and early twentieth centuries, with influential legal minds such as Daniel Webster and Joseph Story rejecting the Anti-Federalist theory of separation ofpowers.

We call this a theory of separation ofpowers based on a principle of anti-domination. On this view, the separation of powers is breached only if one branch deprives another of its procedural capacity to check the others. We further argue that this theory (a) provides a plausible account of the Framers ' understanding; (b) has had significant purchase in the development of inter-branch relations since the Founding and thus can serve as a kind of rational reconstruction of historical practice; and (c) is consistent with the relevant constitutional text and the overall constitutional structure.

INTRODUCTION.90

I. Critiques of the Administrative State

A. The Nondelegation Doctrine.

B. The Unitary Theory of Executive Power

II. Responses to Administrative Skeptics.

A. Doctrine.

B. History.

C. Exigency.

III. A Checks-Based Theory of the Separation of Powers ..

A. A Theory of Checks, Not Balances.

B. Separation of Powers in the Early Republic.

C. Post-Ratification Separation-of-Powers Debates.

D. Post-Ratification History.

1. Separation of Powers in the Nondelegation Cases...

E. Regulating the Executive Patronage.

IV. Modern Administration.

A. Nondelegation.

B. The Unitary Theory of Executive Power.

C. Agency Adj udication.

Conclusion.

Introduction

The concern that...