For the past few years the Supreme Court has been struggling with issues of government structure so fundamental that they might have been thought textbook simple, yet with results that seem to imperil the everyday exercise of law-administration. Under what circumstances can Congress assign the adjudication of contested issues in the first instance to tribunals that are not article III courts? The past century has witnessed the profuse growth of legislation assigning to special adjudicative tribunals-administrative agencies and other article I courts-the power to hold trial-type hearings that might otherwise have been placed in the article III courts. Yet in a case challenging such an assignment in the context of the bankruptcy laws,' the Court could not summon a majority to agreement on an opinion. The plurality found the assignment unconstitutional employing reasoning that, despite its best efforts, appears to threaten much administrative adjudication and revive ghosts long thought quieted,2 while the dissent opined in the face of intellectual difficulties with the governing language of the Constitution that it is "too late" to rely on the constitutional text. 3 Can Congress empower bodies other than itself to adopt statute-like rules that acquire the force of law without either receiving bicameral passage in Congress itself or facing the possibility of presidential veto? Article II legislators-that is, executive rulemakers-have been acting at least since the turn of the century as if Congress could so empower them. 4 Faced with challenges to congressional efforts to retain political controls over administrative rulemaking in the form of legislative veto provisions, the Court struck down the legislative veto in a formalistically reasoned opinion5 that struggled to avoid casting doubt on all rulemaking. 6 What protection from litigious interference does the President have in his performance of office? The courts have recognized that congressmen, judges, and their aides require absolute privilege from civil liability for damage alleged to have resulted from their misperformance of office in order to protect their abilities to carry out central functions.7 Yet the Court was barely able to find a similar privilege in the President personally, 8 and only one justice would have extended it to his closest personal aides. 9 The resulting isolation of the Presidency may be understandable given the outrageous conduct apparently involved in those lawsuits-the firing by the President of a whistle-blower' 0 - but exposes the Presidency to external controls and corresponding risks of internal hesitation the courts have seemed quick to oppose for the other branches.
Peter L. Strauss,
The Place of Agencies in Government: Separation of Powers and the Fourth Branch,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/208