Document Type

Article

Publication Date

2015

Center/Program

Center for Constitutional Governance

Abstract

Peter Strauss's The Place of Agencies in Government: Separation of Powers. and the Fourth Branch1 reshaped contemporary thinking about the constitutionality of federal administrative government. When the article appeared in 1984, the Reagan Revolution was in full swing. Reagan's overtly antiregulatory policy stance and his Administration's advocacy of a highly formalist and originalist style of constitutional interpretation fundamentally challenged the post-New Deal administrative state. Aggressive interpretation of Article II led to controversial strategies of White House control: centralized rulemaking review, appointment of agency heads loyal to the President's (anti)regulatory agenda, and attacks on institutions of administrative independence such as the independent regulatory commissions and career civil servants.2

The Place of Agencies was a masterful defense of the constitutional legitimacy of American administrative government. Professor Strauss insisted on the essential constitutional distinction between the apex- Congress, the President, and the Supreme Court-and the vast apparatus of administration beneath. In this view, the Constitution prescribes strict separation of legislative, executive, and judicial powers only at the apex.3 Below this level, two other structural principles dominate: a separation of- functions requirement rooted in due process and a checks-and balances concern with avoiding excessive accumulation of power in any single governmental entity.4 Administrative agencies are constitutional so long as they have relationships of control and accountability with each of the actors at the apex: "The three must share the reins of control; means must be found of assuring that no one of them becomes dominant."5 In emphasizing the constitutional need for significant relationships between agencies and all of the "opposed, politically powerful actors at the apex of government," 6 Professor Strauss pushed back on assertions of unitary presidential control. Rather, as he developed further in later work, the President is to be an "overseer," not a "decider"-a supervisory role shared in important ways with Congress.7

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