An Enduring, Evolving Separation of Powers

This Article sets forth the theory of an enduring, evolving separation of powers, one that checks and balances state power in whatever form that power happens to take. It shows how this constitutional commitment was first renewed and refashioned in the 1930s and 1940s, wherein the construction of a secondary regime of administrative checks and balances triangulated regulatory power among politically appointed agency leaders, an independent civil service, and a vibrant and pluralistic civil society. And it supplies the legal precedent, corrective blueprint, and normative imperative for subsequent generations (including ours) to reaffirm that commitment whenever new threats to limited, rivalrous government arise. This commitment to an enduring, evolving separation of powers helps explain our past and our present — and it readies us for the future. First, reframing the administrative state through the lens of an enduring, evolving separation of powers provides a more seamless connection to the Founding. The twentieth-century shift to administrative governance toppled the Framers' tripartite constitutional regime. But the subsequent construction of an administrative separation of powers represented an act of constitutional restoration, anchoring the modern administrative state firmly within the constitutional tradition of employing rivalrous, heterogeneous institutional counterweights to promote democratic accountability and compliance with the rule of law. Second, this reframing resolves seemingly intractable normative and jurisprudential struggles in contemporary administrative law, harmonizing today's leading (but conflicting) theories and doctrines of public administration. And, third, this reframing prepares us for life in the post-administrative state, a reality that is already beckoning. Increasingly the forces of privatization are consolidating state and commercial power in ways that compromise administrative separation of powers. Understanding privatization not as a sui generis phenomenon but instead simply as the latest, perhaps greatest, threat to an enduring, evolving separation of powers enables us to employ the grammar and doctrinal imperatives of constitutional separation of powers to insist that privatization's proponents take on the responsibility for reestablishing limited and rivalrous governance amid the dynamic turn to the market — or else abandon the enterprise altogether