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92 N.Y.U. L. Rev. Online 1 (2017)

handle is hein.journals/nyulro92 and id is 1 raw text is: RESPONSE TOWARD AN INTRA-AGENCY SEPARATION OF POWERS BuAL SHAH* In response to Jon D. Michaels, Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers 91 N.Y.U. Law Review 227 (2016) This Essay responds to Jon Michaels's argument for a form of agency fragmentation called the new administrative separation of powers, a structure consisting of three fundamental sets of actors: agency heads, civil society, and the civil service. According to Michaels, his thought-provoking idea has roots in the traditional separation of powers among the branches of government. Michaels also claims that these three intra-agency actors are able to maintain a self-regulating ecosystem that allows agencies to improve their functions similarly to the way that the constitutional checks and balances sharpen the operation of the political branches. For Michaels's tripartite agency to be legitimately characterized as aform ofseparation of powers, however, there must be a meaningful connection between the two frameworks. As of now, the analogy is hindered by some essentials aspects in which Michaels's agency players do not reflect the three branches ofgovernment. These include, for example, each administrative stakeholder's relative inability to protect its own jurisdiction from encroachment by the others and constraints on agencies' capacity to further rule of law values. These limitations render constitutional separation of powers principles less valuable to the development of Michaels's theory, because they reduce the extent to which the tripartite agency might, in fact, behave like the political branches. In addition, both the use ofMichaels's model for executive-checking purposes and the ultimate success ofhis theory's overall execution depend on the extent to which they are grounded in the concrete characteristics of agencies and the polity. Additional substantiation of Michaels's tripartite could be furthered by analysis of the diversity among agency heads and civil servants across the executive branch and of the weaknesses in civil society's ability to leverage its interests vis-?i-vis government officials. Those seeking to realize the promise of Michaels's model should also consider the impact of differences in administrative, political and societal structures, orientations * Copyright D 2017 by Bijal Shah, Associate Professor, Arizona State University, Sandra Day O'Connor College of Law. My sincere thanks to Jon Michaels for the invitation to respond to his thought-provoking article, and to Eric Berger, Fred Bloom, Josh Chafetz, David Fontana, Randy Kozel, David Pozen, Richard Re, and Jennifer Selin for their insightful comments. All errors are my own.

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