About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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

handle is hein.journals/nyulro92 and id is 1 raw text is: 




                                    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.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most