Future directions

• The executive does not merely enforce the law, but also makes it. What consequences should this have for separation of powers? What solutions are available for this problem:

• “Report-and-wait” provisions. Congress might require that, before rules may become effective, they must be submitted to Congress to allow it an opportunity to legislate on the subject (e.g. Federal Rules of Civil Procedure). Would “report-and-wait” provisions be constitutional after Chadha?

• Statute might provide that no agency rule may become effective unless enacted by Congress with participation of President. This statute would convert administrative agencies largely into advisory bodies.

• Congress might provide that agency authority would lapse after a certain number of years, requiring a new statute to permit the agency to continue to exist.

• Congress might provide that action taken pursuant to a certain statute could be taken only if it is approved by both Houses of Congress; such approval could consist of a joint resolution. Would this be constitutional under Chadha?

• House of Reps recently initiated “Corrections Day” to correct uncontroversial statutory gaps and mistakes made by drafters or by administrative agencies interpreting federal statutes. These bills require 3/5 vote for passage. Consider extent to which this functions as a legislative veto.

Administrative agencies and the separation of powers

• The basic idea of separation of powers as applied to Congress is that the maker of the law should not control how the law is applied; it must be applied equally to everyone. Separation of powers is bound up with the notion of “rule of law.”

• Legislature. One explanation of the result in Chadha (though it does not appear in any of the opinions) is that the law was bad because Congress was attempting to control the application of its own standard, so that it mean one thing when applied to its friends and another thing when applied to its enemies.

• Judiciary. Similarly, the judiciary applies the law, but does not get to say what standards it will apply.

• Executive. No such limitation on the executive is possible. Police officers routinely decide which infractions to penalize and which to ignore. Prosecutors pursue some cases vigorously and dismiss others. The inevitable discretion of law enforcement officers means that executive is well placed to benefit his friends and persecute his enemies. The control against executive’s abuse of power is primarily political.

• Article II vests executive power in one person (unlike the legislative and judicial powers). Power is vested in the President, not in subordinate officials. Framers rejected notion of a “plural executive.” (Federalist No. 70).

• Unitary executive helps to ensure (1) expeditious action, (2) coordination, and (3) accountability.

• The rise of administrative agencies threatens all these purposes.

• USC does not explicitly resolve the question whether Congress may immunize subordinate officials from presidential control.

• Would a statute making the EPA free from interference by the President under the Necessary and Proper Clause? Would this statute be inconsistent with framers’ decision to create “unitary executive,” e.g. vest all executive power in one person?