Because the modern administrative agency combines executive, legislative, and judicial powers, various authorities throughout history have argued that the fundamental structure of the administrative system is unconstitutional. Recently, the relationship between the separation of powers doctrine and the administrative state has returned to the foreground of both American politics and constitutional law. Attempts by the current executive branch to rein in the policy and rule making activities of "independent" federal agencies have resulted in both praise and cries of foul from the legal community and Congress.' These attempts at executive branch control have been precipitated by a perceived shift in the United States Supreme Court's position on the separation of powers doctrine. The Court's recent decision striking down certain provisions of the Gramm-Rudman-Hollings Deficit Control Act has greatly increased the belief that the existence of independent agencies is in danger. Moreover, a strong belief now exists that the original functional justifications for the independent status of certain agencies have collapsed, taking with them any possible justification for excluding these agencies from the President's control.'
This Note will demonstrate that wholesale rejection of the need for the independence of certain administrative agencies is unwarranted. Careful analysis of the most recent cases addressing the independence issue reveals that the constitutional notion of separation of powers can co-exist with the notion of the independent agency. While recent Supreme Court decisions have stressed the need for strict separation of the three named branches and have declared unconstitutional specific attempts to further the scope of the administrative state, they have not precluded the existence of a properly created independent agency.
William H. Hardie, III,
The Independent Agency After Bowsher v. Synar--Alive and Kicking,
40 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol40/iss4/6