The Place of Agencies in Government: Separation of Powers and the Fourth Branch

In the pages following I argue that, for any consideration of the structure given law-administration below the very apex of the governmental structure, the rigid separation-of-powers compartmentalization of governmental functions should be abandoned in favor of analysis in terms of separation of functions and checks and balances. Almost fifty years of experience has accustomed lawyers and judges to accepting the independent regulatory com- missions, in the metaphor, as a "headless 'fourth branch"' of government. Although the resulting theoretical confusion has certainly been noticed,' we accept the idea of potent actors in government joining judicial, legislative and executive functions, yet falling outside the constitutionally described schemata of three named branches embracing among them the entire allocated authority of government. What would be the consequences of so viewing all government regulators? I believe such a shift in view would carry with it significant analytical advantages by directing our focus away from the truly insignificant structural and procedural differences between the "independent regulatory commissions" and other agencies to the relationships existing between each such agency and the three named branches. Each such agency is to some extent "independent" of each of the named branches and to some extent in relationship with each. The continued achievement of the intended balance and interaction among the three named actors at the top of government, with each continuing to have effective responsibility for its unique core function, depends on the existence of relationships between each of these actors and each agency within which that function can find voice. A shorthand way of putting the argument is that we should stop pretending that all our government (as distinct from its highest levels) can be allocated into three neat parts. The theory of separation-of-powers breaks down when attempting to locate administrative and regulatory agencies within one of the three branches; its vitality, rather, lies in the formulation and specification of the controls that Congress, the Supreme Court and the President may exercise over administration and regulation.