Professor Sharon Jacobs on The Statutory Separation of Powers

Professor Sharon Jacobs talks about her recent article, The Statutory Separation of Powers. Separation of powers forms the backbone of our constitutional democracy. But it also operates as an underappreciated structural principle in subconstitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. Like its constitutional counterpart, the “statutory separation of powers” seeks to prevent the dominance of factions and ensure policy stability. But separating and balancing statutory authority is a delicate business: the optimal balance is difficult to calibrate ex ante, the balance is unstable, and there are risks that executive agencies might seek expansion of their authority vis-à-vis their independent counterparts. After exploring a case study involving the Department of Energy and the Federal Energy Regulatory Commission, the article concludes with recommendations for how Congress, agencies, and the judiciary might mitigate these tendencies and preserve the statutory separation of powers as a meaningful safeguard against the perils of concentrated executive policy-making authority.