Publication Date

4-2022

Journal

Boston University Law Review

Abstract

Today the executive branch is generally seen as the most dangerous branch. Many worry that the executive branch now defies or subsumes the separation of powers. In response, several Supreme Court Justices and prominent scholars assert that the very separation-of-powers principles that determine the structure of the federal government as a whole apply with full force within the executive branch. In particular, they argue that constitutional law prohibits the accumulation of more than one type of power—legislative, executive, and judicial—in the same executive official or government entity. We refer to this as the anti-accumulation principle. The consequences of this principle, applied to its full extension, are vast. It would invite a new era of constitutional policing of the internal structure of the executive branch and administrative agencies.

This Article argues that separation-of-powers law contains no anti-accumulation principle. Unable to find textual support in the Constitution for this principle, proponents latch on to but misread James Madison’s famous statement that the “accumulation of all powers . . . in the same hands . . . may justly be pronounced the very definition of tyranny.” Functional considerations—like fairness, avoiding the triumph of faction, and efficiency— also do not justify the anti-accumulation principle or its application internally to the executive branch.

The anti-accumulation principle is generally posited by jurists and scholars whose leanings are formalist and conservative. However, a set of liberal scholars commit the same error. More focused on checks and balances than on pure separation of powers, these scholars either defend or seek to reform the current structure of the executive branch. In doing so, they either invoke or assume the existence of an anti-accumulation principle, working from the premise that the principles that justified the allocation of power among the three branches must also apply within the executive branch. While the executive branch needs greater constraint, separation of powers neither requires greater internal divisions nor provides a robust menu for reform. To the extent valid constitutional concerns underlie the anti-accumulation principle, they rest on due process and should be evaluated as such.

Volume

102

First Page

925

Publisher

Boston University School of Law

Disciplines

Administrative Law | Constitutional Law | Law and Society | President/Executive Department | Public Law and Legal Theory

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