Title: A Two-Tiered Theory of Consolidation and Separation of Powers
Abstract: Not only did the New Deal expand the permissible areas of governmental activity, it also transformed the structure of the Federal Government.President Roosevelt's innovations centralized within large bureaucracies power that previously had been dispersed among the three governmental branches.This consolidation of power fits uneasily into the constitutional framework established by the Founders.This Note explores the jurisprudential implications of the New Deal watershed and elaborates a post-New Deal theory of allocation of governmental power.Part I begins with a discussion of the Federalist theory of separation of powers.'For the Federalists, two conditions ensured an effective separation.First, governmental branches must be institutionally independent; each must be free from control by the others.Second, the branches must be functionally specialized; each must wield a distinct component of governmental power, so that the assent of all three is required for government action.Until the New Deal, the Supreme Court incorporated this theory into its jurisprudence through the nondelegation doctrine, which limited the discretionary authority of administrative agencies.The Court displaced this limitation in the late 1930's and early 1940's with a series of decisions approving massive delegations of authority to the executive branch.Contemporary separation of powers analysts dispute the meaning of the Court's repudiation of the nondelegation doctrine.Separation of powers "purists" insist on maintaining strict boundaries among the legislative, executive, and judicial functions, while "partialists" emphasize the balance of power among institutionally independent branches.Part II presents an alternative, two-tiered theory.According to this theory, the nondelegation doctrine's demise was accompanied by the birth of a "consolidation principle" requiring concentration of the government's operational power within administrative agencies.Such consolidation must 1.In this Note, "separation of powers" refers to a dispersion of governmental authority among distinct governmental entities.See infra text accompanying notes 5-11.Contemporary analysts disagree sharply over the precise features inherent in, or required by, such dispersion, see infra Part I, Section C, but the definition adopted here is intended to capture the common core of the various conceptions of separated powers employed by commentators and by the Court: power spread among many hands, not concentrated in one.