Mistakes Precedent and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best
Introduction A little over forty years ago, Justice Jackson characterized the rise of the administrative state as "probably the most significant legal trend of the last century." 1 He coined the term "Fourth Branch" to describe administrative agencies and contended that this fourth branch "has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking." 2 Today, forty years later, our legal theories remain deranged. Current approaches to separation of powers problems remain inadequate to the task of coping with the administrative state. The reason is simple. The structural Constitution 3 sets forth a system of government that allocates power among three depart ments. 4 This division is intended to ameliorate the corrupting effect of power. Thus, the powers delegated to each department are carefully limited in scope, and each of the three departments acts as a check on the power of the others. In Madison's justly famous words, "ambition must be made to counteract ambition." 5 There is no room for a fourth branch within this tripartite scheme of governance. In exercising executive, legislative, and judicial power, administrative agencies combine powers that the Constitution separates; moreover, agencies are subject to none of the checks imposed upon the three traditional departments. In short, the administrative state is unconstitutional. Nevertheless, the Supreme Court has not invalidated the post-New Deal administrative state as inconsistent with the constitutional text. The Court's unwillingness to do so is, in large part, pragmatic. Even if the Court were ...