Separation of Powers

The US Constitution’s separation of powers has a tremendous impact on federal and state administration. It divides authority over public agencies and administrators. Legislatures and courts, as well as executives, are constitutionally mandated to play substantial roles in public administration. Each branch brings a somewhat different value set to administration.

Almost everybody wants the efficient, economical, and effective government associated with good public management. But at what cost to other concerns? Legislatures write administrative law to promote representativeness, public participation, transparency, and fairness in public administration.

These values are also widely shared by Americans. The same is true of the courts’ efforts to protect the integrity of constitutional structure and individual rights. Maximizing all these values simultaneously is often impossible. One person’s open, participatory public administration is another’s delay and hurdle to achieving programmatic results; a judge’s procedural due process is an executive’s red tape; and so on and so forth.

Yet the separation of powers is not merely about executive, legislative, and judicial controls over public administration; it goes directly to the matter of what public administration should be. Individuals and other entities often sue the agencies that regulate them, fail to satisfy requests under the Freedom of Information Act, or are otherwise thought to be in violation of their rights. Agencies use litigation to enforce statutes and administrative rules. Perhaps to taxpayers’ disbelief, sometimes federal agencies even sue each other.