Modern separation-of-powers jurisprudence—including key decisions decided during the Supreme Court’s 2023-24 term—has been critiqued on the grounds that it constitutes “judicial aggrandizement,” i.e., that it impermissibly empowers federal courts to decide separation-of-powers questions better left to Congress and the President. This “judicial aggrandizement” critique goes too far to the extent it suggests that federal courts may not play any role in enforcing the separation of powers. After all, ours is a system of a President and Congress constrained by a written Constitution—not a King in Parliament free to act outside of judicial constraint. But the “judicial aggrandizement” critique is persuasive to the extent it recognizes that federal courts must not play an exclusive role in policing the separation of powers. That is in part because, as this Essay will explain, administrative agencies can help federal courts enforce the separation of powers.
Recognizing the complementary role that agencies can play in enforcing the separation of powers may require understanding “law” in a new light. That new light—which was actually lit more than two thousand years ago—is offered by a natural law tradition. That tradition recognizes “law” as a tool for instilling in actors those characteristics (called “virtues”) that enable actors to perform their functions excellently. Thus, by treating the “administrative” (i.e., agency action) as “law” (i.e., a tool for instilling virtue), agencies can help legislators develop the virtues that those legislators need to perform their constitutional functions excellently.
To read this Essay, please click here: Treating the Administrative as Law: Responding to the “Judicial Aggrandizement” Critique.
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