Progressive Political Theory and Separation of Powers on the Burger and Rehnquist Courts

Abstract

This article proposes a positive explanation why the Supreme Court has erratically veered from functionalism to formalism and back in its separation of powers law for almost 30 years. The explanation suggests that most members of the Court are drawing on normative ideas about separation of powers heavily influenced by Progressive political theory. The Progressives generated a theory of government the article identifies as the Progressive theory of apolitical administration. The Progressives held that politics, the formation of a national will, needed to be kept separate from administration, the rational implementation of that will. The basic distinction between politics and administration became an important staple of legal education during and shortly after the New Deal - when most of the Justices on the Burger and Rehnquist Courts went to law school. Most of the Justices on these Courts have relied on Progressive norms about independent administration in deciding separation of powers cases since the 1970s. These Justices have applied formalism and functionalism selectively to promote the Progressive theory of apolitical administration in the Court's case law. If a law transfers power to independent agency administrators, most Justices apply functionalism, cite Progressive normative values in the functionalist analysis, defer to Congress, and uphold the law. If, however, a law enables politicians, and especially members of Congress, to supervise agency administration closely, the same Justices apply formalism to justify striking it down. The article has two main lessons. First, it explains in positive terms a phenomenon that has puzzled administrative-law commentators for years. Second, it offers a useful correction to several leading retrospectives written to date about the Rehnquist Court. The Progressive/New Deal influence in the Court's separation of powers law suggests that there are strong intellectual limits on the extent to which the Rehnquist Court or a future Court may repudiate the constitutional achievements of the New Deal.