business law class

Question

Do you feel that an administrative agency should be able to promulgate a rule (Legislative power), enforce the rule (Executive power), and hold an administrative hearing (Judicial power)? Would this violate the Separation of powers under the Constitution? 

Answer 1

You should start by explaining why the answer might be "yes," but ultimately the answer is "no, administrative agencies' use of delegated power does not violate separation of powers".

The short answer is YES. Administrative agencies are functional and effective in large part because they promulgate and enforce rules. Consider the Environmental Protection Agency or the Food and Drug Administration. We want such agencies to be able to promulgate rules specific to their area of expertise, expertise that Congress may not have.

On the other hand, it is impossible to ignore the fact that administrative agencies do, to some extent usurp the legislative, executive or judicial power. Only Congress is supposed to make laws, so when an agency promulgates a rule, that promulgation does to some extent usurp the legislative function of Congress. Only the courts are supposed to interpret the law, so when an administrative agency holds a hearing, that does to some extent usurp the judicial function.

However, it is important to remember that administrative agencies are created either by the judicial or the executive branch themselves. It does not make much sense to say that agencies are usurping the very power given to them by the legislative or executive branch. Delegated power is not power usurped in some unconstitutional way. Also, administrative agencies are governed by federal laws, such as the Administrative Procedures Act (APA), that governs how agencies enact and enforce the rules they promulgate. On the surface, it might seem like administrative agencies violate the constitutional requirement of separation of power, but a deeper dive shows that administrative agencies wield only the power delegated to (not usurped by) them.