Separate Branches--Separate Politics: Judicial Enforcement of Congressional Intent

Abstract

The paralysis that characterized American politics during the 1980s generated new interest in the separation of powers. While traditional studies of separation of powers focused on constitutionallevel conflicts between Congress and the president, recent scholarship instead focuses on courts and the administrative state. There is good reason for this shift of emphasis: the erosion of political parties and the emergence of divided government as a regular feature of American politics since 1968 have enhanced the value of the bureaucracy and the judiciary as forums for ordinary policy making. Rather than focusing on these broad structural and institutional developments as causes of legalization of the administrative state, many conservative critics have portrayed judges, particularly in lower courts, as unilaterally intervening to usurp administrative authority. According to this view, judges shackled administrative agencies by creating unreasonable requirements for regulatory rulemaking and by refusing to defer to agency interpretations of statutory standards and