Christopher S. Yoo (Vanderbilt University - School of Law) has posted Can Interagency Dialogue Serve as the New Separation of Powers? (Yale Law Journal Pocket Part, Vol. 116, November 2006) on SSRN. Here is the abstract:
In a recent essay published in the Yale Law Journal, Prof. Neal Katyal proposes a series of structural reforms within the executive branch to compensate for what he sees as the collapse of Congress's ability to serve as an effective check on executive power. In this brief response, Prof. Christopher Yoo questions whether the balance of power has tipped decisively in the administration's favor by identifying new institutional mechanisms through which Congress exerts control over the executive branch. Prof. Yoo also points out the extent to which Prof. Katyal's argument depends on a expertise-centered conception of the federal bureaucracy that has been contested by such noted scholars as Marver Bernstein, Richard Stewart, William Niskanen, Lawrence Lessig, and Cass Sunstein. Creating internal divisions within the executive branch also dampens executive energy and accountability in areas in which such considerations are often critical. Finally, history counsels humility regarding the law's ability to check executive power and suggests that the ultimate protections against presidential aggrandizement may be political rather than legal.
