The Federalist Society

Controlling the “Fourth Branch”: The Fight Against Agency Capture May be a Losing Battle

April 8, 2004

C. Boyden Gray

Separation-of-powers issues will always confront politicians, judges and policymakers because the principle of the separation of powers is so central to the constitutional design: each branch will forever be poaching on another branch’s turf, as illustrated by the Senate Democrats’ recent bold assertion that a President needs sixty votes to confirm a judicial nominee if any Senator so decrees. The most difficult inter-branch problem, however, is much less glamorous and thus much more difficult to resolve—and that involves oversight and control over the so-called “Fourth Branch” of government—the “administrative state” made up of the many regulatory agencies with alphabet titles like EPA, FDA, FCC and SEC....

Controlling the "Fourth Branch": The Fight Against Agency Capture May Be A Losing Battle  


The Federalist Society