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This Note explores the jurisprudential implications of the New Deal watershed and elaborates a post-New Deal theory of allocation of governmental power. Part I begins with a discussion of the Federalist theory of separation of powers. For the Federalists, two conditions ensured an effective separation. First, governmental branches must be institutionally independent; each must be free from control by the others. Second, the branches must be functionally specialized; each must wield a distinct component of governmental power, so that the assent of all three is required for government action.

Until the New Deal, the Supreme Court incorporated this theory into its jurisprudence through the nondelegation doctrine, which limited the discretionary authority of administrative agencies. The Court displaced this limitation in the late 1930's and early 1940's with a series of decisions approving massive delegations of authority to the executive branch.

Contemporary separation of powers analysts dispute the meaning of the Court's repudiation of the nondelegation doctrine. Separation of powers “purists” insist on maintaining strict boundaries among the legislative, executive, and judicial functions, while “partialists” emphasize the balance of power among institutionally independent branches.

Part II presents an alternative, two-tiered theory. According to this theory, the nondelegation doctrine's demise was accompanied by the birth of a “consolidation principle” requiring concentration of the government's operational power within administrative agencies. Such consolidation must be sufficient to permit activist regulation. At the same time, the traditional principle of separation of powers remains vital, though limited in scope. The “separation principle” provides the theory's second tier: The ultimate power of control over agencies must be divided among the original three branches.

Part III explains the Burger Supreme Court's two landmark separation of powers decisions as motivated by this two-tiered approach. The Court's rejection of the legislative veto illustrates the consolidation principle. The veto was an attempt by Congress to interfere with the ability of administrative agencies to pursue interventionist agenda. In contrast, the Court demonstrated the continued force of the separation principle by invalidating the Gramm-Rudman-Hollings budget balancing law. Gramm-Rudman-Hollings represented a congressional attempt to exclude the President from participation in ultimate control over the agencies.

Part IV, applying the two-tiered framework elaborated in earlier Parts to an issue of current importance, argues that portions of the Competition in Contracting Act4 (CICA) are unconstitutional. Like the legislative veto, CICA disrupts the consolidation of operational power within administrative agencies.

Finally, Part V offers some normative justifications for a two-tiered theory.

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