Separation of Powers at the Crossroads
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mission. This commission would carry out the will of Congress through
general statutes, but would be responsible for the day-to-day enforcement of the laws through the issuance of rules and regulations and the
adjudication of disputes arising under them. Thus was born the National
Labor Relations Board in 1935, which is actually neither the first nor the
only commission dealing with labor problems. In large measure, however, the NLRB is now the repository of power that once belonged to the
States.
In the second place, the creation of the NLRB and other such commissions, as previously noted, has tended to weaken separation of powers.
It is simply humanly impossible for members of Congress to monitor the
activities of all these commissions, which employ millions of people and
issue thousands of highly technical regulations annually. Important policy decisions are thus actually made on a routine basis by Federal employees, many anonymous, who enjoy tenure under the Civil Service Act
and cannot easily be removed from office or controlled by Congress.
The existence of so many independent commissions exercising so much
power also frustrates the executive branch. The President has no say in
their operation, yet is responsible for the general enforcement of the laws.
Executive unity and uniformity of policy may also suffer if the President
is pursuing one policy and a commission is moving in another direction.
Since members of these commissions serve staggered terms, the President may even find that certain commissioners appointed by a previous
President are actively working against him to undermine his programs.
Likewise, the courts have experienced difficulty in restraining overzealous regulators who may have exceeded their authority. Administrative decisions handed down by the commissions are subject to review by
the regular courts. But only a small percentage are actually adjudicated
because there are not enough judges or courts to handle the great volume
of disputes. Much of what is actually decided in the commissions is
never reviewed by the judges. Moreover, many of the rules and regulations in question are highly technical or scientific in nature, and beyond
the range of judicial expertise. This further weakens the ability of the
courts to superintend the commissions.
Critics argue that Congress, having decided it wants to regulate every-