Separation of Powers by Contract: How Collective Bargaining Reshapes Presidential Power

Authors

Nicholas HandlerFollow

Document Type

Article

Publication Date

4-2024

Journal Title

New York University Law Review

ISSN

0028-7881

Abstract

This Article demonstrates for the first time how civil servants check and restrain presidential power through collective bargaining. The executive branch is typically depicted as a top-down hierarchy. The President, as chief executive, issues directives with vast implications for federal policy. Usually, the tenured bureaucracy of civil servants below him follow these directives. Occasionally, when the President’s policies appear corrupt or ill-advised, bureaucrats may illicitly “resist” them. This presumed top-down structure shapes many influential critiques of the modern administrative state. Proponents of a strong President decry civil servants as an unelected “deep state” usurping popular will. Skeptics of presidential power fear the growth of an “imperial” presidency, held in check by an impartial bureaucracy.

But federal sector labor rights, which play an increasingly central role in structuring the modern executive branch, complicate each of these critiques. Under federal law, civil servants have the right to enter into binding contracts with administrative agencies governing the conditions of their employment. These agreements restrain and reshape the President’s power to manage the federal bureaucracy in profound ways and can impact nearly every area of executive branch policymaking, from how administrative law judges decide cases to how immigration agents and prison guards enforce federal law. Under a bargaining regime, bureaucratic power arrangements are neither imposed from above by an “imperial” presidency nor subverted from below by an “unaccountable” bureaucracy. Rather, the President and the civil service bargain over the contours of executive authority and litigate their disputes before arbitrators and courts. Bargaining thus encourages a form of government-wide civil servant “resistance” that is legalistic rather than lawless, and highly structured and transparent rather than opaque and inchoate.

Despite the increasingly intense judicial and scholarly battles over the administrative state and its legitimacy, civil servant labor rights have gone largely unnoticed and unstudied. This Article shows for the first time how these labor rights both restructure and legitimize the modern executive branch. It makes two primary contributions. First, using a novel dataset of almost 1,000 contract disputes spanning forty years, as well as in-depth case studies of multiple agencies, it documents the myriad ways in which collective bargaining reshapes bureaucratic relationships within the executive branch.

Second, this Article draws on primary source material and academic literature to illuminate the history and theoretical foundations of bargaining as a basis for bureaucratic government. The practice developed in the second half of the twentieth century to ensure that American bureaucracy was governed by enforceable legal agreements, subject to oversight by Congress and the courts. It also ensured that the contours of bureaucratic independence were shaped directly by the President and public sector unions, rather than by independent civil service commissions. Contract-based labor relations thus imported key elements of legal and democratic accountability into the bureaucracy, attempting to shore up its constitutional legitimacy in the post-New Deal era. What emerges from this history is a picture of modern bureaucracy that is more mutualistic, legally ordered, and politically responsive than modern observers appreciate.

First Page

45

Last Page

127

Num Pages

83

Volume Number

99

Issue Number

1

Publisher

New York University School of Law

Recommended Citation

Nicholas Handler, Separation of Powers by Contract: How Collective Bargaining Reshapes Presidential Power, 99 N.Y.U. L. Rev. 45 (2024).
Available at: https://scholarship.law.tamu.edu/facscholar/2103

File Type

PDF