Notice & Comment

Ad Law Reading Room: “Separation of Powers by Contract: How Collective Bargaining Reshapes Presidential Power,” by Nicholas Handler

Today’s Ad Law Reading Room entry is “Separation of Powers by Contract: How Collective Bargaining Reshapes Presidential Power,” by Nicholas Handler, which is forthcoming in the NYU Law Review. Here is the 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.

This impressively rich and detailed article has a little bit of everything. It’s partly a somewhat counterintuitive history of how collective bargaining gained a foothold in the federal bureaucracy. Partly an in-depth empirical examination and set of case studies shedding light on how collective-bargaining rights affect the exercise of presidential power. And partly a more normatively oriented reflection on what Handler’s findings reveal.

Together, its various components make the article an engaging contribution. Handler shows how federal collective-bargaining rights contribute to structuring the executive branch through law. Unions negotiate agreements, those agreements result in legal cases in which federal workers are often victorious, and all of it affects important matters of public policy. At the same time, the presence of collective bargaining introduces an additional source of friction into the system, muddying the top-down picture of the bureaucracy and injecting a democratic element often overlooked in the literature.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.

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