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Peter Strauss's The Place of Agencies in Government: Separation of Powers. and the Fourth Branch reshaped contemporary thinking about the constitutionality of federal administrative government. When the article appeared in 1984, the Reagan Revolution was in full swing. Reagan's overtly antiregulatory policy stance and his Administration's advocacy of a highly formalist and originalist style of constitutional interpretation fundamentally challenged the post-New Deal administrative state. Aggressive interpretation of Article II led to controversial strategies of White House control: centralized rulemaking review, appointment of agency heads loyal to the President's (anti)regulatory agenda, and attacks on institutions of administrative independence such as the independent regulatory commissions and career civil servants. The Place of Agencies was a masterful defense of the constitutional legitimacy of American administrative government. Professor Strauss insisted on the essential constitutional distinction between the apex – Congress, the President, and the Supreme Court – and the vast apparatus of administration beneath. In this view, the Constitution prescribes strict separation of legislative, executive, and judicial powers only at the apex. Below this level, two other structural principles dominate: a separation of- functions requirement rooted in due process and a checks-and balances concern with avoiding excessive accumulation of power in any single governmental entity.Administrative agencies are constitutional so long as they have relationships of control and accountability with each of the actors at the apex: "The three must share the reins of control; means must be found of assuring that no one of them becomes dominant." In emphasizing the constitutional need for significant relationships between agencies and all of the "opposed, politically powerful actors at the apex of government," Professor Strauss pushed back on assertions of unitary presidential control. Rather, as he developed further in later work, ...

This is one of two complementary essays for a symposium honoring the work of Peter L. Strauss. Also included is the joint introduction. (The second essay is Gillian Metzger, Agencies, Polarization, and the States.) These essays engage one of Strauss's most germinal writings, "The Place of Agencies in Government: Separation of Powers and the Fourth Branch" to consider whether contemporary polarized politics spells the end of the intricate system of multi-branch control and accountability which, Strauss argued, legitimates administrative agencies. Political polarization has become a major focus in contemporary discussions on congressional activity and governance. The tone of these discussions has grown increasingly grim, as many political scientists, argue that a constitutional system of divided and shared powers hardens current levels of partisan warfare into legislative gridlock. Proposals for reform abound. Scholars and political commentators have called for modifications to the electoral process and to party structure, for additional oversight of the culture among members of Congress, and for increased attention to demographics and economic inequality within the electorate. These proposals sometimes conflict, and usually face daunting legal or political obstacles to adoption. In an effort to better assess the likelihood that congressional dysfunction will be the norm going forward, this Essay reviews and synthesizes recent political science literature with the goal of sorting out what we know – and, perhaps more important, do not know – about the nature, extent, and causes of congressional polarization. The Essay begins by discussing standard metrics of congressional polarization and describing alternative approaches that challenge the standard account as overly simplistic. It then looks at historical trends to consider whether the contemporary situation is truly anomalous. Next, it considers the many theories put forth to explain the phenomenon, focusing initially on whether congressional polarization can be explained by polarization in the electorate and then moving to proposals around the electoral process, party structure and culture, and demographics. Finding little support in the literature for the notion that the challenged structures and practices are actually driving legislative polarization, the Essay concludes by suggesting that the rhetoric around congressional polarization – particularly around the likely continuation of partisan warfare and legislative gridlock – is far more negative than the existing evidence can justify.

A new form of online citizen participation in government decisionmaking has arisen in the United States (U.S.) under the Obama Administration. "Civic Participation 2.0" attempts to use Web 2.0 information and communication technologies to enable wider civic participation in government policymaking, based on three pillars of open government: transparency, participation, and collaboration. Thus far, the Administration has modeled Civic Participation 2.0 almost exclusively on a universalist/populist Web 2.0 philosophy of participation. In this model, content is created by users, who are enabled to shape the discussion and assess the value of contributions with little information or guidance from government decisionmakers. The authors suggest that this model often produces "participation" unsatisfactory to both government and citizens. The authors propose instead a model of Civic Participation 2.0 rooted in the theory and practice of democratic deliberation. In this model, the goal of civic participation is to reveal the conclusions people reach when they are informed about the issues and have the opportunity and motivation seriously to discuss them. Accordingly, the task of civic participation design is to provide the factual and policy information and the kinds of participation mechanisms that support and encourage this sort of participatory output. Based on the authors' experience with Regulation Room, an experimental online platform for broadening effective civic participation in rulemaking (the process federal agencies use to make new regulations), the authors offer specific suggestions for how designers can strike the balance between ease of engagement and quality of engagement – and so bring new voices into public policymaking processes through participatory outputs that government decisionmakers will value.