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Modern critics of the administrative state portray agencies as omnipotent behemoths, invested with vast delegated powers and largely unaccountable to the political branches of government. This picture, we argue, understates agency vulnerability to an increasingly powerful presidency. One source of presidential control over agencies in particular has been overlooked: the systematic undermining of an agency’s ability to execute its statutory mandate. This strategy, which we call “structural deregulation,” is a dangerous and underappreciated aspect of what then-Professor, now-Justice Elena Kagan termed “presidential administration.” Structural deregulation attacks the core capacities of the bureaucracy. The phenomenon encompasses such practices as leaving agencies understaffed and without permanent leadership; marginalizing agency expertise; reallocating agency resources; occupying an agency with busywork; and damaging an agency’s reputation. Structural deregulation differs from traditional “substantive” deregulation, which targets the repeal of particular agency rules or policies. While substantive deregulation may have serious consequences, it is relatively transparent, limited in scope, and subject to legal challenge. By contrast, structural deregulation is stealthier. It is death by a thousand cuts. We argue that structural deregulation is in tension with constitutional, administrative, and democratic norms. Nevertheless, public law is remarkably ill-equipped to address it. Constitutional and administrative law both have blind spots when it comes to presidential management of the bureaucracy, especially when the President’s mission is incapacitation. Specific statutes meant to protect the civil service or inoculate agency budgets from presidential control do not help much either — they are vulnerable to workarounds. These blind spots and workarounds have allowed structural deregulation to flourish as a method of presidential control, with serious consequences for the future of the administrative state. We therefore propose legislative and regulatory reforms that could help to control the risks of structural deregulation.

Separation of powers forms the backbone of our constitutional democracy. But it also operates as an underappreciated structural principle in subconstitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. Like its constitutional counterpart, the \"statutory separation of powers\" seeks to prevent the dominance of factions and ensure policy stability. But separating and balancing statutory authority is a delicate business : the optimal balance is difficult to calibrate ex ante, the balance is unstable, and there are risks that executive agencies in particular might seek expansion of their authority vis-à-vis their independent counterparts. By explicating the architecture of statutory separation of powers, this Article explores both how statutory separation of powers can facilitate resistance to the executive and how the executive might weaponize particular statutory entanglements in pursuit of policy dominance. Presidents from both parties unapologetically leverage administrative agencies to achieve policy goals. The current administration is no exception: it has rolled back emissions limits previously promulgated by the Environmental Protection Agency, refocused immigration policy on enforcement and border security through changes at the Department of Homeland Security, and leaned on the Department of Energy to prop up the ailing coal industry. This last set of efforts has, to date, been rebuffed by other federal administrative actors. This is no accident. Congress set up the existing federal balance of energy authorities in the wake of a previous attempt by the executive to dominate energy policy. But because of the administration's willingness to use statutory checks as a sword rather than a shield, the interagency balance of authority has come under increasing pressure. The Article concludes with recommendations for how Congress, agencies, and the judiciary might mitigate these tendencies and preserve the statutory separation of powers as a meaningful safeguard against the perils of concentrated executive policy-making authority.

Decentralization is becoming a dominant trend in many industries, and the electricity industry is no exception. Increasing numbers of energy consumers generate their own electricity and/or provide essential grid services such as storage, efficiency, and demand response. This Article offers a positive account of the emergence of these new energy actors, which it calls \"energy prosumers.\" It then frames several doctrinal and procedural puzzles that prosumers create, including jurisdictional puzzles, distributional concerns, and democratic challenges. Ultimately, it concludes that prosumers can be a positive disruptive force in the electricity industry if courts and regulators can manage these challenges effectively. The Article suggests that increased prosumption not only helps further traditional energy law goals, but also is consistent with a modernized canon of energy law norms, including environmental protection and market competition. The Article concludes by outlining regulatory pathways to a prosumer future. It emphasizes the policy experimentation currently taking place and suggests conditions for, and core elements of, a more centralized, synoptic regulatory strategy.

Commentators and policymakers frequently propose new government agencies in response to novel or intractable problems. New agencies can refocus public attention on the problems they regulate. They can attract new talent and bypass calcified or captured channels. But they are also costly, and there is no guarantee that they will be more successful than their predecessors. This Article examines agency genesis at the state level. In the process, it expands recent thinking about the administrative separation of powers to the states. At the federal level, setting up agency rivalries within the executive branch can be an effective tool for mitigating presidential power. But new state agencies have sometimes enhanced, rather than countered, gubernatorial authority. State energy policy offers a compelling context in which to explore questions about agency genesis. Energy-agency creation in the states is a story of addition, beginning with public utility commissions in the early 1900s and culminating in the contemporary creation of new boards and bodies to manage the transition to a just, low-carbon energy economy. Drawing on the political science and public administration literatures, this Article explains the observed patterns of energy-agency creation and analyzes their effects on state energy governance. It offers prescriptions for managing multiple agencies in the same policy domain. And it cautions that the allure of agency genesis should not preclude reform of existing institutions.

Fifty years ago, Alexander Bickel famously suggested that courts use tools like standing, ripeness, and the political question doctrine to avoid reaching the merits of difficult cases. Yet despite the increasingly central role of administrative agencies in government, there have been no efforts to date to apply Bickel's insights to the bureaucracy. This Article remedies that deficit. The Article provides a three-part taxonomy of administrative restraint and offers case studies from federal agencies such as the Federal Energy Regulatory Commission, the Environmental Protection Agency, and the Fish and Wildlife Service. It argues that agencies sometimes use restraint strategically for reasons similar to Bickelian courts: to avoid unnecessary conflict with other institutional actors. Moreover, like the passive virtues in the judicial arena, such agency passivity is often normatively desirable. As long as certain internal agency safeguards exist, passivity should be facilitated rather than undermined by reviewing courts.

Presidential unilateralism has become a defining feature of the executive branch. But a related and equally important phenomenon has been largely ignored: federal agency efforts to circumvent statutory federalism boundaries. This move, which the Article calls \"bypassing federalism,\" involves using existing jurisdictional authority to work de facto, rather than de jure, reallocations of power. The Article explores agency bypassing through the lens of the Federal Energy Regulatory Commission's (\"FERC's\") promotion of demand response in electricity markets. Demand response refers to customer sales of negative watts, or \"negawatts,\" back to the electrical grid. FERC, eager to promote demand-side management programs but stymied by the jurisdictional limitations in the Federal Power Act of 1935, recently adopted a strategy that bypasses these federalism boundaries by setting up demand response programs in wholesale markets, which are under its control, to parallel state and local programs. Although the strategy has boosted demand response program participation, the Article ultimately concludes that bypassing is an insalubrious administrative innovation. While it allows agencies to further national objectives without challenging jurisdictional boundaries head on, the strategy has significant downsides. First, statutory constraints may limit an agency's options in a way that results in the promotion of second-best over first-best policies. Second, even de facto jurisdictional adjustments raise federalism questions that we might prefer be addressed through the legislative process. Third, bypassing can be a costly strategy to the extent that it creates animosity between federal agencies and their state counterparts and fails to head off judicial showdowns. Finally, by making a dysfunctional statutory scheme workable, bypassing threatens to delay legislative solutions.

Attrition from undergraduate nursing programs continues to warrant investigation particularly in the climate of nursing shortages and fiscal reflection on academic institutional programs. This three-year study used a prospective longitudinal survey design to determine entry characteristics of students, attrition, progression and completion in an undergraduate program. Students were surveyed in the first three weeks of commencing their program and gave permission for academic grades to be collected during their six session, three year Bachelor of Nursing program. Of the 740 students enrolled 48% (357 students) were surveyed and 352 students (99%) gave consent for their grades to be collected. One-third of the student cohort graduated in the expected three-year timeframe, one-third had dropped out and one-third was still completing their studies. A higher Grade Point Average and being a native English speaker were most predictive of students completing their course in the minimum expected timeframe.