Rulemaking and the American Constitution Explored in New Essay

Legal scholar examines the challenges of reconciling executive rulemaking with separation of powers in the modern regulatory state.

Apr. 10, 2026 at 7:29am

Got story updates? Submit your updates here. ›

A quiet, cinematic painting of an empty government office or legislative chamber, with warm sunlight streaming through the windows and deep shadows cast across the desks and chairs, conveying a sense of solemnity and contemplation around the topic of executive rulemaking and constitutional separation of powers.The delicate balance between executive power and legislative authority is explored in a new essay on the challenges of modern rulemaking.NYC Today

A new essay by Columbia Law School professor Peter L. Strauss examines the tensions between executive rulemaking and the American system of separation of powers outlined in the Constitution. Strauss argues that the rise of the regulatory state has made executive rulemaking an essential function of government, but this activity can be in conflict with the Constitution's clear division of legislative and executive powers.

Why it matters

This essay provides important insights into the ongoing debate over the proper role of the executive branch in the modern regulatory landscape, and how the Constitution's principles of checks and balances must be balanced against the practical realities of governing in the 21st century.

The details

Strauss' essay explores how the U.S. Constitution's strong separation of legislative and executive powers makes it challenging to reconcile the executive branch's adoption of regulations that carry the force of law. While courts have generally accepted the delegation of rulemaking authority to expert agencies, Strauss notes that in recent decades, presidential oversight of this process has intensified, concentrating more power in the executive and rendering rulemaking a more political rather than purely expert-driven activity.

  • The essay was published on April 10, 2026.

The players

Peter L. Strauss

A professor at Columbia Law School who authored the essay examining the tensions between executive rulemaking and the separation of powers outlined in the U.S. Constitution.

Got photos? Submit your photos here. ›

What they’re saying

“A Constitution that strongly separates legislative from executive activity makes it difficult to reconcile executive adoption of regulations (that is, departmentally adopted texts resembling statutes and having the force of law, if valid) with the proposition that the President is not 'to be a lawmaker'.”

— Peter L. Strauss, Professor, Columbia Law School

The takeaway

This essay highlights the ongoing challenges of balancing the executive branch's need for regulatory authority with the Constitution's separation of powers, an issue that will likely continue to be debated as the role of government evolves in the modern era.