SEPARATION OF POWERS BY CONTRACT: HOW COLLECTIVE BARGAINING RESHAPES PRESIDENTIAL POWER.

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 policy directives, and the tenured bureaucracy of civil servants below him follow 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. 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 and 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. 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. [ABSTRACT FROM AUTHOR]