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The Real Separation in Separation of Powers Law
Abstract
This Article argues that contemporary separation of powers commentary is misconceived. Despite the disagreement that dominates the commentary, a closer look at that debate reveals a surprise: commentators subscribe to a consensus about separation of powers. Once exposed, however, that consensus turns out to be underdeveloped, confused, and possibly incoherent. This Article, first, identifies the latent consensus about separation of powers, and, second, critically examines the consensus. The Article argues that the present consensus must be abandoned or refashioned in some as-yet-undeveloped way. Separation of powers commentary is conventionally thought to be dominated by a contest between adherents of "formalist" or "functionalist" methodologies. A closer look at that debate, however, reveals that the description is mistaken; it disguises a robust consensus about separation of powers that one finds at the base of every approach to separation of powers - formalist and functionalist alike. That consensus is civics-class familiar: it calls for dispersal of three government functions among three separate government institutions and equipping each institution with select powers to protect itself and police the other departments. Having exposed the consensus, this Article critically examines it. The consensus simultaneously embraces two different substantive conceptions that are assumed to, but do not, fit easily together. One conception, called here "separation-of-functions," stresses the need to keep the three government powers in different departments; the other conception, called here "balance-of-power," stresses the need to balance the departments of government through the creation and maintenance of tension and competition among them. The two conceptions are conflated or treated as if they easily relate to one another. Muddling the two conceptions together, however, is a mistake because they are distinct and in some ways in tension. Identifying a connection between the two ideas proves fruitless. The consensus, for instance, suggests that separating government functions leads to balance-of-power, but that connection does not hold up to close examination. And treating separation-of-functions as a way of achieving balance-of-power does more than fail; it ignores the independent reasons - reasons unrelated to balance-of-power - one might wish to separate government functions. Finally, the two conceptions suggest different, often irreconcilable, doctrinal concerns. The lesson of this Article, then, is that the consensus must be abandoned in favor of a new set of ideas about separation of powers. The Article takes the first step toward a new consensus by extracting the two distinct and sometimes conflicting conceptions from the muddle of the present consensus. While the latter steps of constructing a new consensus are not completed here, the challenges of those steps are clarified by this effort.
... Awareness of these perplexing aspects of the separation of powers doctrine dates back at least to Madison in the late eighteenth century (Hamilton, Madison, & Jay, 1778/2008. As a result of these tensions, some critics reject the significance of the separation of powers, seeing its invocation as little more than a baseless dogma (Carolan, 2009;Magill, 2000). ...
... Madison (Hamilton et al., 1778(Hamilton et al., /2008 famously averred: 'The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny'. As critics have complained however, this claim cries out for defense (Magill, 2000(Magill, , p. 1183. Why should tyranny be equated by definition with the failure to separate powers? ...
... Many theorists justify the separation of powers through the 'coordination thesis' (as Magill (2000Magill ( , p. 1185 terms it) which observes that certain abuses of power require plans involving executive, judicial and legislative elements. In these cases, the separation of powers stymies injustice because the three separate institutions would have to independently conspire (i.e., coordinate) in order to injure an individual. ...
The separation of powers constitutes a vital feature of western democracies, enshrined in myriad federal and state constitutions. Yet, as a broad principle, theorists struggle to pin down its precise nature, and many contend that the tripartite separation of state powers into legislative, executive and judicial branches proves simplistic and infeasible. I argue we should understand the separation of powers as a strategy used to structure relations between the separated institutions. This process of structuring empowers the creation of novel inter-relations among institutions (relations of balancing, checking, dividing, coordinating and so on), with the goal of improving their institutional integrity. In short, we separate only to reconnect.
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... 13 That is, the separation of powers in existing constitutional systems neither exist as a "one branch -one function" sort of sense, 14 nor does it establish any coherent normative principles. 15 For example, a strict distinction fails to make different branches accountable to one another, as the more independent they are the more difficult their control is. 16 Especially in presidential systems, where the separation between branches is closer to the pure doctrine, impeachment of the president is often very difficult in contrast to parliamentary systems. ...
In this article, we analyze how the checks-and-balances principle in the Finnish Constitution regarding the declaration of the state of emergency. We first discuss the basic principles of the separation of powers and checks and balances, and explicate how these principles are relevant to declaring a state of emergency (section 2). We then move on to analysing the Finnish legal order, de lege lata, regarding the declaration of the state of emergency, both on the level of the Constitution and on the level of the Emergency Powers Act (section 3). This section elaborates the role of the legislative branch in checking the executive and the authority of the executive(s) in declaring a state of emergency. By means of our theoretical discussion and legal analysis, we will evaluate critically the declaration requirement’s political entailments for the Finnish legal system and propose some changes for the future, de lege ferenda (section 4). This evaluation critically assesses the present legislation regarding the declaration and its recent practice during COVID-19 pandemic.
... It has also been argued that "the system of checks and balances and the idea of independence of power components stand out against each other" (Magill 2000(Magill , 1127. The theory of separation of powers is a key ingredient of constitutional government, but the theory is ambiguous and not directly relevant to the British constitution. ...
... It has also been argued that "the system of checks and balances and the idea of independence of power components stand out against each other" (Magill 2000(Magill , 1127. The theory of separation of powers is a key ingredient of constitutional government, but the theory is ambiguous and not directly relevant to the British constitution. ...
A constitution is a body of laws that is composed of various branches which exist as the legal source of its powers. These are designed to regulate by defining the role of the executive, legislature and the judiciary, which are the three organs of government that Baron Montesquieu defined as necessary in a constitution. The constitutional government can be evaluated on its capacity (i) to maintain the rule of law, (ii) to preserve an electoral mechanism for political democracy and (iii) to protect a morally and legally acceptable set of substantive rights. The conventions are the source of unwritten constitutions which preserve the balance of powers by relying on the concept of judicial restraint and deference to the executive. The contemporary relevance of Baron Montesquieu’s theory is in the context of a fused system, and the question is the extent to which the executive can override the judicial powers in matters of state. Keywords: separation of powers; unwritten constitution; Westminster model; constitutionalism; juridical review; “one voice” principle; administrative deference.
... 51 The court affirmed its commitment to a functional model of separation of powers thus: "[O]ver time our courts will develop a distinctively South African model of separation of powers, one that fits the particular system of government provided for in the Constitution and that reflects a delicate balancing, informed both by South Africa's history and its new dispensation, between the need, on the one hand, to control government by separating powers and enforcing checks and balances, and, on the other, to avoid diffusing power so completely that the government is unable to take timely measures in the public interest." 52 The court did not then commit to developing the guidelines for a "distinctively South African" model of separation of powers. Instead, the court stated that "[t]his is a complex matter which will be developed more fully as cases involving separation of powers issues are decided." ...
The Constitution of South Africa establishes a cluster of institutions styled "state institutions supporting democracy", also called "Chapter 9 institutions", as they are created under Chapter 9 of the Constitution. These institutions exist alongside the traditional three branches of government-the executive, the legislature and the judiciary. They are independent, and they have powers over the traditional branches of government. There is tension between these "Chapter 9 institutions" and the traditional branches of government in recent times. At the centre of this tension lies a more substantial question about the place occupied by these institutions in the organisation of the state. Put differently, can it be said that South Africa has a constitutional scheme that includes a "fourth branch" of government? This paper sets out to investigate this question. Ultimately, the article contends that these oversight institutions have consolidated themselves into what may be styled the "fourth branch" of the state.
... In the previous section we showed that the separationist logic of the first three components of separation of powers pull in a different direction than the balancing character of the fourth one. 68 Consequently, these four components do not automatically fit together seamlessly and may lead to divergent implications. 69 More generally, given the inevitable co-presence of both limiting and enabling rationales behind the separation of powers, 70 it is ultimately not possible to devise any definite blueprint for how the principle of separation of powers should be understood and implemented. ...
Separation of powers has returned to the forefront of both public and scholarly attention, with countries of Central Europe providing ample material for reflection. Recent political developments in Hungary and Poland have reminded us that the tripartite division of state power among legislative, executive and judiciary remains vulnerable to whims of power, and that aggressive pursuit of self-contained goals by the executive may quickly disrupt the delicate balance among the highest bodies in a constitutional democracy.
However, a closer look shows that political leaders have been hostile only to certain components of the principle of separation powers. Similar observation could be made with respect to other countries in which separation of powers has come under distress. In our view, this provides a reason for inquiring in some more detail into the architecture of the concept of separation of powers.
The aim of this chapter is thus to provide such a conceptualisation, especially by means of distinguishing several components which make up the conceptual but also institutional structure of separation of powers. This enables us to identify particular deficiencies in both the theory and practice of separation of powers.
Our contribution is three-fold. First, we show that it is necessary to divide the concept of separation of powers into smaller components that can be studied conceptually as well as empirically. We do so by unpacking the concept into four components (separation of institutions, separation of functions, personal incompatibility, and checks and balances) and exploring their limiting and enabling pedigrees. Second, we show that all of these four components embody limiting and enabling elements, but each of them does so to a different extent. This inevitably results in tensions. Consequently, third, each constitutional system, when designing framework of government, must make its own choices and adopt its own combination of enabling and limiting elements.
... Transnational litigation implicates complicated separation of powers issues because all three branches of the federal government have constitutional roles to play in defining jurisdiction itself: courts define court access rules and interpret statutes, Congress establishes courts' jurisdiction, and the executive branch dominates foreign relations, including treaty negotiations over matters of private international law. 121 But their interests and agendas may not always align. ...
Over the past two decades, U.S. courts have pursued a studied avoidance of transnational litigation. The resulting litigation isolationism appears to be driven by courts’ desire to promote separation of powers, international comity, and the interests of defendants. This Article demonstrates, however, that this new kind of “avoidance” in fact frequently undermines not only these values but also other significant U.S. interests by continuing to interfere with foreign relations and driving plaintiffs to sue in foreign courts. This Article offers four contributions: First, it focuses the conversation about transnational litigation on those doctrines designed to avoid it—that is, doctrines that permit or require courts to dismiss a case based on its “foreignness.” Doing so helps to identify the particular concerns justifying this kind of avoidance and to evaluate them on their own terms. Second, the Article presents evidence of emerging foreign trends that increasingly (and surprisingly) permit traditionally American, plaintiff-friendly procedures, including higher damages awards, ag-gregate litigation, and third-party litigation financing. Third, the Article demon-strates that, particularly in light of these foreign trends, avoidance has failed to achieve its stated goals, and in many instances has undermined them. Finally, the Article suggests ways to refine avoidance doctrines to address these unintended consequences. Its more basic and urgent task, however, is to identify the growing phenomenon of litigation isolationism, highlight its perversities, and caution against its further expansion.
In a democratic system, citizens of a given country vote to elect their representatives who will form a government. Fair and equal treatment is required to be provided for every citizen by the government such as fundamental rights, popular and free participation in governance and so on. However it is quite unfortunate that men, once vested with power, abuses it there by causing despair among citizens, just as it is being portrayed in most African countries. Therefore it is necessary that power becomes a check to power. Having seen the need for such check and balances in power, Baron De Montesquieu in his treatise ‘Spirit of Laws’ espoused the separation of powers among the three arms of government in a democratic setting to avoid the abuse of powers.
This article describes the basic doctrine of separation of power to highlight how this doctrine has evolved. Then, this article inspects whether this doctrine is practically viable or an elusive dream. To this end, this research article utilised qualitative research methodology and focuses on the nature and effectiveness of the doctrine of separation of power. The article investigates whether the separation of power is a pure or genuine concept to pinpoint its complex nature. Then, this article critically analyses the less purity in Montesquieu’s concept of separation of power. In the end, this article scrutinizes and finds the pure concept of separation of power.
Today, all the Constitutional systems in the world might not be opting for the strict separation of powers because that is undesirable and impracticable but implications of this concept can be seen in almost all the countries in its diluted form. It is widely accepted that for a political system to be stable, the holders of power need to be balanced off against each other. The principle of separation of powers deals with the mutual relations among the three organs of the government, namely legislature, executive and judiciary. This doctrine tries to bring exclusiveness in the functioning of the three organs and hence a strict demarcation of power is the aim sought to be achieved by this principle. This doctrine signifies the fact that one person or body of persons should not exercise all the three powers of the government. The doctrine was popularized by Baron de Montesquieu. It was wholly embraced under the 1999 Constitution of Nigeria and the principles have been imbibed into the legal tradition of Nigeria. The following questions emanate from this: what is the origin of the doctrine of separation of powers? How has the doctrine been used in the Nigeria? What is the position of the doctrine in Nigeria? What is the future of the doctrine of separation of powers especially with the nascent challenges to our democratic practices? Can the principles be made more effective to promote efficiency in governance? These are the questions which this paper seeks to answer and provide workable solutions to.
The author examines the tension that exists between the various components of the separation of powers (in particular the ideas of independence and separation, and the system of checks and balances). He analyses different ways of solving them. Attention is paid, for example, to attempting to supplement the separation of powers with some other normative thesis. The author rejects previous approaches and argues that the components of the separation of powers can be understood as separate principles. Conflicts between these principles should be resolved through proportionality.
In this paper, the author raised the question of whether the separation of powers is a use-less concept. It points out to insufficient reflection of its theoretical and philosophical origins. The paper also distinguishes its components, which it then analyses in more detail. Great attention is dedicated to the tension between the system of checks and bal-ances and the institutional independence. It also examines the purpose of the separation of powers, warning that we can no longer seek it exclusively in the prevention of tyranny but rather in the optimization of government. At the end of the paper is emphasized the need to examine the question of how to solve tension between these components.
The article analyses the so-called “old” separation of powers and face it against the new version of the principle. The former is Montesquieu’s theorization which looked for the protection of rights and liberties. The latter, arises when the modern State outdated the old version and turn it unable to face the challenges of new institutional arrangements. This paper describes the transition and examines the evolution of the principle from three institutional perspectives: the consolidation of presidential and parliamentarian regimes, the regulatory State and the organization of political parties. Then the paper states a new version of the principle of separation of powers, focused on prevent the concentration of power, and proposes some institutional arrangements closer to this perspective. Among others, new checks and balances, the institutionalization of the political opposition and the role and power distribution of regulatory agencies.
This chapter undertakes a brief descriptive account of executive power - both its scope, and the means that American law has developed to hold the executive to account for its actions. This chapter proceeds in five parts. The first part offers a brief theoretical overview of the American separation of powers. The second part describes the scope of executive authority. Thereafter, the third part discusses legislative, judicial, and political mechanisms for holding the executive to account. The fourth part then illustrates how some of those mechanisms play out in three distinct contexts: the exercise of delegated powers, the President's 'war power', and the contemporary problem of executive detention. Finally, the fifth part advances some brief conclusions about the comparative efficacy of separated powers and checks and balances models, and the relation of those modes to judicial review.
This Article analyzes the doctrinal instruments federal courts use to allocate scarce adjudicative resources over competing demands for constitutional remedies. It advances two claims. First, a central, hitherto underappreciated, doctrinal instrument for rationing judicial resources is a demand that most constitutional claimants demonstrate that an official violated an exceptionally clear, unambiguous constitutional rule-that is, not only that the Constitution was violated, but that the violation evinced a demanding species of fault. This fault rule first emerged in constitutional tort jurisprudence. It has diffused to the suppression and postconviction review contexts. The Article's second claim is that fault-based rationing of constitutional remedies flows, to an underappreciated degree, from an institutional commitment to judicial independence. Federal courts have developed branch-level autonomy, along with distinctly institutional interests, over the twentieth century. These interests are inconsistent with the vindication of many individualized constitutional claims. Although ideological preferences and changing socioeconomic conditions have had well-recognized influences on the path of constitutional remedies, I argue that the judiciary's institutional preferences have also played a large role. This causal link between judicial independence and remedial rationing raises questions about federal courts' function in the Separation of Powers.
The more international law, taken as a global answer to global problems, intrudes into domestic legal systems, the more it takes on the role and function of domestic law. This raises a separation of powers question regarding law-making powers. This book considers that specific issue. In contrast to other studies on domestic courts applying international law, its constitutional orientation focuses on the presumptions concerning the distribution of state power. It collects and examines relevant decisions regarding treaties and customary international law from four leading legal systems, the US, the UK, France, and the Netherlands. Those decisions reveal that institutional and conceptual allegiances to constitutional structures render it difficult for courts to see their mandates and powers in terms other than exclusively national. Constitutionalism generates an inevitable dualism between international law and national law, one which cannot necessarily be overcome by express constitutional provisions accommodating international law. Valuable for academics and practitioners in the fields of international and constitutional law. © 2013 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author.
Postconviction habeas comprises about 7 percent of federal district courts' dockets and between 8 and 20 percent of Supreme Court certiorari work. Scholars of all stripes condemn habeas as an empty "charade" lacking "coherent form." They consequently urge root-and-branch transformation. Resisting that consensus, this Article first advances a descriptive hypothesis: The Roberts Court's habeas jurisprudence is more internally coherent than generally believed-even if its internal logic has to date escaped substantial scholarly scrutiny. That jurisprudence is an instrument for sorting at the front end of litigation between cases warranting either less or more judicial attention. This account suggests that the Roberts Court titrates judicial attention by streaming cases into one of two channels via a diverse set of procedural and substantive mechanisms. In Track One, petitioners obtain scanty review and almost never prevail. In Track Two, by contrast, petitions receive more serious consideration and have a more substantial (if hardly certain) chance of success. This stylized account of the case law enables more focused investigation of the values that the Roberts Court pursues through its current articulation of habeas doctrine-and this is the Article's second task. Drawing on both doctrinal analysis and law-andeconomics models of litigation, the Article explores several possible justifications for the Court's observed bifurcated approach. Rejecting explanations based on state-centered federalism values, sorting, and sentinel effects, the Article suggests that some conception of fault best fits the role of a central organizing principle. This aligns habeas with constitutional-tort law, suggesting a previously unexamined degree of interdoctrinal coherence in the Roberts Court's attitude to otherwise distinct constitutional remedies. While the central aim of this Article is positive and descriptive in character, it concludes by examining some normative entailments of habeas's persistence in a bifurcated state. Specifically, I suggest that a better understanding of the Court's fault-based logic casts skeptical light on existing reform proposals, and is at least consistent with the possibility that habeas could still serve as a tool in some larger projects of criminal-justice reform.
The national security deference debate has reached a stalemate. Those favoring extensive deference to executive branch national security decisions celebrate the limited role courts have played in reviewing those policies. The executive, they contend, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. Those who bemoan such deference fear for individual rights and an imbalance in the separation of powers. Yet both sides assume that the courts' role is minimal. Both sides are wrong. This Article shows why. While courts rarely intervene in national security disputes, the Article demonstrates that they nevertheless play a significant role in shaping executive branch security policies. Call this the "observer effect." Physics teaches us that observing a particle alters how it behaves. Through psychology, we know that people act differently when they are aware that someone is watching them. In the national security context, the executive is highly sensitive to looming judicial oversight in the national security arena, and establishes or alters policies in an effort to avert direct judicial involvement. By identifying and analyzing the observer effect, this Article provides a more accurate positive account of national security deference, without which reasoned normative judgments cannot be made. This Article makes another contribution to the literature as well. By illustrating how the uncertain, but lurking, threat of judicial decisions spurs increasingly rights-protective policy decisions by the executive, it poses a rejoinder to those who are skeptical that law constrains the executive.
Federal court subject-matter jurisdiction rules incur a significant social cost—when jurisdiction is found lacking, courts must dismiss, no matter how many years and resources the parties have spent on the case. Indeed, hundreds of belated jurisdictional dismissals occur each year after parties have already engaged in discovery, dispositive motions, or even trial.
The Constitution allocates entitlements not only to individuals, but also to institutions such as states and branches of the federal government. It is familiar fare that individuals’ entitlements are routinely deployed both as shields against unconstitutional action and as bargaining chips when striking deals with the state. By contrast, the paradigmatic models of interbranch and federal–state interactions derived from James Madison’s writings in The Federalist underscore conflict and tension, rather than cooperation or mutually beneficial trades. Despite Madison’s predictions, institutional negotiation and dealmaking over both federalism and separation-of-powers interests are not only endemic in practice but also unavoidable in theory. Although negotiation over institutional interests is an entrenched part of the constitutional landscape, it remains undertheorized as a systemic matter. To begin filling that gap, this Article develops a general normative theory of negotiated structural arrangements by leveraging insights into bargaining from basic microeconomic theory. Analysis of intermural negotiation reveals no categorical reason to reject such deals. This Article, however, identifies two general criteria for rejecting the specific outcomes of intermural negotiation. It further suggests that courts are not well positioned to sift out undesirable deals given their constrained institutional competence. Rather than being drawn through judicial review, boundary lines to institutional bargaining should be limned by elected officials.
The federal appointments process is having its proverbial day in the sun. The appointment and removal of federal officers figured centrally in the Supreme Court’s two major recent separation-of-powers decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board and National Labor Relations Board v. Noel Canning. The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional–presidential confrontations. Such simultaneous top billing in the judicial and political spheres is hardly coincidental. After all, it was President Obama’s use of the Recess Appointments Clause in response to pro forma sessions that triggered the Court’s engagement with the Clause in Noel Canning. But the relationship between the Clause’s judicial and political manifestations is more complicated, and more fraught, than mere practical causality. The Roberts Court’s approach to appointments and separation of powers issues stands out for its Burkean resistance to innovation. By contrast, the dominant characteristic of appointments in the political sphere is novelty and embrace of new institutional arrangements.
This Article explores these differing judicial and political approaches to innovation, and the implications of the emerging contrast for federal administration. Although the Court’s resistance to innovation might appear a useful prophylactic against efforts to bend the Constitution in the name of political expediency, the constitutional basis for such a general suspicion of innovation is lacking. Particularly given the political transformations occurring in response to polarization, a stance of suspicion sets the Court on a course of confrontation with the other two branches that is hard to justify. A more nuanced approach that pays greater attention to political reality would allow the Court to both better titrate its interventions to constitutional structure and minimize the disruptive effects of its decisions.
Contemporary separation-of-powers theory and practice generally rely on two competing theories—formalism and functionalism—to frame and decide contested questions about the scope of each branch’s constitutional power and authority. In some areas, this dichotomy works reasonably well and possesses significant explanatory force. But the dichotomy’s utility is considerably less obvious in the context of the federal appointments process.
The Supreme Court’s recent decision in National Labor Relations Board v. Noel Canning crisply demonstrates the limitations of formalism and functionalism in resolving separation-of-powers questions that equally implicate text, structure, and historical practice. Moreover, Justice Breyer’s Noel Canning opinion deftly transcends the formalism—functionalism dichotomy even while relying on textual, structural, historical, and practical arguments drawn from both modes of separation-of-powers analysis. Noel Canning teaches that constitutional text, by itself, will not always yield clear or reliable answers to difficult separation-of-powers questions. The decision also highlights a serious shortcoming in formalist legal analysis: When the Constitution expressly vests conflicting powers in different branches—as in the context of staffing the executive branch—purely formalist analysis will not suffice. Simply put, the Framers not only separated powers; they also blended them. In many important areas, the constitutional text does not clearly specify where one branch’s authority ends and another’s begins.
A workable account of the federal appointments process requires careful consideration of structure and practice, of original intent and appointments conventions developed over time, and of the conflicting textual imperatives of the Senate’s advice-and-consent power and of the unitary executive (understood in light of the President’s Article II “take care” duty). In order to develop an effective separation-of-powers jurisprudence, the federal courts must transcend the formalism–functionalism dichotomy in this important area of separation-of-powers theory and practice. More broadly, the shortcomings of the formalism–functionalism dichotomy in the context of appointments suggest the need to rethink the dichotomy more broadly as well.
In some democracies judiciaries have developed the political question doctrine to jurisprudentially resolve political questions and define their relationship with other branches of government. This doctrine is a function of the principle of the separation of powers and provides that there are certain questions of constitutional law that are constitutionally committed to the elected branches of government for resolution. As a result, such questions are non-justiciable and require the judiciary to abstain from deciding them if doing so would intrude upon the functions of the elected branches of government. This article examines the evolution and current status of the political question doctrine in Ghanaian jurisprudence, which developed from American jurisprudence. It begins by briefly discussing the history of the doctrine and its modern application in America. It then discusses how this doctrine was imported into Ghana and applied by the Ghanaian judiciary. The article argues that while there are differences of opinion around the application of the political question doctrine within Ghana's judiciary, the doctrine is firmly part of Ghanaian constitutional law. The article observes that the difference of opinion among judges is over the proper application of the doctrine rather than on whether it forms part of Ghanaian constitutional law. The article also discusses a related issue of the constitutional status of Directive Principles of State Policy in chapter 6 of the Constitution of Ghana.KEYWORDS: Separation of powers; political question doctrine; judiciary; Ghana; branches of government; justiciability; directive principle.
1 Despite the sparse text of Article II and the relative lack of Supreme Court precedent, the development of executive power has been influenced as much by these legal markers as by historical practice. Yet both have been mediated through state institutions and capacities on which the "supreme law of the land" was unavoidably imprinted. Many scholars have given historical practice a central place in understanding presidential power. They take it for granted that the powers, duties and institutional framework of the presidency are vastly different from those that existed in the eighteenth and nineteenth centuries. 2 Two standard examples are the creation of "independent" regulatory agencies and the president's unilateral power to use military force. It is no accident that the two longest-running disputes over executive power relate to the president's influence over these agencies and presidential war powers. 3 Understanding the law of executive power thus involves coming to terms with constitutional change outside the formal process of amendment in Article V. At the same time, the text of the Constitution inevitably shapes the twenty-first century executive branch, however different that branch may be from its eighteenth-century counterpart. 4 Contemporary legal scholarship has emphasized the role of the text, usually interpreted through an originalist lens. The tension created by an unchanging text and the reality of informal constitutional change gives separation of powers jurisprudence a serious baseline problem. 5 Legal analysis is often an odd blend of highly selective eighteenth century evidence and subsequent history along with intuitions about the proper balance of power between the branches of government. 1 Rutledge C. Clement, Jr. Professor in Constitutional Law, Tulane Law School. This is a revised draft of a chapter forthcoming in the Oxford Handbook of the United States Constitution.
This Article analyzes how federal courts should resolve disputes implicating both federalism and foreign affairs concerns when no textual source of law provides dispositive direction. This challenge, which arises in what Justice Jackson once called the "zone of twilight," occurs with surprising frequency. Most recently, it can be discerned in Justices Kennedy’s and Scalia’s dueling opinions in Arizona v. United States. Analysis of the Arizona opinions suggests that federal judges tend to resolve such zone of twilight disputes by invoking a default presumption either in favor of state or federal control. Scholarship on the appropriate choice of presumption divides methodologically, yielding what can be usefully labeled formalist and functionalist approaches. Neither is satisfactory as presently formulated. Formalist approaches yield incoherent and unsatisfactory responses. Existing functionalist analyses, while sound in general approach, omit crucial considerations. To remedy the ensuing gap in the literature, this Article develops a second-generation functionalist approach for resolving foreign affairs federalism cases in the zone of twilight. Cataloging both the costs and advantages of centralization, we posit that the appropriate judicial presumption should vary over time. Our central thesis is that, while both the states and the federal government have legitimate regulatory interests, the relative strength of their interests depends on geopolitical conditions. To operationalize that insight, the Article offers a parsimonious doctrinal tool, based on the international relations concept of polarity, to determine when the presumption should switch from favoring the states to favoring the federal government.
Observers of our federal republic have long acknowledged that a fourth branch of government comprising administrative agencies has arisen to join the original three established by the Constitution. In this article, we focus our attention on the emergence of perhaps yet another, comprising financial self-regulatory organizations. In the late eighteenth century, long before the creation of state and federal securities authorities, the financial industry created its own self-regulatory organizations. These private institutions then coexisted with the public authorities for much of the past century in a complementary array of informal and formal policing mechanisms. That equilibrium, however, appears to be growing increasingly imbalanced, as financial SROs such as FINRA transform from “self-regulatory” into “quasigovernmental” organizations. We describe this change through an account that describes how SROs are losing their independence, growing distant from their industry members, and accruing rulemaking, enforcement, and adjudicative powers that more closely resemble governmental agencies such as the Securities and Exchange Commission and the Commodity Futures Trading Commission. We then consider the confluence of forces that might be driving this increasingly governmental shift, including among others, demographic changes in the style and size of retail investments in the securities markets, the one-way ratchet effect of high-publicity failures and scandals, and the public choice incentives of regulators and the compliance industry. The process by which such self-regulatory organizations shed their independence for an increasingly governmental role is an undesirable but largely inexorable development, and we offer some initial ideas for how to forestall it.
An axiom of institutional design is known as the ally principle: all else equal, voters, legislators or other principals will rationally delegate more authority to agents who share their preferences (“allies”). The ally principle is a conventional starting point for large literatures on principal-agent relationships in economics, political science, and law. In public law, theories of delegation – from legislatures to internal committees, from legislatures to agencies and the executive, or from higher courts to lower courts – universally assume the ally principle. Yet history and institutional practice reveal many cases in which the ally principle not only fails to hold, but actually gets things backwards. We identify an enemy principle: in certain cases principals rationally delegate, not to allies, but to enemies or potential enemies — agents who do not share the principal’s preferences or whose preferences are uncertain at the time of the delegation. Our aim is to describe these cases of delegating to enemies, to explain the mechanisms on which they rest, and to offer an account of the conditions under which principals do best by following the enemy principle and reversing the ally principle. Such an account is a necessary first step towards a fully general and comprehensive theory of delegation, one that includes both the ally principle and the enemy principle as special cases.
Our paper shows how "institutional" is the production of regulation"s ruling by studying the production of a new ruling in a federal structure with two levels of regulatory decision -making and two levels of judicial review. We show that a new applied regulation is produced in a process of trials and corrections induced by the incompleteness of the basic law and the limited rationality of regulators and judicial reviewers at the local and at the federal level. In a multi-level regulatory structure, being typically federal, that process of regulatory production is very cyclical (with five steps of innovation, imitation and correction). That process is both diversified (different units creating independently and differently the applied regulatory frame) and sequential (all units not entering the regulatory production on the same point and at the same moment). We applied the new analytical frame to a case study being the new regulation for renewable energy in India (a typically federal country).
During the past decade, federal courts have adjudicated proliferating challenges to novel policy responses to terrorism. Judges often resolve the individual rights and statutory interpretation questions implicated in those controversies by deploying presumptions or rules of thumb derived from the Constitution’s Separation of Powers. These “structural constitutional presumptions” serve as heuristics to facilitate adjudication and to enable judicial bypass of difficult legal, policy, and factual questions. This Article challenges the use of such structural presumptions in counterterrorism cases. Drawing upon recent empirical research in political science, political psychology, and security studies, it demonstrates that abstract eighteenth-century Separation of Powers ideals do not translate into robust and empirically defensible generalizations for twenty-first-century security decisions. Structural constitutionalism thus cannot serve as a foundation for heuristics or shortcuts in the judicial consideration of new security measures. To the extent courts properly pass on the legality of counterterrorism policies, judges should rely instead on the ordinary tools of doctrine, statutory construction, and fact finding. The ensuing jurisprudence of counterterrorism would look much more like ordinary public law.
Formalism has returned, displacing the flexible, functionalist separation-of-powers analysis that often characterized the Supreme Court's separation-of-powers decisions during the Rehnquist Court. Free Enterprise Fund v. Public Co. Accounting Oversight Board provides powerful evidence of this emerging trend. Moreover, a reliable majority of the Justices have strongly embraced formalism in other important separation-of-powers decisions as well. A new formalism now appears to govern the Court's contemporary separation-of-powers jurisprudence—with the defenders of more flexible, functional approaches to separation-of-powers questions relegated to writing dissents. The Roberts Court, however, has failed to elucidate fully the precise scope and meaning of its new formalist vision for separation-of-powers doctrine. Even so, if the Roberts Court’s decisions mean what they appear to say, serious constitutional questions exist about the constitutional validity of cooperative federalism programs in which states have primary responsibility for the administration of important federal labor, environmental, and healthcare programs. Simply put, the new formalism renders such programs open to serious constitutional attack on separation-of-powers grounds because the president arguably lacks sufficient direct oversight and control of the state-government officers who administer and enforce federal law on a day-to-day basis. But the Supreme Court need not follow the logic of its more recent separation-of-powers decisions to this ultimate conclusion; plausible arguments exist to support the claim that cooperative-federalism programs do not violate separation-of-powers doctrine even under a demanding formalist analysis. Until the full implications of the Roberts Court’s embrace of the new formalism are known, legal scholars, federal judges, and administrative-law practitioners should consider carefully whether cooperative-federalism programs can successfully be reconciled with the imperatives of the unitary executive and its requirement of direct presidential control and oversight of the administration of federal law.
This Article was written for the 2008 Minnesota Law Review Symposium, Law & Politics in the 21st Century. The Article examines the core functionalist argument typically made to support unitary executive theory: that the theory advances the constitutional principle of accountability by demanding that all executive branch decisions be placed in the hands of a single, nationally elected official. This Article argues that a unitary executive undermines, rather than bolsters, government accountability. The Article also explains that one need not agree with that proposition to conclude that the accountability justification for unitary executive theory is flawed. Rather, one need only deem the point reasonably arguable - and hence within Congress' discretion to judge, subject to functional boundaries - to determine that accountability principles do not demand a unitary executive. The argument that unity reasonably can be deemed to undermine accountability rests on two prongs! First, it turns on the meaning of constitutional accountability. The Constitution reflects different forms of accountability that correspond to different constitutional actors who check and balance one another. Underlying all forms of accountability is the need for transparency and procedural regularity sufficient to enable public and inter-branch assessment of - and responses to - government actions. Second, unity helps the White House both to secretly intervene in administrative state decisions and to manipulate the very "facts" upon which such decisions purport to rest. The problem is compounded by the capacity of the White House politically to distance itself - and thus to create public confusion over who to blame - regarding decisions over which it legally has full authority (and in which conditions of unity thus exist). The Article is intended as a companion piece to another article to be published roughly contemporaneously with it in a symposium issue of the Willamette Law Review: Accountability and Administrative Structure.
Statutory interpretation is at the cutting edge of legal scholarship and, now, legislative activity. As legislatures have increasingly begun to perceive judges as activist meddlers, some legislatures have found a creative solution to the perceived control problem: statutory directives. Statutory directives, simply put, tell judges how to interpret statutes. Rather than wait for an interpretation with which they disagree, legislatures use statutory directives to control judicial interpretation. Legislatures are constitutionally empowered to draft statutes. In doing so, legislatures expect to control the meaning of the words they choose. Moreover, they prefer to do so early in the process, not after a judge has interpreted the statute in a way they did not expect or intend. Judges are constitutionally empowered to interpret statutes without legislative-micromanagement. The question then is how to balance these valid, but competing, constitutional roles. This article explores when statutory directives violate separation of powers and concludes that when the legislature tries to control the process of interpretation, as opposed to trying to influence the outcome of interpretation to promote specific policy objectives, the legislature aggrandizes itself, oversteps constitutional boundaries, impermissibly intrudes into the judicial sphere, and becomes master of the interpretive process.
From the birth of the administrative state, we have struggled to describe our regulatory government as the legitimate child of a constitutional democracy. We have sought to reconcile the administrative state with a constitutional structure that reserves important policy decisions for elected officials and not for appointed bureaucrats. Lately, we have become so fixated on the concern for political accountability that we have overlooked an important obstacle to agency legitimacy: the concern for arbitrary administrative decisionmaking. Perhaps more accurately, we have relegated this concern to "ordinary" administrative law - such as the Administrative Procedure Act (APA) - rather than "constitutional" administrative law - such as the nondelegation doctrine. This dichotomous thinking colors the prevailing model of the adminisitrative state, which seeks to legitimate agencies by placing their policy decisions firmly under the control of the one elected official responsive to the entire nation - the President. In this Article, I argue that the "presidential control" model cannot legitimate agencies. It rests on a mistaken assumption about the appropriate role of accountability - an assumption that tracks closely the preoccupation with majoritarianism as a first premise of legitimate government, pioneered by Alexander Bickel and now subject to debate among constitutional theorists. The presidential control model misleads us into thinking that accountability is all we need to assure ourselves that agency action is constitutionally valid. It is time for us to recognize that preventing arbitariness remains at the core of administrative legitimacy. One we do, we finally can begin to resolve some of the conventional puzzles of both "constitutional" and "ordinary" administrative law, as well as sketch the outlines of furture developments in this area.
From its conceptual origin in Magna Charta, due process of law has required that government can only deprive persons of rights pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern "substantive due process" have obscured the way that many American lawyers and courts understood due process to limit the legislature from the revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was the court's role to do so pursuant to established and general law. This principle was applied against insufficiently general and prospective legislative acts under a variety of state and federal constitutional provisions through the antebellum era. Contrary to the claims of some scholars, however, there was virtually no precedent before the Fourteenth Amendment for invalidating laws that restricted liberty or the use of property. Contemporary resorts to originalism to support modern due process doctrines are therefore misplaced. Understanding due process as a particular instantiation of separation of powers does, however, shed new light on a number of key 20th century cases which have not been fully analyzed under the requirements of due process of law.
The American Constitution creates three branches of government and ensures that there will be sufficiently great amounts of ideological diversity among these branches of government. Despite this regime ensuring external heterogeneity, the American system, uniquely among the world's major constitutional democracies, rarely creates the same degree of heterogeneity at the highest levels of the Executive Branch that it does among the highest levels of the various branches of government. This Article discusses the distinctiveness of the homogeneous high-level American Executive Branch and the events that led to such a situation. At the first key moment defining the separation of powers in the new American Constitution, the time of the creation of the Constitution, there was still support for an Executive Branch composed of a diverse range of leaders, and the rules of the new Constitution did not hinder this ambition. At the second key moment defining the separation of powers in the new Constitution, the creation of the Twelfth Amendment in 1804, a series of new rules and the political and legal realities that followed resulted in the highest levels of the Executive Branch becoming far more homogeneous than the one that preceded the Twelfth Amendment.
Robert Schapiro’s ambitious Polyphonic Federalism is the first book-length defense of a general normative case for modifying judicial federalism doctrine to accommodate the modern reality of the nearly always interactive relationship between the national and state governments based on the pragmatic benefits generated by interactive governance. Persistent judicial “dualism” - our courts' preoccupation with the idea that the Constitution requires the maintenance of distinct “spheres” of national and state power - is radically disconnected from today's federalism in practice. The view that constitutional doctrine, not practice, should change in the light of this disconnect is what I call “compatibilism,’ and it stands opposed to a countervailing “conventionalism” that urges the maintenance of established structures of federalism doctrine. I situate Schapiro’s work in the newly-forming compatibilist literature, identify shared compatibilist theses, and assess the compatibilists’ normative case for doctrinal change. Compatibilism is unlikely to succeed as either a modest claim that our discourse about federalism should change or a provocative claim that the meaning of the Constitution regarding federalism has changed. But it may gain traction against conventionalism if formulated as a claim about the instrumental determinants of constitutional doctrine. Read this way, the federalism compatibilists’ normative thesis presents a new and invigorating challenge to conventionalism, an adequate response to which requires conventionalist federalism views to become substantially more nuanced.
No question of constitutional design is more intensely debated than whether emerging democracies should adopt presidential or parliamentary systems. This is an important debate but it misses a critical point about constitutional design - namely that the structural differences between presidentialism and parliamentarism conceal much more than they reveal. In this Article, I demonstrate precisely how conventional accounts of the structural differences between presidentialism and parliamentarism actually obscure their functional similarities.
In statutory interpretation, judicial authority has long rested on the assumption that judges carry out Congress's policy choices rather than their own. The rise of the administrative state cast doubt on that assumption, however, by calling new attention to the leeway inherent in interpretation. Indeed, by the late-twentieth century the Supreme Court itself acknowledged that interpretation requires policy choices best left to political officials and used this observation to justify judicial deference to administrative interpretations of statutes. Having suggested that the policymaking discretion inherent in interpretation is best left to the political branches, however, the Court has never explained why judges should retain the important interpretive role they do. Judges and scholars alike have overlooked a serious tension between the Court's rationale for deference and its retention of significant interpretive authority nonetheless. This tension has been rendered quite important by recent decisions that reinforce the Court's power over agencies and raise new questions as to why the Court should retain its historical control over statutory interpretation even after acknowledging that interpretation entails more than fidelity to legislative instructions. This Article seeks to resolve this tension in the Court's jurisprudence by constructing a defense of judicial power that does not depend on judges being faithful agents of Congress. The Article defends judicial power based on the judiciary's role in the constitutional structure and its internal institutional attributes and uses this structural and institutional account of the judicial function to critique the Court's recent decisions on deference. An earlier draft of this paper won the AALS Scholarly Paper Competition.
This Article contends that the federal sentencing guidelines-whether mandatory or discretionary-violate the constitutional separation of powers by impermissibly interfering with a criminal jury's constitutional duty to act as a check against government overreaching. It posits that the Framer's inclusion of the criminal jury in Article III of the Constitution was intended as an inseparable element of the constitutional system of checks and balances. This Article also submits a proposal for restoring the constitutional balance through the creation of a "guideline jury system" within the current guideline structure. The implementation of a guideline jury system would fill the constitutional void created by the current sentencing regime without destroying its underlying benefits. By making the jury a larger part of the guideline structure, the sentencing guidelines would no longer violate the separation of powers and the criminal jury would be reinstated as a viable check against government overreaching.
As U.S. counterterrorism activities continue to engage the armed forces in profound legal and policy debates over detention, interrogation, targeting and the use of force, recent legal scholarship has painted a grim picture of the vitality of civilian control over the U.S. military. Prominent generals leverage their outsized political influence to manipulate the civilian political branches into pursuing their preferred course of action. Bureaucratically sophisticated officers secure the adoption of their policy judgments in the Executive Branch and Congress contrary to civilian preferences. And misplaced judicial deference to military expertise on what is necessary to regulate the special community of the armed forces exacerbates the growing social separation between the military and the society it serves. The question of how to distinguish expert advice from undemocratic influence that has long surrounded the work of administrative agencies is made especially complex by the unique constitutional role of the military. Before one can tell whether civilian control is threatened, one must first have some understanding of what it is. Yet for all the intense focus in recent years on the legality of what the military does, where the modern military fits in our constitutional democracy has remained remarkably under-theorized in legal scholarship. Moreover, prevailing theories of civilian control in the more developed social and political theory literature of civil-military affairs view the Constitution’s separation of powers – in particular, the allocation of authority over the military to more than one branch of government – as a fundamental impediment to the maintenance of civilian control as they take it to be defined. As a result, there remains a significant gap in the development of a constitutional understanding of the meaning of civilian control. This Article is an effort to begin filling that gap, by examining whether and how the constraining advice of military professionals may be consistent with our modern separation of powers scheme.
This article analyzes the constitutionality of judicial delegations to probation officers.
American political institutions were founded upon the Madisonian assumption of vigorous, self-sustaining political competition between the legislative and executive branches. Congress and the President would check and balance each other; officeholders would defend the distinct interests of their different institutions; ambition would counteract ambition. That is not how American democracy turned out. Instead, political competition and cooperation along relatively stable lines of policy and ideological disagreement quickly came to be channeled not through the branches of government, but rather through an institution the Framers could imagine only dimly but nonetheless despised: political parties. Few aspects of the founding generation's political theory are now more clearly anachronistic than their vision of legislative-executive separation of powers. Yet few of the Framers' ideas continue to be taken as literally or sanctified as deeply by courts and constitutional scholars as the passages about interbranch relations in Madison's Federalist 51. This Article reenvisions the law and theory of separation of powers by viewing it through the lens of party competition. In particular, it points out that during periods - like the present - of cohesive and polarized political parties, the degree and kind of competition between the legislative and executive branches will vary significantly and may all but disappear, depending on whether party control of the House, Senate, and Presidency is divided or unified. The practical distinction between party-divided and party-unified government thus rivals, and often dominates, the constitutional distinction between the branches in predicting and explaining interbranch political dynamics.
Besides its descriptive function, the separation of powers has a normative one. Indeed, the creation of organs, their attributions and their interrelation constitute the legal criteria which make possible the identification of "powers" and the concrete meaning of their "separation." However, EC Law's interest on national normative separation of power is acuter. Actually, and without reinventing the separation of powers legal doctrine, EC Law requirements contribute to a reconsideration of the relations between powers (III), relations that could be conceived as a sui generis circumstantial control system (IV), developed in parallel with the constitutional model elaborated in member states (V), and whose features remain-in a Darwinian way-in full evolution process (VI).
Standard understandings of the separation of powers begin with the concept of function. The author argues that function alone cannot predict important changes in structural incentives and thus serves as a poor proxy for assessing real risks to governmental structure. To illustrate this point, the article returns to proposals considered at the Constitutional Convention and considers difficult contemporary cases such as Morrison v. Olson, Clinton v. Jones, and the Supreme Court's more recent federalism decisions. In each instance, function appears to steer us wrong because it fails to understand separation of powers questions as ones of structural incentive and political relationship. In order to move away from function as the sole proxy for structural risk, the article suggests a "vertical" approach toward separation of powers questions. That approach reconceives departmental power less as the power to perform a set of tasks fitting a particular constitutional description (e.g., adjudication, execution, legislation) than as a set of constitutionally created political relationships between the people and those who govern them. Put another way, the separation of powers becomes less a search for transcendental descriptions of the departments than a means of considering how shifting structure affects liberty -- how structural incentives may incline governmental actors to act toward the people in ways that risk the electoral powers of both majorities and minorities.
Modern separation of powers doctrine reflects a theoretical stalemate. For the last generation, many courts and commentators have argued that the legislative, executive, and judicial powers should be exercised by three formally distinct branches, while others have contended that the doctrine permits mixing these powers so long as the underlying functions or purposes of separation of powers are realized. Recent appeals to the Constitution's origins have only deepened, not resolved, the stalemate. The past can provide guidance in addressing this problem, Professor Flaherty suggests, but only if more rigorous methods of historical scholarship are employed. Once that is done, a clearer, but more complex, picture of the original understanding of separation of powers emerges. That picture bears little resemblance to accounts which posit that the Framers reached a consensus on a formalist approach to separation of powers. Instead, American constitutionalists during the last three decades of the eighteenth century experimented with Whig ideas of mixed government, a republican commitment to legislative supremacy, and only late in the day embraced what we think of as separation of powers. Even then, the proceedings of the Constitutional Convention, the text of the Constitution, and the ratification debates indicate that the Founders generally agreed only that separation of powers should serve such broader functions as balance, joint accountability, and adequate governmental energy. Otherwise the doctrine remained underdeveloped, and many early applications of it violated formalist precepts. Americans seeking to remain faithful to the Founding, according to Professor Flaherty, should therefore abandon the formalist approach and instead apply the original separation of powers values to the different governmental circumstances we confront today. The President long ago replaced Congress as the branch that most threatens constitutional balance. The President's claim to electoral mandates resembles the type of simple accountability that the Founders came to suspect rather than celebrate, and the growth in federal and executive power make eighteenth-century concerns about governmental energy antiquated. Translating Founding values into this modern setting requires a two-fold approach to separation of powers. First, the Supreme Court should require a high threshold before intruding into institutional arrangements established by the political branches. Second, the Court should only intervene to further the general goals originally attributed to separation of powers.
For many years, legal scholars have engaged in two debates concerning the power of Congress over coordinate departments of the national government. The first concerns the scope of Congress's power to insulate executive department officials from presidential control. The second concerns the scope of Congress's power to restrict the jurisdiction of the federal courts. Scant attention, however, has been paid to the relationship between the Article II "unitary executive" and the Article III "jurisdiction-stripping" debates. In this Article, Professor Calabresi and Mr. Rhodes consider the implications of each debate for the other. The authors examine the textual provisions relevant to each debate and then explain how certain positions in one debate may compel results in the other. They conclude that theories of broad congressional power to restrict federal court jurisdiction strongly suggest limited congressional power to restructure the executive department and that theories of limited congressional jurisdiction-stripping power compel a unitary executive. Finally, the authors observe that recent Supreme Court decisions construing Article II may require recognition of broad congressional power under Article III to restrict the jurisdiction of the federal courts.
Although article III of the Constitution provides that the judicial power of the United States shall be vested in courts whose judges enjoy life tenure and protection from salary reduction, longstanding precedent and practice establish that Congress may create courts that lack these guarantees of judicial independence. In this Article, Professor Fallon criticizes the amorphous balancing test that the Supreme Court has recently employed to determine the constitutional permissibility of delegations of adjudicative power to non-article III federal tribunals. After identifying the competing practical and constitutional values, he argues that the best accommodation lies in an "appellate review" theory. Professor Fallon's theory broadly justifies congressional employment of non-article III tribunals to engage in initial adjudications, but holds that appellate review in a constitutional court is minimally necessary to protect article III values. To demonstrate that his suggested approach is workable as well as normatively attractive, Professor Fallon examines areas of the law in which appellate review has traditionally been regarded as unnecessary. He concludes that an appellate review theory requires few changes in current practice. Finally, the Article discusses the necessary scope of review by a constitutional court for article III's underlying values to be protected adequately.
In recent years, the failure of administrative agencies to implement congressional programs faithfully and effectively has called into question the wisdom of the central institutional innovations of the New Deal: the expansion of the regulatory state and the shift in power from the states to the federal government. In this Article, Professor Sunstein challenges the New Deal more fundamentally, examining not only the institutional changes themselves, but also the shift in constitutional commitments that underlay those reforms. Professor Sunstein identifies three aspects of New Deal constitutionalism: the rejection of the original constitutional commitment to checks and balances in favor of independent and insulated regulatory administration, the recognition of substantive entitlements beyond those protected at common law, and the abandonment of principles of federalism that vested regulatory authority in both the federal government and the states. Professor Sunstein argues that many of the present failures of regulatory administration - particularly the problems of agency capture and factionalism - can be traced to the New Deal's failure to incorporate the original constitutional commitment to checks and balances into regulatory administration. The remedy, he suggests, is to reinvigorate the commitment to checks and balances through a system of coordinated review of agency action that includes a strong supervisory role for each of the three branches of government - the executive, the judiciary, and Congress. In addition, Professor Sunstein maintains that the protection of new entitlements during the New Deal was a natural and justified outgrowth of the recognition by New Deal reformers that the common law itself favors some social interests over others. He suggests that this substantive aspect of the New Deal should be incorporated into modern public law, in which common law categories persist despite the insights of New Deal reformers. Finally, Professor Sunstein argues that the third aspect of New Deal constitutionalism - the emphasis on national rather than local control of regulatory issues - has been carried too far, depriving citizens of the opportunity to participate meaningfully in the debate over the terms of their social life.
This assay in comparative constitutional theory considers whether an American-style separation of powers should serve as a model for other countries. Professor Ackerman argues against the export of the American system in favor of an approach based on the constitutional practice of Gemany, Italy, Japan, India, Canada, South Africa and many other nations. According to this model of "constrained parliamentarianism," the constitution should not create an independently elected presidency to check and balance a popularly elected congress. Instead, if should authorize a prime minister and her cabinet to remain in power as long as they can retain the support of a democratically elected chamber of deputies. Constrained parliamentarianism tries to check the power of the cabinet and the chamber however, by granting independence to a variety of other checking institutions, including a constitutional court. Professor Ackerman argues that this model offers a more promising path to constitutional development than the American approach. He shows how it can generate a variety of institutional strategies that better serve the three great principles that motivate the modem doctrine of separation of powers - democracy, professionalism and the protection of fundamental rights.
At one of his earliest press conferences [Franklin] Roosevelt compared himself to the quarterback in a football game. The quarterback knows what the next play will be, but beyond that he cannot predict or plan too rigidly because "future plays will depend on how the next one works." I shall argue that under the Constitution only our politicians are entitled to the flexibility of waiting to see how one play works before calling the next one. Our constitutional courts, on the other hand—and our Supreme Court in particular—have a different role in adjudication concerning the structure of government. Notwithstanding Justice Frankfurter's famous dictum, the courts in structural cases should act as referees, and their proper role in determining the legitimacy of an institutional innovation is rigid enforcement of the rules. When they do less, when they defer to congressional policy judgments about the way in which federal authority is most efficiently exercised, they are acting not as courts but as participants in the legislative process.
For much of this nation's history, the governance of American territories, such as the island of Guam, was one of the most significant and oftlitigated problems of American constitutional law. In modern times, however, issues of territorial governance have been reduced to the status of constitutional arcana. Professor Lawson maintains that this frequently neglected problem of territorial governance is an ideal context in which to conduct the resurgent modern debate concerning separation of powers theory. Accordingly, Professor Lawson undertakes a formalist analysis of the principal institutions of American territorial governance, finding all of them incompatible with a formalist understanding of separation of powers. He then critically discusses the constitutional history of these territorial institutions-a history that represents the Supreme Court's most consistent, and perhaps earliest, rejection of formalist methodology. Finally, he argues that the political consequences of applying formalism to territorial administration need not be as profound as a straightforward analysis might suggest.
The principles of legality and separation of powers are conventionally understood to require that law-making, law- interpreting, and law-enforcement be carried out by separate institutions. This paper challenges this understanding in the context of federal criminal law. Descriptively, it maintains that federal criminal law is most accurately conceptualized as a "common-lawmaking" regime in which Congress delegates power to courts by enacting incompletely specified statutes. Normatively, it argues that the law would be better if the delegated-lawmaking authority that courts now exercise were instead wielded by the Department of Justice. The legal mechanism for this reform would be the so-called Chevron doctrine, which requires courts to defer to Executive Branch readings of ambiguous regulatory statutes. The likely advantages of such an arrangement include greater expertise in the making of criminal law, greater uniformity in the interpretation of it, and (most surprisingly) greater moderation in the enforcement of it.
Instrumental analysis of private law damage remedies noncontroversially assumes rational economic actors in a market environment. A privately-owned factory forced by the tort system to internalize 1000. At least within the law and economics paradigm, we can safely take for granted the rather strong assumptions upon which this analysis rests. No one doubts, for example, that a profit-maximizing firm will tend to ignore social costs that are not reflected in financial outflows, or that it will take account of costs that are reflected in financial flows and, perhaps, change its behavior in response. These assumptions become problematic, however, when government is substituted for the private firm in this analysis. This substitution takes place routinely in discussions of constitutional remedies such as just compensation for takings, damages for constitutional torts, and the liability or property rule represented by the constitutional prohibition against federal "commandeering" of state governments. Each of these remedial systems seeks to deter government, to some socially optimal extent, from violating constitutional rights by forcing government agencies to internalize the costs of their constitutionally problematic conduct. But government does not internalize costs in the same way as a private firm. Government actors respond to political incentives, not financial ones. We cannot assume, therefore, that government will internalize social costs just because it is forced to make a budgetary outlay. While imposing financial outflows on government will ultimately create political costs (and benefits), the mechanism is complicated and depends on the model of government behavior used to translate between market costs and benefits and political costs and benefits. As the paper attempts to demonstrate, for all we currently know, government cannot be expected to respond to forced financial outflows in any predictable, let alone socially desirable, way. Having reached this conclusion, the paper proceeds to explore potential justifications for constitutional cost remedies other than optimal deterrence of government misconduct. As it turns out, the efficiency consequences of paying compensation, based on the incentives and welfare of private actors, are more likely to be perverse than beneficial. And the conventional philosophical justifications for compensation, offered in terms of morality or justice, are universally problematic and contestable. Discouraged by the seeming futility of compensation in the public law context, the paper concludes by suggesting how we might go about reinventing constitutional remedies in light of the insight that government responds to political, not market, incentives.