ArticlePDF Available

Judicial Interpretation of Legislative Silence Gone Too Far: The Case for a Separation of Powers Amendment

by Devin J. Humphreys*
* J.D. Candidate, Notre Dame Law School 2023. This essay was written for the Federalist Societys fourth annual
Article I Writing Competition, calling for papers on judicial interpretation and the erosion of legislative power.
Electronic copy available at:
While the philosophies of originalism and textualism are concerned, respectively, with
the Constitution’s original public meaning and a statute’s ordinary meaning, deriving that
meaning where the Constitution or Congress passing a statute have remained silent on a
particular matter is exceptionally difficult. This difficulty in interpreting constitutional and
congressional silence, combined with the J.W. Hampton decision of 1928, the Administrative
Procedures Act of 1946, and the doctrine of Chevron deference, have collectively functioned to
significantly weaken the doctrine of separation of powers in American government, in particular
by weakening the powers of the legislative branch. This paper argues in favor of a constitutional
amendment James Madison proposed in the first Congress to spell out the terms by which each
branch of government relates to the others. It proceeds to argue that placing regulatory authority
back under the legislative umbrella in this way would not be at odds with the goal of promoting
efficient policy-making, which facilitated the legislative branch’s delegation of power to
regulatory authorities in the first place.
Those seeking to understand the original meaning of a particular legal text must decide
how they will treat two distinct yet interconnected problems. First: what to make of a text’s
silence on a particular issue? Sometimes, the answer to this question is contained within the text
of a legal document itself. For instance, the Ninth and Tenth Amendments clarify, respectively,
the presence of unenumerated rights nonetheless possessed by the people
and the vesting of all
power in the states and the people that is not either enumerated as federal in nature or prohibited
U.S. CONST. amend. IX.
Electronic copy available at:
from being vested in the states.
However, those elastic clauses of the Bill of Rights do not cover
every potential issue that the Constitution does not resolve in its text. In particular, although the
basic principle which we today call “separation of powers” is certainly enshrined in the
Constitution, with legislative, executive, and judicial power each articulated in its own article,
the contours of that doctrine are far from spelled out within the Constitution itself. Due to the
Constitution’s silence on this issue, the extent to which each branch is able to licitly engage in
the functions of another has consequentially been heavily litigated throughout history,
and that
litigation has only further blurred the lines of what constitutionally enumerated powers belong to
The second problem an originalist seeking to discern original meaning must address is
the relevance of secondary sources to their considerations. In short, is the original intent of the
author(s) of a legal document relevant to its original meaning? Nowhere is this question more
pressing than with regard to an understanding of separation of powers. Thanks to the collective
efforts of Alexander Hamilton, James Madison, and John Jay in defending the Constitution to
facilitate its ratification through the publication of the Federalist Papers, in addition to the work
of our nation’s first Congress in debating, approving, and putting to the states a Bill of Rights,
there is ample information on how those who brought the Constitution to its fruition intended the
legislative, executive, and judicial powers to be exercised, and while those manifestations of
intent do not decisively declare original public meaning,
they can nonetheless be informative to
Id., amend. X.
See id., art. I, § 1; id., art. II, § 1; id., art. III, § 1.
See infra notes 32-37 and 65-66.
See generally The Bill of Rights: A Transcription, NATIONAL ARCHIVES,
docs/bill-of-rights-transcript (last visited Dec. 21, 2020) (presenting the 12 constitutional amendments proposed by
Congress for ratification by the states).
John O. McGinnis & Michael B. Rappaport, Originalism 3.0 Symposium: Symposium Essays: Unifying Original
Intent and Original Public Meaning, 113 NW. U. L. REV. 1371, 1373 (stating that for those discerning original public
meaning, “it is the text, not the intentions of the enactors, that is key to interpretation”).
Electronic copy available at:
that same end. In this article, I will argue that the original public meaning of the Constitution
does not preclude a particular branch of government from delegating its own vested powers to
another branch of government. Due to the difficulties with using original intent to arrive at a
legal text’s original public meaning, I will further argue that since the modern condition of
American government precludes the proper remedy for the ongoing delegation of legislative
power both to the executive and the judicial branches from exclusively involving “ambition
[being] made to counteract ambition,
such a remedy should also involve the enactment of a
constitutional amendment, first proposed by James Madison himself, which would require each
branch of government to not exercise the powers belonging to another. This, in turn, would serve
to redirect power back to the legislative branch, protecting the separation of powers envisioned
by the Founding Fathers in the U.S. Constitution, and thanks to the development of the
Congressional Budget Office as a regulatory agency under the purview of the legislative branch,
a model exists for reaffirming separation of powers in this way without completely rejecting the
policy-making and regulatory developments of the post-New Deal era.
When she was still a judge in the 7th Circuit, Justice Amy Coney Barrett defined
originalists as those “who insist that judges must adhere to the original public meaning of the
Constitution’s text.”
By specifically defining originalism as involving the pursuit of a text’s
original public meaning, Justice Barrett, and others who adopt a similar view,
demote the
THE FEDERALIST NO. 51, at 485 (James Madison) (Barnes & Noble 2012).
Honorable Amy Coney Barrett, 2019 Sumner Canary Memorial Lecture: Assorted Canards of Contemporary
Legal Analysis: Redux, 70 CASE W. RSRV. L. REV. 855, 859 (2020).
See Jack Balkin, The Construction of Original Public Meaning, 31 CONST. COMMENTARY 71 (2016) (arguing for
the relevance of original public meaning to constitutional interpretation even when original public meaning may be
lost in translation); but see McGinnis and Rappaport, supra note 6, at 1373-74 (attempting to unite the original intent
and original public meaning approaches to originalism).
Electronic copy available at:
consideration of legislative intent in constitutional interpretation. While legislative intent may
not be entirely irrelevant among originalists,
it certainly does not have the pride of place
afforded by originalists like Justice Barrett to the Constitution’s original public meaning. In the
first instance, this appears to make sense, since while originalists, especially those on the
Supreme Court, often disagree about what a text’s original public meaning is, the Constitution’s
original public meaning is generally understood to be the relevant issue.
The Constitution’s
original public meaning was central to both the disagreement between Justices Scalia and
Thomas in Davis v. Washington
and the disagreement between Justices Gorsuch and Thomas in
Gamble v. United States,
for instance. However, this pursuit of the original public meaning of
the Constitution hits a roadblock where silence is at issue. How does the originalist discern the
original public meaning of the Constitution’s silence on a particular matter?
Relatedly, Justice Barrett defined textualism, as that philosophy relates to statutory
interpretation, as the “insist[ence] that judges must construe statutory language consistent with
its ‘ordinary meaning.’”
A practical problem emerges for those abiding by both originalist and
textualist philosophies of constitutional and statutory interpretation, respectively. Where
originalists are generally agreed as a philosophical matter that the text of the Constitution should
be interpreted based on how it would have been understood by the general public at the time of
its ratification, those who abide by a textualist philosophy with regard to statutory interpretation
R. Randall Kelso, Styles of Constitutional Interpretation and the Four Main Approaches to Constitutional
Interpretation in American Legal History, 29 VAL U. L. REV. 121, 187 (demonstrating disagreement, driven by
scholars like Raoul Berger, over the proper emphasis on the “specific views of the framers and ratifiers” in
originalist interpretation).
Barrett, supra note 8, at 859-61.
547 U.S. 813 (2006); id. at 834 (Thomas, J., concurring in the judgment in part and dissenting in part), cited in
Barrett, supra note 8, at 860 (debating the contours of the Confrontation Clause of the Sixth Amendment).
139 S. Ct. 1960, 1964 (2019); id. at 1996 (Gorsuch, J., dissenting), cited in Barrett, supra note 8, at 860-61
(debating the proper interpretation of the dual sovereignty doctrine of the Double Jeopardy Clause).
OF LEGAL TEXTS 6977 (2012)).
Electronic copy available at:
must address a similar question: what meaning of statutory text is “ordinary”? In particular, if a
textualist considering a statute’s ordinary meaning seeks to understand how the text of that
statute was generally understood to mean at the time of its passage,
should he or she then
engage in “extratextual considerations”
to bolster that understanding? At the same time, the
textualist must also consider what “ordinary meaning” should be imputed to congressional
inaction. In short, whether one is engaged in constitutional interpretation (and seeking thereby to
discern the Constitution’s original public meaning) or statutory interpretation (and seeking
thereby to discern a given statute’s ordinary meaning), a fundamentally significant question
presents itself: what weight, if any, should be given to the legislative power’s failure to act on a
particular question?
This issue of what to make of congressional silence has more than merely philosophical
implications. Disagreement between textualists on the nature of ordinary meaning was at the
center of the reasoning of both the majority opinion in Bostock v. Clayton County
and Justice
Kavanaugh’s dissent.
While Justice Gorsuch, writing for the majority which declared that Title
VII of the Civil Rights Act of 1964’s prohibition of discrimination on the basis of sex extends to
issues of sexual orientation, states that “the limits of the drafters’ imagination supply no reason
to ignore the law’s demands,”
Justice Kavanaugh writes in his dissent of the necessity of
considering the fact that other federal legislation has attempted, unsuccessfully, to prohibit
discrimination on the basis of sexual orientation.
However, by vesting significance upon these
See, e.g., New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019) (arguing that judges should not “freely invest old
statutory terms with new meanings”).
Bostock v. Clayton Cty., 140 S. Ct. 1731, 1737 (2020).
Id. at 1822 (Kavanaugh, J., dissenting).
Id. at 1737 (majority opinion).
See id. at 1823-24 (Kavanaugh, J., dissenting).
Electronic copy available at:
unsuccessful efforts, Justice Kavanaugh staked out a novel position regarding what to make of
Congress’s silence on a particular issue. Of course, Justice Kavanaugh’s broader point was that
the determination of whether employers are prohibited from discriminating on the basis of sexual
orientation is a determination which should be made by Congress, rather than the judiciary,
to follow that line of logic to its inevitable conclusion, if Congress deliberates on passing
legislation with particular language, and that legislation ends up not being passed, those
deliberations can then be used as evidence in determining the meaning of existing legislation.
While the substance of Justice Kavanaugh’s disagreement with Justice Gorsuch and the rest of
the Bostock majority centered around whether or not Congress had (knowingly or otherwise)
precluded discrimination on the basis of sexual orientation by enacting Title VII of the Civil
Rights Act of 1964,
Justice Kavanaugh’s decision to treat as authoritative Congress’s failure to
enact clarifying legislation
raises major implications for the very nature of separation of
powers. In Bostock, Justice Kavanaugh takes the position that when a legislative body considers
clarifying legislation which it does not proceed to adopt, that consideration can and should be
used to determine the meaning of a text. If one applies that interpretive posture by analogy to the
Constitution, then the very nature of separation of powers as articulated in the Constitution must
be called into question as a result.
Id. at 1822.
Compare id. at 1737 (majority opinion) (“Sex plays a necessary and undisguisable role in the decision [to fire an
individual for being homosexual or transgender], exactly what Title VII forbids.”), with id. at 1828 (Kavanaugh, J.,
dissenting) (“Does the ordinary meaning of that phrase encompass discrimination because of sexual orientation? The
answer is plainly no.”).
Id. at 1823.
Electronic copy available at:
The issue of interpreting legislative silence is therefore critically important to
determining the scope of the principle of separation of powers, whose history begins with Baron
de Montesquieu. In The Spirit of Laws, Montesquieu articulates an immutable governmental
principle, namely that “in every government there are three sorts of power”
: the legislative, the
executive, and the judiciary. Montesquieu then proceeds to articulate a variety of comparisons
between governments where those sorts of power are “united in the same person” (including, in
Montesquieu’s day, both Turkey and the various republics of Italy) and those where at least one
of those sorts of power is held by some different person or body than the other two (“most
kingdoms in Europe,” in Montesquieu’s view).
In other words, while Montesquieu uniquely
articulates the distinction of these powers, and it is further clear that he takes the normative
position that these powers should be harnessed by different people or groups, the fact that these
three distinct categories of power exist does not automatically mean that they will be exercised
by different people, and indeed, as Montesquieu was able to articulate examples of governments
like Turkey and the Italian republics where these powers were “united in the same person,” the
idea that these powers Montesquieu compartmentalized are therefore by definition exercised
distinctly is not self-evident.
Colonial Press 1899).
Id. at 151-52.
Electronic copy available at:
With due apology to Justice Scalia for undertaking a consideration of foreign legal
systems in an attempt at interpreting our own,
I argue that a comparative analysis of how these
categories of power have been organized in other governing entities will be illustrative for how it
should be understood in the United States. The basic concept of separation of powers, that is, the
idea that different governmental functions should be exercised by different people, is an idea that
has gained traction on the international stage over time. Recent developments in British
constitutional law are illustrative of this trend. Many a first-year law student reads cases decided
by the Law Lords which are meant to contextualize principles of the common law of tort or
but to an American first-year law student, it is not immediately evident why members
of the upper house of the quintessentially legislative British Parliament would be responsible for
exercising such an important judicial function. In 2005, the House of Commons reached a similar
conclusion and passed legislation divesting judicial power from the Law Lords, redirecting it
instead to a newly-established Supreme Court.
As a result, the United Kingdom of the present
day exemplifies a sort of separation of these powers not before seen in that nation, even as these
powers are not distinct, with the most critical manifestation of that point being the fact that the
Prime Minister, representing the United Kingdom’s executive authority, remains a member of
Parliament, which is itself in turn the United Kingdom’s legislative authority. Similarly,
Margaret Thatcher, in her famous “No! No! No!” speech, laid out her prediction as to how the
European Union would also exemplify this enumeration of powers, having said that the then-
chairman of the European Commission, “Mr DeLore […] wanted the European Parliament to be
See Norman Dorsen, The Relevance of Foreign Legal Materials in U.S. Constitutional Cases: A Conversation
between Justice Antonin Scalia and Justice Stephen Breyer, 3 INTL J. CONST. L. 519, 525 (articulating the
irrelevance of foreign law to American Constitutional and statutory interpretation in the eyes of Justice Scalia).
See, e.g., Jolley v. Sutton London Borough Council [2000] 3 All ER 409 (defining the scope of reasonable
foreseeability in the context of adjudicating tort liability); C. Czarnikow, Ltd., v. Koufos [1967] 1 AC 350 (defining
the foreseeability requirement for damages in contract law).
Constitutional Reform Act 2005, c. 4, § 23(1).
Electronic copy available at:
the democratic body of the Community, he wanted the Commission to be the executive, and he
wanted the Council of Ministers to be the Senate.”
However, the multitude of European
governing bodies now charged with some degree of legislative, executive, and/or judicial
function -- including, but not limited to, the European Council, the European Parliament, the
Council of the European Union, the European Commission, the Court of Justice of the EU, and
the Court of Auditors
-- exemplify that Thatcher’s prediction only partially came to pass, and
as a result, articulating the EU’s distribution of the powers enumerated by Montesquieu is not
quite as simple as a one-to-one correspondence between a governing body and the power they
Certainly, the concept that no one person should wield all three categories of power,
enumerated by Montesquieu, is in vogue now more than ever before, garnering acceptance by
many of the governing bodies of the Western world. But what of Montesquieu’s conclusion? As
exemplified by the above analysis of the governmental organizations of both the United
Kingdom and the European Union, this tendency away from uniting the legislative power with
that of the executive or the judicial has consistently resulted in a less than clean split of those
powers, and so it becomes clear that in the absence of clarifying language to the contrary, the
doctrine of separation of powers must be understood in dynamic, rather than static, terms.
Wall Street Journal, Highlights from the Iron Lady’s Speeches, YOUTUBE (Apr. 8, 2013),
Institutions and Bodies, EUR. UNION, (last
visited Dec. 20, 2020).
Electronic copy available at:
This dynamism is on full display in American case law on separation of powers, because
the history of the shifting nature of the relationship between the three branches in the United
States is far from teleological, especially until the early 20th century.
A substantive body of
case law demonstrates a dialectic between cases that clearly articulated particular powers as
belonging to a particular branch of government and those which allowed particular powers to
“blend” between the branches of government. First, in the all too infamous Marbury v. Madison,
Chief Justice John Marshall decisively carved out the judiciary’s role in the American
constitutional system of government, writing that it is emphatically the province and duty of the
judicial department to say what the law is.”
Not long thereafter, however, the very same Chief
Justice Marshall used slightly less exacting words to speak of the role of the legislative branch,
writing in Wayman v. Southard that “it will not be contended that Congress can delegate to the
Courts, or to any other tribunals, powers which are strictly and exclusively legislative. But
Congress may certainly delegate to others, powers which the legislature may rightfully exercise
Case law continues even in recent years to cite this quote from Chief Justice Marshall in
Wayman to justify the limited delegation of congressional power to regulatory agencies, where
such delegation is for the purpose of executing a law passed by Congress.
In 1892, however,
Justice Harlan appeared to articulate a more robust separation of powers, emphatically declaring
See Susan E. Dudley, Improving Regulatory Accountability: Lessons from the Past and Prospects for the Future,
65 CASE W. RSRV. L. REV. 1027, 1030 (2015) (citing J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394
5 U.S. 137, 177 (1803).
23 U.S. 1, 42-43 (1825).
See Clinton v. City of New York, 524 U.S. 417, 481 (1998); see also Gundy v. United States, 139 S. Ct. 2116,
2123 (2019).
Electronic copy available at:
that the principle “[t]hat Congress cannot delegate legislative power to the President is a
principle universally recognized as vital to the integrity and maintenance of the system of
government ordained by the Constitution.
Most of the case law of this period is reconcilable with a general rule: if Congress
attempts to delegate the legislative power which belongs exclusively in its domain, that attempt
inevitably runs afoul of the Constitution. This general rule is what modern case law and scholarly
literature refer to when declaring the continued existence of the “nondelegation doctrine.”
Conversely, however, the courts also recognized the fact that the valid exercise of congressional
power oftentimes goes beyond “the making of law.
By that logic, legislative delegations of
authority other than lawmaking authority would be within constitutional bounds, and it further
follows that such delegations would not impair the separation of powers beyond the disapproval
of those like Montesquieu who find it necessary for good government.
In this construction, the
legislature continues to legislate, the executive continues to execute, and the judiciary continues
to judge, even as the legislature (for instance) may delegate to another branch or body such
actions as it may be entitled to take but which do not rise to the fundamentality of “legislation.”
This 19th-century dialectic surrounding the nature of the separation of powers in
American government and the extent to which the legislative, judicial, and executive powers
were meant to blend with each other is a byproduct of the difficulties of discerning the original
public meaning of the Constitution’s “vesting” clauses.
Certainly, Article I Section 1 of the
Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892)
See, e.g., Mistretta v. United States, 488 U.S. 361, 371 (1989); Jason Iuliano & Keith E. Whittington, The
Nondelegation Doctrine: Alive and Well, 93 NOTRE DAME L. REV. 619 (2017).
See Marshall, 143 U.S. at 693.
See Montesquieu, supra note 24, at 151 (“When the legislative and executive powers are united […] in the same
body of magistrates, there can be no liberty”).
See U.S. CONST. art. I, § 1; id., art. II, § 1; id., art. III, § 1.
Electronic copy available at:
Constitution clearly articulates that “all legislative Powers herein granted shall be vested in a
Congress of the United States.”
In turn, those powers granted to Congress by Article I, Section
8 of the Constitution include that pesky Clause 18, giving Congress the power “to make all Laws
which shall be necessary and proper for carrying into Execution the foregoing powers, and all
other Powers vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof.”
However, these two provisions of the Constitution beg the
consideration of two distinct points. First: if it is the judicial branch’s job to determine whether a
law is in accord with the Constitution,
then the judicial branch must also be responsible for
rendering the final verdict on whether a law carrying out an enumerated power of Congress is
necessary and proper to its execution. While the Supreme Court has certainly assumed that
role in adjudicating the relationship between Congress and the executive, the dialectic put on
display by 19th-century case law on delegation presents a paradox: if it is necessary and proper
for a department executing the law to be able to regulate, then since all legislative power
enumerated in the Constitution is vested in Congress, including the Necessary and Proper
Clause, can Congress licitly delegate prescriptive regulatory authority to an executive agency?
Conversely, if an executive agency is delegated regulatory authority of a prescriptive nature by
Congress, then wouldn’t the exercise of that authority run afoul of the just-stated provision that
all legislative power is vested in Congress?
This paradox, on which the Constitution is essentially silent, is resolvable in one of only
two ways. Either Congress has the authority to delegate its legislative power to some other body,
Id. art. I, § 1.
Id. § 8, cl. 18.
Marbury v. Madison, 5 U.S. 137, 178 (1803).
Electronic copy available at:
or it does not. The resolution of this paradox is of critical importance, as over time, the
delegation of rule-making and regulatory authority to executive agencies has blurred the line
between legislation and regulation. Often, the only material difference between the two is the
governing body authoring the law. Just as Justice Kavanaugh in Bostock wrote of the necessity of
considering statutory language not adopted by Congress to determine what Title VII of the Civil
Rights Act of 1964 actually precluded, here a determination of the original public meaning of the
constitutional doctrine of separation of powers must entail a consideration of amendments to the
Constitution which did not make the cut. In particular, I refer to one of Madison’s proposals for
the Bill of Rights that was not put to the states:
Eighthly. That immediately after article 6th, be inserted, as article 7th, the
clauses following, to wit:
The powers delegated by this constitution are appropriated to the
departments to which they are respectively distributed: so that the legislative
department shall never exercise the powers vested in the executive or judicial nor
the executive exercise the powers vested in the legislative or judicial, nor the
judicial exercise the powers vested in the legislative or executive departments.
Since this particular language was proposed and dismissed without even being put to the
states for ratification, should we conclude that it was the First Congress’s intent to allow a more
fully interchangeable exercise of power between the branches? The substantive case law which
more or less prohibited the delegation of each branch’s specified powers rendered this question
moot until the early 20th century, but the question of whether this construction of government
1 ANNALS OF CONG. 453 (1789) (Joseph Gales ed., 1834).
Electronic copy available at:
complies with the actions undertaken by our nation’s Founding Fathers is certainly in order now.
While the discernment of the Constitution’s original public meaning does not involve any sort of
consideration of the intentions of those who ratified it in the first place (since such considerations
would place undue weight upon the opinions and interpretations of the few rather than the
a useful starting place on this question will nonetheless be found in the examination of
what the membership of First Congress did say on the matter of the amendment’s non-adoption.
Admittedly, the record on this particular point is thin, with only two objections articulated
therein. Congressman Roger Sherman argued that Madison’s proposal was “unnecessary,” since
the Constitution already laid out to which branch each vested power belonged.
rather than declaring the amendment more or less redundant, Congressman Samuel Livermore
raised a concern that this amendment would be “subversive of the constitution.”
While the text
of the amendment was agreed to in the first instance,
Congress thereafter ended up not
including Madison’s proposed separation of powers language in the proposed Bill of Rights
submitted to the states.
We have on the record, therefore, two different justifications for not
including that language, and the record clearly does not show whether or how the rest of the
membership, let alone the general public, understood the implications of adopting Madison’s
separation of powers language or not. To attempt to discern the original public meaning behind
this rejection therefore becomes an exercise in futility. Further, even if one accepts the sketchy
See, e.g., Antonin Scalia, A Theory of Constitution Interpretation, Remarks at The Catholic University of America
(October 18, 1996) ( (“I
don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take
the words as they were promulgated to the people of the United States.”), but see Kelso, supra note 10, at 187
(demonstrating the existence of some scholarly disagreement on the significance of original intent to original
1 ANNALS OF CONG., supra note 43, at 789.
Id. at 790.
See generally The Bill of Rights: A Transcription, NATIONAL ARCHIVES,
docs/bill-of-rights-transcript (last visited Dec. 21, 2020) (presenting a transcript of the 12 constitutional amendments
put to the states in 1789 by Congress, but not including Madison’s proposed separation of powers language).
Electronic copy available at:
premise that these two viewpoints represented the entirety of Congress assembled, one runs into
the immutable reality that those two viewpoints, arriving at the same result, are diametrically
opposed to each other: one argued that the Constitution more or less already articulated the text
of Madison’s proposed amendment, while the other said that the amendment was entirely at odds
with the other provisions of the Constitution.
Alas, however, each of those intentions was
articulated only once by one congressman each.
Unlike in Bostock, where Justice Kavanaugh
was reasonably able to stake out his position that Congress did not intend to render
discrimination on the basis of sexual orientation impermissible under Title VII of the Civil
Rights Act due to its repeated failures to incorporate language into the statute to that effect,
here the inference that Congress did not submit Madison’s proposed separation of powers
amendment to the states because its members disagreed with the principle of the proposed
amendment on the merits would be unfounded, as quite literally one in two representatives
opposed to the amendment were opposed to its form rather than its substance, agreeing with the
principle that neither the executive nor the judicial should exercise legislative power but
believing that principle to be sufficiently articulated in the then-existent text of the Constitution.
As a result, one is almost entirely incapable of distilling anything close to an expression of
Congress’s intent in taking this action not to adopt Madison’s proposed language, let alone
describing such an expression’s original public meaning.
There are problems with using the intent of Congress in not putting Madison’s proposed
separation of powers amendment to the states to understand how the framers of the Constitution
understood separation of powers in the first place, but some clarity can nonetheless be obtained
1 ANNALS OF CONG., supra note 43, at 789.
See Bostock v. Clayton Cty., 140 S. Ct. 1731, 1822 (2020) (Kavanaugh, J., dissenting).
Electronic copy available at:
by considering how the first Congress considered and handled the rest of the discussion on the
Bill of Rights, and cautiously applying that logic by analogy to the issue of separation of powers
as above presented. Examining the record more generally, it is clear that the First Congress was
significantly concerned that its actions to enumerate certain rights and amend other sections of
the Constitution may be misconstrued.
From Congressman Egbert Benson expressing concern
over the linguistic specifics of the now-Fifth Amendment’s protection against double jeopardy
to the aforementioned Congressman Livermore objecting to the language of what is now the
Eighth Amendment for the vagueness of terms like “excessive bail,” “excessive fines,” and
“cruel and unusual punishment,”
and everything in between, the Annals of Congress clearly
show this concern being voiced in response to nearly every proposal to amend the Constitution:
what if the articulation of a particular principle is misinterpreted, especially to the exclusion of a
similar principle that was not articulated?
Of course, this concern was anticipated by those who drafted the Constitution and
advocated for its ratification. In the Federalist, Alexander Hamilton acknowledged that the
Constitution as proposed contained no Bill of Rights,
and he argued in response that if a
constitution indeed derived its authority from the people, then for that constitution to articulate a
Bill of Rights would be a contradiction in terms, since historical bills of rights had been
concessions from monarchs to their subjects rather than mere statements of fact.
Hamilton’s concerns about the implications of articulating a Bill of Rights obviously did not
this was largely because it was fellow Federalist author James Madison that introduced
1 ANNALS OF CONG., supra note 43, at 455.
Id. at 781-82.
Id. at 782-83.
THE FEDERALIST NO. 84, supra note 7, at 640 (Alexander Hamilton).
See id. at 641-42.
See generally U.S. CONST. amends. I-X.
Electronic copy available at:
this proto-Bill of Rights in the first place, in the hope that its inclusion would subdue the not-
insignificant minority of Americans concerned about its omission.
Further, Hamilton’s
concerns were nonetheless addressed in the Bill of Rights by the inclusion of language clarifying
that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.”
However, that language, now known as the Ninth Amendment, only truly addresses
concerns about rights not enumerated in the Constitution, and applying it by analogy to other
situations would almost certainly be contrary to the amendment’s original public meaning. The
question becomes this: is a distinct and discrete separation of powers an unalienable right or
simply a principle of governmental organization and structure? Even Montesquieu, in his
articulation of the concept, does not appear resolute one way or the other as to whether these
three powers must be separate by right, for just as he argues that the exercise of his three
categories of power in one person would lead to “an end of everything,” he simultaneously refers
with approval to the “moderate government” enjoyed by “most kingdoms in Europe […] because
the prince who is invested with the two first powers leaves the third to his subjects.”
Thus, for
Montesquieu, it is not a pre-requisite for good governance that all three of these powers be
discretely separate, even as he articulates the threat to liberty that arises when two or more of
those powers are vested in any one particular individual or group.
In short, separation of
powers as articulated by Montesquieu is a fluid construct, and the philosophical question of
whether the people have a right to be governed by three separate entities exercising three distinct
1 ANNALS OF CONGRESS, supra note 43, at 449 (arguing that adopting amendments will appease those who had
opposed ratification of the Constitution due to the lack of an enumerated bill of rights).
U.S. CONST. amend. IX.
MONTESQUIEU, supra note 24, at 152.
Id. at 151-52.
Electronic copy available at:
powers resolves in the negative; in other words, as much as separation of powers may be a
necessary prerequisite to the security of liberty, it is not a construct enjoyed by right. Therefore,
although the Ninth Amendment extends to cover unenumerated rights, a pure separation of
powers as envisioned by Madison in his proposed constitutional amendment would be beyond
the Ninth Amendment’s purview.
By rejecting Madison’s proposed separation of powers language without offering an
alternative, Congress made the active decision to remain silent about the extent to which the
legislative, executive, and judicial powers are (or should be) distinct from one another, and while
the Constitution clearly articulates what powers are generally vested in each branch of
government, the boundaries between those powers are largely a matter of constitutional
interpretation. The preeminent interpretive question is whether a given piece of legislation is
either within the boundaries of the legislative authority vested in Congress
or “necessary and
proper” to exercise the same.
With the judicial branch not only asserting its exclusive authority
to exercise this interpretive power
but also exercising that interpretive power so as to enable
Congress to delegate a limited swath authority to the executive and regulatory agencies,
legislative branch’s power has eroded over time.
The pivotal moment at which the erosion of legislative power throughout the 20th century
began to snowball was in 1928, when Chief Justice William Howard Taft issued his decision in
J. W. Hampton, Jr. & Co. v. United States, writing for a unanimous Supreme Court.
Even as he
See generally U.S. CONST. art. I, § 8, cls. 1-17.
See id., cl. 18.
See Marbury v. Madison, 5 U.S. 137 (1803).
See Wayman v. Southard, 23 U.S. 1, 42-43 (1825).
276 U.S. 394 (1928).
Electronic copy available at:
affirmed that “Congress may not delegate its purely legislative power to a commission,”
former President wrote that “common sense requires” that Congress be permitted to delegate
regulatory authority to other bodies that may be more equipped to regulate a specific sector of
law, so long as authority is delegated in conjunction with the expression “by legislative act [of]
an intelligible principle.”
This was a novel expression of preference by a branch of American
government for policy made by the experts, and in time, under the backdrop of the presidency of
Franklin D. Roosevelt and the agencies he sought to create and expand through his New Deal,
Congress articulated this “intelligible principle” with a short yet sweeping piece of legislation:
the Administrative Procedure Act (APA) of 1946.
Just eight pages long, the APA defines a rule
as a statement, made by an agency, which is “designed to implement, interpret, or prescribe law
or policy,” thereafter proceeding to articulate the rule-making process more or less followed by
the various federal regulatory agencies of the United States to this day.
Because the APA gives
executive agencies rulemaking authority, allowing them not only to “implement” law but also to
“prescribe” it,
the Federal Register published each day is a manifestation of the extent to which
the legislative branch of American government has effectively willed away its lawmaking power
and authority to those agencies,
with final rules laid out in the Federal Register accompanied by
whatever section of the United States Code functions as enabling authority for that rule.
the APA enabled Congress to nominally retain unjeopardized legislative authority, but the
Supreme Court has in more recent years prohibited Congress from delegating “excessive
Id. at 408 (citing with approval Interstate Commerce Commission v. Goodrich Transit Co., 224 U.S. 194, 214)
Id. at 409.
Dudley, supra note 31, at 1030-31.
Administrative Procedure Act, Pub. L. No. 79-404, § 2(c), 60 Stat. 237, 237 (1946).
Electronic copy available at:
legislative power,”
and implicit in such a prohibition is the admission that at least some
legislative authority has been (and can be) delegated to regulatory agencies under the purview of
the executive branch of government.
The Hampton decision involved Congress’s delegation of the ability to set a tariff rate to
the President.
What power vested in Congress could be more uncontroversially in the exclusive
domain of Congress than its power “to lay and collect Taxes, Duties, Imposts, and Excises”?
And yet, Chief Justice Taft allowed Congress to delegate that taxation power to the President
because “common sense” required him to do so.
Practical concerns governed Chief Justice
Taft’s analysis. Explaining the Supreme Court’s decision to allow Congress to delegate the
exercise of its power of taxation, Chief Justice Taft wrote that “if Congress were to be required
to fix every rate, it would be impossible to exercise the power at all.”
Notably, in addressing a
different argument in the same case, Chief Justice Taft articulates how he is guided by the
interpretive principle that “a contemporaneous legislative exposition of the Constitution when
the founders of our Government and framers of our Constitution were actively participating in
public affairs […] fixes the construction to be given its provisions.”
He there refers to an earlier
case of his, Myers v. United States, in which he emphatically declares (writing for a 6-3 Court)
that the actions of the First Congress receive pride of place in the eyes of the judiciary when
interpreting the Constitution and the laws which organize our system of government.
one can reasonably conclude that Chief Justice Taft viewed the dismissal of Madison’s proposed
Mistretta v. United States, 488 U.S. 361, 412 (1989).
Id. at 400.
U.S. CONST., art. I, § 8, cl. 1.
J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 407 (1928).
Id. at 412 (citing Myers v. United States, 272 U.S. 52, 175 (1926)).
See Myers, 272 U.S. at 174.
Electronic copy available at:
separation of powers amendment as instructive is unclear, but what is clear is that he did
envision situations in which the Constitution not only permits but actually requires the blending
of otherwise-separate legislative, executive, and judicial powers.
Given Chief Justice Taft’s
willingness to give pride of place to the work of the First Congress in other matters of
constitutional interpretation, it appears as though the failure of Congress to enact Madison’s
proposed separation-of-powers amendment may have been a but-for cause of Chief Justice Taft’s
willingness to allow the executive branch (and by extension, the regulatory authorities under its
umbrella) to exercise what more or less amounts to legislative authority.
Alexis de Tocqueville warned of the consequences of expressing a preference for a
delegated regulatory framework over layman legislation, writing that in democracies, a wannabe
despot “does not ask [the governed] to aid him in leading the state; it is enough that they do not
aspire to direct it themselves.
As a result of the interpretive posture taken in the Hampton
decision, our elected representatives were able to pass the APA, and while it did seek by the
implementation of rule-making procedures to hold regulators to account, it was nonetheless a
fundamental expression of a desire for policy-making to be driven by experts.
In responding to
critics of his system of judicial interpretation, Justice Gorsuch similarly notes that “many living
constitutionalists would prefer to have philosopher-king judges swoop down from their marble
palace to ordain answers rather than allow the people and their representatives to discuss, debate,
See id. at 116.
ALEXIS DE TOCQUEVILLE, Democracy in America 485 (Harvey Mansfield trans., The University of Chicago Press
See George Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics,
90 NW. U. L. REV. 1557, 1559 (“The APA expressed the nation’s decision to permit extensive government, but to
avoid dictatorship and central planning.”)
Electronic copy available at:
and resolve them.”
As noble as the tendency to desire that policy be made by the competent
may be, Congress cannot enact legislation that abdicates its power to regulatory agencies to
achieve this end without being at odds with a republican system of government. There are things
Congress cannot meaningfully delegate without causing the executive branch and regulatory
agencies to do its job for it. In turn, then, enacting Madison’s proposed separation of powers
amendment would prevent Congress from delegating those things.
While the judiciary, by way of the Hampton decision, allowed Congress to delegate vast
swaths of its authority to the executive,
the doctrine of Chevron deference showed the judicial
branch more directly damaging the American system of separation of powers through its
interpretive posture.
Through Chevron deference, the Supreme Court has abdicated its
quintessential duty of “say[ing] what the law is,”
opting instead to defer to an administrative
agency’s statutory interpretation so long as that interpretation is “based on a permissible
construction of the statute.”
This deference is undertaken by the courts not only where
Congress has explicitly delegated a particular matter to an administrative agency but also in
situations where Congress has left a gap in legislation which an administrative agency implicitly
interprets is meant to be filled by it.
So long as an administrative agency’s interpretation is
reasonable, the courts will defer to it in these situations.
Thus, while administrative and
regulatory agencies have obtained what more or less amounts to legislative authority, it is
Honorable Neil Gorsuch, Why Originalism Is the Best Approach to the Constitution (September 6, 2019, 8:00
See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928).
See Islame Hosny, Interpretations by Treasury and the IRS: Authoritative Weight, Judicial Deference, and the
Separation of Powers, 72 RUTGERS U. L. REV. 281, 334-35 (juxtaposing Chevron deference and the consequential
administrative concentration of power with the separation of powers doctrine).
Marbury v. Madison, 5 U.S. 137, 177 (1803).
Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843 (1984)..
Id. at 844.
Electronic copy available at:
equally the case that because their interpretations will only be challenged if they are outside of
the bounds of reason, they have also obtained the power to interpret their own regulations. While
these actions may be a far cry from regulatory agencies declaring themselves invested with
power to legislate for us in all cases whatsoever,”
the fact remains that these agencies have
obtained a significant concentration of power over time.
Tocqueville clearly identified the desire, commonly experienced and omnipresent in new
democracies, people have to “withdraw to one side with [their] family and friends,” thereby
creating “a little society for [their] own use.”
Tocqueville further laid out that in democracies,
where this individualistic tendency towards isolation exists almost by definition, “despotism,
which is dangerous in all times, is therefore particularly to be feared.”
In short, this is because
in such a society, the despot comes into power by the consent of the governed and remains in
power by their collective indifference.
In the first instance, it would appear the solution to this
problem of despotism (and its potential manifestation in regulatory agencies) would consist in
snuffing out the very desire to defer to the judgment of the despot where it exists in the first
place, either among those within the legislative branch or among the general population who
elect them. In particular, if Congress reclaimed those powers which rightfully belonged to it,
then “ambition … [would] counteract ambition” as Madison had originally envisioned, and the
entire principle of delegation would become a theoretical, rather than practical, problem.
However, if the people as represented in Congress are so ambivalent to their system of
government as to find it amenable for regulatory agencies to possess quasi-despotic authority,
then how can a government block the implementation of a system which facilitates policymaking
TOCQUEVILLE, supra note 82, at 482.
Id. at 486.
Electronic copy available at:
in this way? The philosophical problems with simply dismissing these desires are only
exacerbated by the fact that the very first instance in which the First Congress engaged in
discourse on whether the Constitution should be amended involved a consideration of what it
meant that it began with the phrase “We the People.”
First, it must be acknowledged that the first three words of the Preamble of the United
States Constitution cannot reasonably be construed to mean that the Founding Fathers, or the
people they spoke for in framing the Constitution, were particularly concerned with protecting
popular sovereignty above all else.
In addition to Tocqueville’s warning against a progression
towards despotism by popular consent resulting from indifference,
Alexander Hamilton writes
in Federalist No. 1 that it is far easier for those seeking large swaths of power to obtain it by an
appeal to the people, declaring that “the greatest number have begun their career by paying an
obsequious Court to the people; commencing Demagogues, and ending Tyrants.”
There is
certainly the recognition among the Founding Fathers that the collective desire of the people
should not necessarily overshadow all else in policy-making. Yet the framers of our Constitution
were also realists,
and rather than attempt by some florid linguistics to prohibit demagoguery
among those seeking to rule, the Founding Fathers instead opted to use the tendencies of those
1 ANNALS OF CONG., supra note 43, at 745.
See THE FEDERALIST NO. 51, supra note 7, at 486 (James Madison) (“A dependence on the people is, no doubt,
the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”);
see also THE FEDERALIST NO. 62, supra note 7, at 531-34 (arguing for the indirect election of senators for longer
terms as a check upon the whims of the general population).
TOCQUEVILLE, supra note 82, at 485-86.
THE FEDERALIST NO. 1, supra note 7, at 252 (James Madison).
See THE FEDERALIST NO. 51, supra note 7, at 486 (James Madison) (“If angels were to govern men, neither
external nor internal controls on government would be necessary.”).
Electronic copy available at:
seeking power to their advantage in crafting a governmental system in which each branch of
government would check the power of the others.
Inevitably, however, such a system must fail where one or more branches lose the
ambition to frequently check the power of the others so as to secure their own vested powers. In
the post-1928 political climate, in which rule-by-expert has been articulated in both positive
and normative
terms as the preference of the people, the risk of the accumulation of too much
authority in one political branch is higher than ever. Since the Hampton decision, the judicial
branch has not so often reined Congress in when Congress has sought to delegate its authority to
the executive branch and its affiliated regulatory agencies, while since Chevron, the judiciary has
given those agencies more or less free reign to interpret Congress’s edicts as they see fit with
little judicial intervention. These developments are attributable to the legislative and judicial
branches’ failure to efficaciously counteract the ambitious executive branch and its
accompanying regulatory structures. As a result, the American system of separation of powers
needs to be bolstered in some way, and because of the extent to which case law which enabled
this delegation of regulatory authority in the first place is reliant upon the Constitutional
elucidations of the first Congress, the enactment of Madison’s proposed separation of powers
amendment would most perfectly refute this line of reasoning and articulate more robustly the
lines which each branch of government must not cross in delegating its authority to another.
See Hosny, supra note 86, at 284-85 (“[T]he U.S. Constitution contemplates a workable government, whose
branches, although separate, are also interdependent. The Framers knew that a system of checks and balances would
buttress the separation of powers.”)
See Gorsuch, supra note 84.
See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928).
Electronic copy available at:
In all fairness, a proposal to enact Madison’s proposed separation of powers amendment
presupposes that the current construction of the American doctrine of separation of powers is
problematic. While Hampton, Chevron, and the Administrative Procedures Act have certainly
worked in tandem to drastically alter the relationship between the three branches of American
government, to articulate this shift as problematic is fundamentally a normative conclusion. One
could just as easily argue that American government functions better when policymaking is
unfettered and centralized,
and so whatever governmental construction facilitates this outcome
is the construction which should be adopted.
However, this desire does not necessarily have to
result in the collection of power in the executive branch and the regulatory agencies under its
umbrella, to the detriment of separation of powers. In an op-ed published in TIME in 2019,
Justice Gorsuch posited that many critics of the Constitution and those who would ascribe to an
originalist interpretation of it “would prefer to have philosopher-king judges swoop down from
their marble palace to ordain answers rather than allow the people and their representatives to
discuss, debate, and resolve them.”
While Justice Gorsuch goes on to refute this preference, it
is nonetheless distinct from the desire for regulatory expert rule.
Perhaps Tocqueville’s cautionary words on despotism are a bit too hasty in the modern
context. If both the executive and the judicial branches have from time to time exceeded their
constitutionally apportioned authority, then for the legislative branch to engage in similar
behavior would articulate not a flaw of the American governmental system but rather its
See, e.g., Honorable Mariano-Florentino Cuellar, James Landis and the Dilemmas of Administrative Government,
83 GEO. WASH. L. REV. 1330, 1331 (2015).
See Shepherd, supra note 83.
Gorsuch, supra note 84.
Electronic copy available at:
resilience against despotism more generally so long as said despotic tendencies are spread out, so
that “ambition [is] made to counteract ambition.”
In particular, it should be noted that nothing
stops the people at large from electing regulatory-minded bureaucrats to Congress, and nothing
stops parties from tailoring who is on what Congressional committee to their areas of expertise
from outside of the chamber. Further, since the legislative branch already did reclaim its
authority on budgetary matters from the executive branch through its passage of the
Congressional Budget and Impoundment Control Act of 1974,
the Congressional Budget
Office is able to serve as a model for how the legislative branch can facilitate efficiency in
policy-making through the advent of regulatory agencies under the legislative umbrella. While
this slightly differs from the framework proposed by New Deal policymakers like James
it would bring about these policymakers’ desires without running afoul of separation
of powers in the process.
The legislature should legislate, the executive should execute, the judiciary should judge,
and no branch should attempt to accomplish the work of either of the other two. While the first
three of those four principles are clearly articulated in Articles I, II, and III of the U.S.
Constitution respectively, that document is silent as to the fourth. While a consideration of the
intent of the Founding Fathers, in particular as expressed in the Federalist Papers, would largely
demonstrate that this instance of silence was by design, allowing the interests of those seeking
power to work in the American constitutional system’s favor,
two problems prevent this
THE FEDERALIST, NO. 51, supra note 7, at 485 (James Madison).
Pub. L. No. 93-344, 88 Stat. 297 (1974) (codified as amended in scattered sections of 2 & 31 U.S.C.).
See Cuellar, supra note 103, at 1331 (noting the extent to which Landis’s reform proposals as one of the
forefathers of the SEC put him at odds with both Congress and the courts).
See THE FEDERALIST, NO. 51, supra note 7, at 485 (James Madison).
Electronic copy available at:
consideration from bearing much weight on an originalist interpretation of the American
constitutional structure: the originalist seeks to discern the Constitution’s original public
meaning rather than the original intent of those who signed and ratified it, and the very construct
proposed in the Federalist Papers to explain why an explicit separation of powers was not
adopted in the Constitution fails in modern society; ambition can no longer be relied upon to
counteract ambition. Meanwhile, the constitutional amendment proposed by James Madison in
the first Congress which would have enshrined those four principles as the cornerstone of
American constitutional law remains available as an option to ensure that some semblance of
separation of powers persists in American government even when one or more of its branches
lose the will to achieve their constitutionally-prescribed aims. While the argument that it is more
efficient and possibly more effective for regulatory authority to be concentrated in a given
agency more tailored to handle a specific governmental issue is compelling, late 20th century
developments like the advent of the Congressional Budget Office show that a compelling interest
in effective policy-making does not necessitate the full-scale rejection of the concept of
separation of powers, especially if regulatory authority is exercised from within the legislative
branch. Further, in addition to asserting the normative good of separation of powers in and of
itself, enacting Madison’s proposed separation of powers amendment would further force the
legislative branch to legislate with clarity, thereby facilitating effective execution of our laws and
limited judicial intervention, providing the American system of government with a stable future.
Electronic copy available at:
... Legislative power creates laws, the executive power enforces laws, and the judicial power interprets laws (Klassen and Brown, 2018;Zaring, 2020). In democratic countries, the separation of powers is typically implemented in conjunction with a system of checks and balances which are oft en included within a constitution, for each branch to counter and restrain the power of the other branches (Humphreys, 2021). However, tension between the three powers occurs very oft en, especially in unstable states. ...
Full-text available
In the public administration field, the legislative, executive and judicial frameworks should be consistent. The institutional framework of the Palestinian local government, however, seems largely impacted by an incoherent legal framework. Against this backdrop, this study describes the current local government institutional framework. Secondly, this study investigates the current issues relating to the legal and institutional frameworks of the Palestinian local government. A qualitative research approach was adopted to collect data in order to achieve the objectives of the study. The present research utilizes a combination of primary and secondary data. Nine interviews were conducted to gather the primary data, while scholarly works and government documents were used for gathering secondary data. The results show that fully governmental institutions are the most active within the institutional framework while non-governmental institutions are less active. The results also show that the primary obstacle for an efficient legal framework is due to previous laws, overlapping powers and weak legal practices. Furthermore, the institutional framework suffers from deformed structure and weak integration. The discussion section revealed that the current local government system can be best described as a “Chaotic Hybrid System”. When comparing the empirical results with the theoretical concepts, it is indicated that the current local government structure reflects the Public Choice Theory perspective, which advocates for horizontal and vertical fragmentation. However, the Israeli occupation and international funds seem to contribute to complicating the fragmentation of the structure. The structure hence could be described as “Altered Fragmented Structure”.
  • See Id
  • Id
  • J W See
  • Supra Tocqueville
  • Id
  • U S Const
  • J W Hampton
Judicial Deference, and the Separation of Powers
  • See Islame Hosny
See Islame Hosny, Interpretations by Treasury and the IRS: Authoritative Weight, Judicial Deference, and the Separation of Powers, 72 RUTGERS U. L. REV. 281, 334-35 (juxtaposing Chevron deference and the consequential administrative concentration of power with the separation of powers doctrine).
  • Annals