UNIVERSITY OF VIRGINIA SCHOOL OF LAW Public Law and Legal Theory Working Papers

The Real Separation in Separation of Powers Law

Elizabeth Magill

Working Paper No. 00-7 May 2000

A revised version of this paper is forthcoming in Virginia Law Review, September 2000.

This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection http://papers.ssrn.com/paper.taf?abstract_id=224797

2 The Real Separation in Separation of Powers Law M. Elizabeth Magill* (Draft: Do not cite without permission of the author)

[T]hree particles move in space under their mutual gravitational attraction; given their initial conditions, determine their subsequent motion.1

Thus states the three-body problem. Its simplicity should not fool us: it cannot be precisely solved. Under the same constraints, a two-body problem can be solved precisely. That is, the subsequent motion of the two bodies can be mapped and predicted with certainty. Add a third body and certainty disappears. The orbits [of the three bodies] can be calculated numerically for a while. . . But the equations cannot be solved analytically, which means that long-term questions about a threebody system cannot be answered.2 Those questions are fundamental; they implicate the long-term stability of the solar system. Perhaps we lawyers should not be discouraged, then, that we seem to make so little progress on our own three-body problem: the function of and relationship among the three institutions of the national government. Separation of powers is deceptively simple: three entities with three distinct powers and the relationship among the entities. And it appears to implicate vital questions about the health and stability of the governmental system. Still, we cannot seem to solve the problem of separation of powers. We are not even close. We do not agree on what the principle requires, what its objectives are, or how it does or could accomplish its objectives.

Associate Professor of Law, University of Virginia School of Law. Thanks to Kim FordeMazrui, John C. Jeffries, Jr., Michael Klarman, Alan Meese, Richard Merrill, Jennifer Mnookin, Glen Robinson, Jim Ryan, Leon Szeptycki, and Ted White for helpful comments and conversation; to John Butcher for research assistance; to participants in the Faculty Retreat and the Dillard Seminar at the University of Virginia, and faculty workshops at Vanderbilt School of Law and William and Mary School of Law; special thanks to Daryl Levinson, John Harrison, and Bill Stuntz. Errors remain my own.
1 2

June Barrow-Green, POINCARE AND THE THREE BODY PROBLEM 7 (1997). James Gleick, CHAOS: THE MAKING OF A NEW SCIENCE 145 (1987).

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Lack of progress is not for lack of attention. Law libraries house shelf after shelf of academic commentary devoted to the analysis of separation of powers questions. The debate is well-developed: it includes two competing schools of thought, usually known as formalism and functionalism, and the predictable bickering back and forth between adherents of each school. Nor is the debate confined to the academy. The Supreme Court has decided an ever-growing set of cases implicating separation of powers in the last twenty-five years. In its most recent outings the Court rejected President Clintons claim to limited immunity from civil suit while in office3 and invalidated the popular line-item veto.4 As those two cases and many others attest, the Court is not hesitant to rebuff the other branches of government to heed its view of the dictates of separation of powers. But the Supreme Courts case law is no more settled than the commentary: it has been called an incoherent muddle,5 produced by a Court that is stumped6 by separation of powers questions. This Article claims that we have made so little progress because we are arguing about the wrong questions. The hotly contested debate over formalism and functionalism is a distraction. A closer look at that debate reveals a surprise: despite surface disagreement, courts and commentators embrace a remarkably consistent set of ideas about separation of powers. That latent consensus is civics-class familiar. It holds that separation of powers is a way to prevent a single institution of government from accumulating excessive political power; the way to achieve that objective is to disperse the three governmental powers--legislative, executive, and judicial--among different institutions and equip each department with select powers to protect itself and police the other departments. Not only have we failed to notice this robust consensus residing just under the surface of the conventional debate, but, much more importantly, we have failed to critically examine it. Having exposed the consensus, this Article then critically examines it. The

3 4

Clinton v. Jones, 520 U.S. 681 (1997). Clinton v. New York, 524 U.S. 417 (1998). Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U.PA.L.REV. 1513, 1517

(1991).
6

Laura S. Fitzgerald, Cadenced Power: The Kinetic Constitution, 46 DUKE L.J. 679, 689

(1997).

The Real Separation

examination reveals the consensus to be underdeveloped, confused, and possibly incoherent. The key problem is that the consensus simultaneously embraces two distinct substantive conceptions of separation of powers that do not easily fit 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-powers, stresses the need to balance the departments of government through the creation and maintenance of tension and competition among them. Courts and commentators conflate the two conceptions or treat them as if they easily relate to one another. Muddling these two conceptions together, however, is a mistake. The conceptions do not easily relate to one another. They are distinct, both historically and conceptually. Attempts to connect the two prove fruitless and the conceptions suggest different--often irreconcilable--doctrinal concerns. And as a result of the muddling of the two ideas, neither of the conceptions has been independently subjected to critical analysis. The separation-of-functions conception, for its part, is poorly articulated and defended: the reasons why we might wish to separate governmental functions are all but lost in discussions of separation of powers. The balance-of-power conception is likewise underdeveloped: what is meant by balance is obscure and the way in which that balance is maintained is unstated. 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 seeing past the surface squabble between formalists and functionalists to the surprising, but robust, consensus, and, then, critically examining that consensus, this Article extracts 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. The Article is organized as follows. Part I describes the case law on separation of powers and reviews, briefly, the competing approaches to separation of powers that appear in the literature. The lesson of this Part is that, conventionally described, disputes over separation of powers controversies are organized around a choice between formalist and functionalist approaches. In Part II, I show why that conventional description is misleading. By stepping back from the surface split between formalist and functionalist methodologies, I demonstrate that courts and

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commentators actually agree on a theory of separation of powers. That theory is familiar, but it is now hidden in the contest between formalism and functionalism. Having noticed this consensus, Part III then critically examines it. Examination exposes the consensus as deeply confused and possibly incoherent. The key difficulty is that the consensus simultaneously embraces two distinct substantive conceptions of separation of powers. The different conceptions are muddled together in the consensus, but they are not the same, nor are they particularly compatible. And muddling them together has prevented critical examination of each conception on its own terms. The lesson of Part III, then, is that the latent consensus must be abandoned. Part IV concludes the Article and sketches the challenges ahead in the effort to fashion a new consensus. I. The Contested Terrain A. The Terrain: Separation of Powers Defined and its Resurgence in the Courts

The set of principles comprising separation of powers are far more easily invoked than defined. Separation of powers refers to a theory about the appropriate allocation of government authority among the institutions of the national government. It means, on the one hand, classification of governmental power into three categories, allocation of that authority to three different institutions, with separation of personnel among the institutions.7 Traces of this pure doctrine are evident in the Constitution: Articles I, II, and III refer to three different types of governmental power and allocate those powers to three different institutions with separate personnel.8 At the same time, the Constitution contains celebrated departures from pure separation, usually dubbed checks and balances: the Senates advise and consent functions, thought to be executive in nature9; Congress involvement in the judicial function of

M.J.C. Vile, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 14 (2d ed. 1998). See also Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1966-78 and n. 281. U.S. CONST. art. I, 1 (vesting legislative power in Congress); art. II, 1 (vesting executive power in the President); art. III, 1 (vesting judicial power in the Supreme Court); art. I, 6, cl. 2 (prohibiting Member of Congress from serving as officer of the United States).
9 8

U.S. CONST. art. II, 2, cl. 2.

The Real Separation

impeachment10; the Presidents power to approve or veto legislation, involving him in the legislative function.11 Separation of powers, so described, is concerned with an almost limitless set of questions regarding the structure of and relationship among the institutions of the national government: the character and structure of each institution (elected or appointed), including in some cases the internal structure of the institutions (division between the House and the Senate); the allocation of those institutions respective powers (legislative, executive, judicial); and the ways in which the institutions interact with one another (veto and override power, Senate advise and consent, impeachment). When one switches from theories about the ideal structure of and relationship among the institutions of the national government to the more limited set of questions judges address as they struggle to interpret and apply the provisions of the Constitution concerning separation of powers, the range of relevant questions remains enormous. Consider the issues conventionally described as within the separation of powers basket: the legitimacy of Article I courts, created by Congress and (usually) located in administrative agencies; the non-delegation doctrine; Congressional (or judicial) involvement in the appointment, or removal, of officials exercising functions that are not obviously legislative or judicial in character, including the specific subset of Appointments Clause questions raised by congressional limitations on the Presidents ability to remove officers; the legislative veto; the creation of hybrid entities, like the U.S. Sentencing Commission, to develop and implement particularized guidelines or administer certain tasks; the Presidents authority to initiate policy; the Presidents ability to veto aspects of legislation; the extent of the Presidents executive privilege and judicial immunity; and, the division of authority between the President and Congress with respect to foreign policy and war powers.12 But even beyond this set of conventionally described separation of powers disputes, there are others fairly characterized in the same way: for instance, the scope of the

10 11 12

U.S. CONST. art. I, 2, cl. 5; art. I, 3, cl. 6. U.S. CONST. art. I, 7, cl. 2.

See, e.g., Peter M. Shane & Harold H. Bruff, SEPARATION OF POWERS LAW (1996); 1 Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW 2 (3d ed. 2000).

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Commerce Power13; the legitimacy of judicial review of legislative and executive acts14; the scope of Congress authority over the jurisdiction of the federal courts.15 Each of these controversies involves separation of powers in that each involves the scope of power of one of the departments, or the way in which the national departments of government interact with one another. The breadth of this list goes a long way toward explaining why a commentator or court can, on almost any question involving the exercise of federal power, invoke separation of powers principles as relevant to the controversy. However one describes the content of the field, we are in the midst of a doctrinal revival of it. Until twenty-five years ago, there were a handful of cases that did all the heavy lifting with respect to federal institutional arrangements. The famous steel seizure case--Youngstown Sheet & Tube16--remains the significant pronouncement by the Supreme Court regarding the scope of the executive power. And the whole of the constitutional validity of the modern administrative state had, before 1976, been thought to be resolved by, on the one hand, the quixotic nondelegation doctrine--boldly emerging only to soon be all-but-officially retired17-and, on the other, a handful of cases on a narrow question regarding the Appointments Clause. Myers v. United States, decided in 1926, held that the Presidents power to remove an executive officer (in that case, a postmaster first

See United States v. Lopez, 514 U.S. 549 (1995) (invalidating Gun-Free School Zones Act as beyond the scope of Congress commerce power); see also Symposium: Reflections on United States v. Lopez, 94 MICH.L.REV. 533 (1995).
14

13

Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803).

See Peter W. Low & John C. Jeffries, FEDERAL COURTS AND THE LAW OF FEDERAL-STATE RELATIONS 213-264 (4th ed. 1998)
16 17

15

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (striking down provision of the National Industrial Recovery Act as impermissible delegation of lawmaking power to the President); A.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935) (same); Yakus v. United States, 321 U.S. 414 (1944) (upholding delegation of price control authority to the Office of Price Administration); see also Symposium: The Phoenix Rises Again: Nondelegation Doctrine from Constitutional and Policy Perspectives, 20 CARDOZO L.REV. 731-1018 (1999).

The Real Separation

class) could not constitutionally be conditioned on the consent of the Senate.18 Though Myers suggested that the independent aspects of some administrative agencies might violate the constitution, a mere nine years late in Humphreys Executor v. United States,19 the Court sustained Congressional restrictions on the ability of the President to remove a Federal Trade Commissioner. There, the Court declared that it was plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named.20 Though the Courts reasoning was unhelpful,21 Humphreys remains the prime support for the constitutional validity of independent agencies.22 Starting in the mid 1970s, the Supreme Court reentered this arena, and there is no exit in sight. It is true that a surprising number of basic questions about horizontal constitutional structure remain judicially unanswered, but the courts have traversed much terrain in the last twenty-five years. In a run that includes the invalidation of two veto provisions--the legislative veto in 1983 (Immigration and Naturalization Serv. v. Chadha23) and the so-called line-item veto in 1998 (Clinton

18 19

272 U.S. 52 (1926). 295 U.S. 602 (1935).

Id. at 629; see also Wiener v. United States, 357 U.S. 349 (1958) (holding President Eisenhowers removal of Wiener from the War Claims Commission over political differences illegal on grounds that the Commissions function was essentially adjudicative and neither the Constitution nor the statute in this case granted the President plenary removal powers over officials whose duties were not purely executive in nature). See, e.g., Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUMB. L. REV. 573, 611-12 (1984). Though the Court has never provided a more helpfully reasoned explanation, it remains firm in its conclusion that administrative and independent agencies will not be held to violate the Constitution. See Bowsher v. Synar, 478 U.S. 714, 726 n. 4 (1986) (noting that Courts holding does not cast doubt on constitutional status of administrative agencies); see id., at 760-61 (White, J., dissenting) (emphasizing that the Court does not hold that all officers wielding `executive power must be removable at-will by the President); see also Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 953-54 n. 16 (1983) (noting that Courts holding casts no doubt on agency lawmaking).
23 22 21

20

462 U.S. 919 (1983).

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v. New York24)--the Supreme Court alone has considered a steady stream of separation of powers controversies.25 Among its important holdings, the Court invalidated a statute providing for Congressional appointment of members of the Federal Election Commission (Buckley v. Valeo26); provisions of the Gramm-Rudman-Hollings deficit reduction scheme that assigned certain budgetary functions to the Comptroller General, an official who could be removed by a joint resolution of the Congress (Bowsher v. Synar27); participation by Congressmen on a review board with authority over decisions made by an entity administering National and Dulles airports (Metropolitan Wash. Airport Authority28); bankruptcy courts whose judges did not enjoy Article III protections (Northern Pipeline Constr. Co. v. Marathon Pipeline Pipe Line Co.29); and provisions of a securities statute that required federal courts to reinstate civil fraud actions that the Court had previously held were time-barred (Plaut v. Spendthrift Farm, Inc.30). In the same period, the Court sustained establishment

24 25

524 U.S. 417 (1998).

The lower courts similarly have considered a number of separation of powers cases. See Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) (holding that the President has the power to remove members of the Board of the National Credit Union Administration without cause in the interim between the expiration of their terms and the confirmation by the Senate of the Presidents appointments for replacement); FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C.Cir. 1993), cert. dismissed, 115 S.Ct. 537 (1994) (holding that Congress exceeded its legislative authority by placing congressional agents, the Secretary of the Senate and the Clerk of the House of Representatives, on the Federal Election Commission as non-voting ex officio members); Mail Order Assn v. United States Postal Serv., 986 F.2d 509 (D.C. Cir. 1993) (holding that the Postal Service has at least limited litigating authority independent of the Attorney Generals supervision); Mackie v. Bush, 809 F. Supp. 144 (D.D.C. 1993) (enjoining the President from removing members of the Board of Governors of the Postal Service Board); Securities and Exchange Commission v. Blinder, Robinson & Co., Inc., 855 F.2d 677 (10th Cir. 1988) (upholding SEC enforcement power); Berry v. Reagan, 32 Empl.Prac.Dec. (CCH) 31,304, vacated as moot, 732 F.2d 949 (D.C.Cir. 1983) (issuing a preliminary injunction blocking President Reagans removal of members from the Civil Rights Commission).
26 27 28 29 30

424 U.S. 1 (1976). 478 U.S. 714 (1986). 501 U.S. 252 (1991). 458 U.S. 50 (1982). 115 S.Ct. 1447 (1995).

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The Real Separation

of an independent counsel in the executive branch (Morrison v. Olson31); the promulgation of the Sentencing Guidelines by the U.S. Sentencing Commission, an independent commission in the judicial branch (Mistretta v. United States32); and the adjudication of common law counter-claims by an administrative tribunal (Commodity Futures Trading Commn v. Schor33). Also during this period, thanks mostly to the Nixon Administration, the Court decided several important cases about the scope of executive power. In those cases, the Court sustained the Watergate Special Prosecutors subpoena decus tecum against President Nixons claim of executive privilege (United States v. Nixon34); upheld the Presidential Recordings and Materials Preservation Act (Nixon v. Administrator, General Services Administration35); and, rejected (in a successor to yet-another Nixon case decided during this period36) President Clintons claim of a right to delay, during his tenure as President, a civil suit arising out of acts performed before he took office (Clinton v. Jones).37 B. The Terrain, Contested

Do not mistake the flood of cases for a developing consensus about resolving questions of horizontal constitutional structure. There has long been a lively debate about whether our separation of powers system is superior or inferior to a Britishstyle parliamentary system.38 And that debate has been recently renewed in the law review literature by Professor Ackerman, who provocatively attacks presidential

31 32 33 34 35

487 U.S. 654 (1988). 488 U.S. 361 (1989). 478 U.S. 833 (1986). 418 U.S. 683 (1974) 433 U.S. 425 (1977).

Nixon v. Fitzgerald, 457 U.S. 731 (1982) (President possesses absolute immunity from damages liability based on official acts).
37

36

520 U.S. 681 (1997).

For a sampling, Thomas O. Sargentich, The Limits of the Parliamentary Critique of Separation of Powers, 34 WILLIAM & MARY L.REV. 679 (1993); SEPARATION OF POWERS--DOES IT STILL WORK? (1986) (Robert A. Goldwin and Art Kaufman, eds.); see also Arthur M. Schlesinger, The Constitutional and Presidential Leadership, 47 MD. L.REV. 54 (1987).

38

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separation of powers systems and defends a modified version of a parliamentary system.39 But even among those courts and commentators working within the confines of the separation of powers system established by the Constitution, there is nothing resembling agreement. As the testy opinions in the line-item veto case reveal, the disagreement in the courts remains strong. And, as this Part will demonstrate, the commentary is just as contested. Among commentators, there are two well-defined and competing positions: formalism and functionalism.40 Commentators are usually categorized as adherents of one position or the other, and those few commentators searching for the ever-elusive third way.41 Recent commentary in the area is
39

See Bruce Ackerman, The New Separation of Powers, 113 HARV. L.REV. 633 (2000).

See, e.g., Flaherty, supra note ___, at 1732-1742; Brown, supra note ___, at 1522-1531; Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 SUP. CT. REV. 225, 226, 229-235; William B. Gwyn, The Indeterminacy of Separation of Powers, GO. WASH. L. REV. 474475 (1989); Harold J. Krent, Separating the Strands in Separation of Powers Controversies, 74 VA. L. REV. 1253, 1254-55 (1988); Harold H. Bruff, On the Constitutional Status of the Administrative Agencies, 36 AM. U. L. REV. 491, 495 (1987); Thomas O. Sargentich, The Contemporary Debate about Legislative-Executive Separation of Powers, 72 CORNELL L. REV. 430, 433 (1987); Cass R. Sunstein, Constitutionalism after the New Deal, 101 Harv. L. Rev. 421, 493-496 (1987). Some scholars employ different vocabulary, but their alternative terminology is largely consistent with the formalism/functionalism typology. See, e.g., Stephen L. Carter, Constitutional Improprieties: Reflections on Mistretta, Morrison, and Administrative Government, 57 U. CHI. L. REV. 357, 364-376 (1990) (describing competing separation of powers traditions as de- evolutionary/evolutionary); Stephen L. Carter, From Sick Chicken to Synar: The Evolution and Subsequent De-Evolution of the Separation of Powers, 1987 BYU L. REV. 719; Geoffrey P. Miller, Independent Agencies, 1986 SUP. CT. REV. 41, 5258 (classifying competing separation of powers analyses as neo-classical/pragmatic). Formalists: Martin H. Redish, THE CONSTITUTION AS POLITICAL STRUCTURE (1995); Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231 (1994); Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992); Carter, supra note __; Lee S. Liberman, Morrison v. Olson: A Formalistic Perspective On Why the Court Was Wrong, 38 AM. U. L. REV. 313 (1989); David P. Currie, The Distribution of Power After Bowsher, 1986 SUP. CT. REV. 2; Miller, supra note __. Functionalists: Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions A Foolish Inconsistency?, 72 CORNELL L. REV. 488 (1987); Strauss, Place of Agencies, supra note ___; Harold Bruff, Presidential Powers and Administrative Rulemaking, 88 YALE L. J. 451 (1979); see also Flaherty, supra note ___; Cynthia Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUMB. L.REV. 452, 488-96 (1989); cf. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L.REV. 123, 125-126 (1994). Those seeking another route: H. Jefferson Powell & Jed Rubenfeld, Dialogue: Laying It On the Line: A Dialogue On Line Item Vetoes and Separation of Powers, 47 DUKE L. J. 1171, 1200-1211 (1998); Peter B.
41

40

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The Real Separation

preoccupied by the so-called unitary executive debate and that sub-field is dominated by Constitutional text parsing and dueling accounts of the original understanding of the executive department.42 For its part, the Supreme Court vacillates between what is described as formalist and functionalist approaches, fully embracing neither, and sometimes borrowing from both.43 Neither of the dominant approaches, then, provides a consistent account of the methodology applied or the outcome of the cases. At one level, formalism and functionalism are quite familiar: they track the conventional choice between rules and standards.44 And, yet, in the context of this particular debate, the concepts travel with additional baggage beyond the choice between a rule or a standard. Breaking the approaches down into their constituent parts is hence useful; doing so allows us to focus more carefully on the points of disagreement among the commentators. 1. Formalism

McCutchen, Mistake, Precedent, and the Rise of the Administrative State: Toward A Constitutional Theory of Second Best, 80 CORNELL L. REV. 1, 4-11 (1994); Brown, supra note __; Merrill, supra note __ (although in some respects more fairly called a formalist); Krent, supra note __; Keith Werhan, Normalizing the Separation of Powers, 70 TULANE L.REV. 2681 (1996). See, e.g., Flaherty, supra note ___; Steven G. Calabresi & Saikrishna B. Prakash, The Presidents Power to Execute the Laws, 104 YALE L. J. 541 (1994); A. Michael Froomkin, The Imperial Presidencys New Vestments, 88 NW. U. L. REV. 1346 (1994); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUMB. L. REV. 1 (1994); Calabresi & Rhodes, supra note __. See Fitzgerald, supra note ___, at 689, 706, 714; Flaherty, supra note ___, at 1733; Strauss, Formal and Functional Approaches, supra note ___, at 489. The decisions that can be characterized at formalist include Clinton v. New York, 118 S.Ct. 2091 (1998); Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991); Bowsher v. Synar, 478 U.S. 714 (1986); Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983); Northern Pipeline Constr. Co.v, Marathon Pipeline Constr. Co., 458 U.S. 50 (1982); Buckley v. Valeo, 424 U.S. 1 (1976); Myers v. United States, 272 U.S. 52 (1926). The decisions that can be characterized at functionalist include Morrison v. Olson, 487 U.S. 654 (1988); Mistretta v. United States, 488 U.S. 361 (1989); Commodity Futures Trading Commission v. Schor, 478 U.S. 833 (1986); Wiener v. United States, 357 U.S. 349 (1958); Humphreys Executor v. United States, 295 U.S. 602 (1935).
44 43 42

See Mark Kelman, A GUIDE TO CRITICAL LEGAL STUDIES 15-63 (1987).

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For the formalist, questions of horizontal governmental structure are to be resolved by reference to a fixed set of rules and not by reference to some purpose of those rules (making the affinity to rule-based approaches obvious).45 Beyond a bare commitment to resolving disputes through a determinate set of rules, the formalist position further requires that the rules be derived from specific sources and, although there are domestic squabbles, there is fairly wide agreement among formalists about the content of the rules. As to the source of the rules, they are to be derived from the text of the Constitution and, for some but not all commentators, the original understanding of that text.46 Examination of these sources yields a set of rules; it is in these rules that one comprehends the piercing doctrinal bite of the formalist position. As Gary Lawson, a self-described formalist, explains:

Merrill, supra note ___, at 230; see also Redish, supra note __, at 99-102, 113-119, 131-133; Lawson, The Rise and Rise, supra note __, at 1249-1251; Carter, supra note __, at 357; Liberman, supra note __, at 343, 346; Miller, supra note __, at 53-58. See Gary Lawson, Territorial Governments and the Limits of Formalism, 68 CALIF. L.REV. 853, 859-60 (1990) (formalism is inextricably tied to both textualism and originalism . . . Formalism, at least in my hands, is the application of originalist textualism to questions of constitutional structure.). Some formalist commentators largely reject originalism, see Redish, supra note ___, at 6-10 (advocating a textualist, not originalist, approach to questions of constitutional structure); see also id. at Chapter 4 (stating and defending a `pragmatic formalist approach to separation of powers). Formalists who treat historical analysis as second in importance to textual analysis include Calabresi & Prakash, supra note __, at 550-559; Miller, supra note __, at 57-58. Formalists drawing extensively on both textual and historical analyses include Carter, supra note __, at 371 (arguing that the interpretive task is to meld text, structure, and history including the deep and rich political science of the Founding Generation into a coherent whole, by immersion in the intellectual currents of the Founding Generation); see generally Liberman, supra note __; Currie, supra note __. Deriving the rules from the text and original understanding is a conventional if controversial move, controversy that would be familiar to any who passingly follow debates about constitutional interpretation generally. In a nutshell, the pressing questions are these: Even if it were possible to arrive at a determinate understanding of the text and the original understanding, which it may not be, why should such sources control today? See, e.g., Flaherty, supra note __, at 1745-1755 (arguing that history is relevant to separation of powers analysis and that deeper historical accounts are required); Redish, supra note __, at 6-10, 126-128 (favoring text over history and rejecting Carters originalist separation of powers analysis); Calabresi & Prakash, supra note __, at 550-558 (asserting primacy of the constitutional text and defending standard originalist methodology); Lessig & Sunstein, supra note __, at 85-106 (arguing for translation of founders values in a context of changed circumstances); Carter, supra note __, at 364-371 (justification of originalism in terms of legitimacy and the understanding of the people).
46

45

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The Real Separation Formalists treat the Constitutions three vesting clauses as effecting a complete division of otherwise unallocated federal governmental authority among the constitutionally specified legislative, executive and judicial institutions. Any exercise of governmental power, and any governmental institution exercising that power, must either fit within one of the three formal categories thus established or find explicit constitutional authorization for such a deviation. The separation of powers principle is violated whenever the categorization of the exercised power and the exercising institution do not match and the Constitution does not specifically permit such a blending.47

Thus, the structural provisions of the constitution specify the type (legislative, executive, judicial) and place (Congress, President, Supreme Court) of all governmental power. The judge assessing the validity of an institutional arrangement must first identify the type of power being exercised and, unless one of the explicitly provided-for exceptions is relevant, make certain that that power is exercised by an official residing in the appropriate governmental institution. While all of the criticisms of formalist approaches will not be rehearsed here,48 two are worth mentioning because they highlight the differences between formalism and functionalism. First, heeding the identify-and-place rules would, it should be obvious, have dramatic practical consequences.49 Consider a dominant feature of contemporary government: administrative (including so-called independent) agencies. Both of the garden variety forms of administrative action--rulemaking and adjudication--present serious constitutional difficulties on the formalist account. Rulemaking, the promulgation of prospective, general rules that bind private parties, looks in many cases like the exercise of the power vested exclusively in Congress, that

Lawson, Territorial Governments, supra note ___, at 857-858; see also Redish, supra note ___, at 108; Liberman, supra note ___, at 343. See, e.g., Flaherty, supra note ___; Froomkin, supra note ___; Greene, supra note ___; Strauss, Place of Agencies, supra note ___. See Merrill supra note ___; Lawson, Rise and Rise, supra note ___; Strauss, Place of Agencies, supra note ___.
49 48

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15

is, legislative power.50 Likewise, adjudication of individualized disputes carried out in administrative agencies looks like a classic exercise of judicial power, a power vested by the Constitution in the Supreme Court and such lower courts as Congress creates.51

Some formalist commentators acknowledge that, on a formalist approach, there should be serious constitutional questions about the exercise of what looks to be legislative power by administrative agencies. See, e.g., Redish, supra note ___, at 136 (While definitional questions will arise as to whether action may properly be characterized purely as `legislative power rather than executive power, there can be little doubt that judicial abandonment of the nondelegation doctrine has authorized breaches of the definitional limitations.); id., at 141-161; Lawson, The Rise and Rise, supra note ___, at 1239-41. Yet the deep inconsistency with the formalist account of placing powers that appear to be indistinguishable from legislative powers within administrative agencies seems to be a blind spot for formalists otherwise committed to the cause. Many formalist commentators either ignore this apparent inconsistency, defend the exercise of legislative power by administrative agencies, see Saikrishna Bangalore Prakash, Deviant Executive Lawmaking, 67 GEO. WASH. L.REV. 1, 11-16 and n. 96 (1998) (delegation of discretion or legislative power unavoidable and permitted by the necessary and proper power); see id., at 14 (one may view delegated discretion as proper and necessary to the effectuation of legislative powers.), or heroically attempt to characterize the work of administrative agencies as merely interstitial policymaking and hence legitimate executive activity, see Liberman, supra note ___, at 347, n.209 (the supposed disjunction between the formalist approach and the realities of modern-day government go away once one accepts the proposition that execution of the laws includes interstitial lawmaking. ... At that point, most activities of law administering officers are appropriately characterized as executive.) This defense of legislative activity of administrative agencies might make sense if one wants ever more expansive power for the executive branch, but seems quite difficult to square with the rest of the formalist approach. For a criticism along similar lines, see Greene, supra note ___, at 157. Lawson, The Rise and Rise, supra note ___, at 1237-1249 ; Calabresi & Rhodes, supra note ___. On legislative courts, see Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV. 915 (1988); Martin H. Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1984 DUKE L.J. 197; Henry P. Monaghan, Marbury and the Administrative State, 83 COL. L. REV. 1 (1983). A formalist approach would also mean the end of the appointments arrangements governing socalled independent agencies such as the Federal Trade Commission. Statutory independence for commissioners (through, for example, limitations on the Presidents ability to remove them) at the helm of such agencies violates the tenets of the formalist rule book. Relying on the text of the Constitution--in this case, the vesting and take cause clauses of Article II--and the original understanding, formalists view the constitution as creating a hierarchical, unified executive department under the direct control of the President. See Calabresi & Rhodes, supra note ___, at 1165. On this reading, the President must have, at the very least, unfettered ability to appoint (with of course the advice and consent of the Senate) and remove such officers, which renders restrictions on the Presidents ability to remove officers unconstitutional. See Currie, supra note ___, at 34-36; Redish, supra note ___, at 130-31; Miller, supra note ___, at 44, 96-97.
51

50

16

The Real Separation

But it is more than transformative consequences that plague the formalist position.52 There is an independent problem with the formalist project: the enterprise depends heavily upon workable distinctions among the three categories of governmental power. For in order to place correctly, one must identify correctly.53 When examining the validity of an institutional arrangement--for example, the Sentencing Commission,54 the role of the Comptroller General under the GrammRudman-Hollings Act,55 or the Independent Counsel 56 --a formalist would have to determine, first, what sort of power the entities or officers were exercising. While the formalist approach thus presupposes an ability to distinguish among the three types of government power, the differences among those three powers are--to understate the point--elusive. James Madison famously admonished that Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces, the

While proponents of the unitary executive believe generally that the President should have control over his subordinates, opinions do vary as to how this control should manifest itself. Possibilities range from the plenary removal power advocated by the scholars above to direct presidential influence over administrative officials to declaring the actions of insubordinate subordinates legally void. See Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 58 (1995); Liberman, supra note __, at 353-358; Lawson, The Rise and Rise, supra note __, at 1243-1245 (arguing that removal power in itself is either inadequate or superfluous and that the President should be able to control directly the actions of administrative officials or to void administrative actions contrary to his policy goals). Formalists, of course, do not view the transformative consequences as an indictment of their approach. See Lawson, The Rise and Rise, supra note ___, at 1249 (stating a willingness to hold fast to the Constitution though the heavens may fall); Liberman, supra note ___ 347, n. 209, 357-358 (The fact that a theory justifies the status quo is not much of a virtue. It would be better that the political branches always devised institutions that complied with the Constitution.) and id. (The alternative view that any theory treating established institutions as constitutionally suspect cannot be right turns out in [the case of article I courts] to encourage the creation of more of them, ultimately to the detriment of constitutional rights.). For an exploration of this question in more detail, see M. Elizabeth Magill, Rethinking Separation of Powers (manuscript on file with author).
54 55 56 53 52

488 U.S. 361 (1989). 478 U.S. 714 (1986). 487 U.S. 654 (1988).

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Legislative, Executive and Judiciary[.]57 Nor are our learned contemporaries any more confident of their ability to define the differences among the three governmental powers.58 As Gary Lawson, among others, admits, [the problem of distinguishing the three functions of government has long been, and continues to be, one of the most intractable puzzles in constitutional law.59 The formalist position would, then, if consistently followed in the courts, require dramatic alteration of contemporary institutional arrangements and prevent experimentation along similar lines in the future. It is probably no accident, then, that Supreme Court opinions that are characterized as the most formalist (New York,60 Chadha,61 Bowsher62) are those in which the Court has invalidated the statutory arrangement under consideration. 2. Functionalism

Formalisms competitor, functionalism, is likewise a series of postulates rather than a single precept. While a formalist is committed to rule-based decision-making, a functionalist (making obvious the analogy to a standard) would resolve structural disputes not in terms of fixed rules but rather in light of an evolving standard

57 58

THE FEDERALIST NO. 37, at 196 (Clinton Rossiter ed., 1999).

William B. Gwyn, The Indeterminacy of Separation of Powers, 30 WM & MARY L REV 263 (1989); Clinton v. New York, 118 S.Ct. 2091, 2123-24 (1998) (Breyer, J, dissenting); Bowsher v. Synar, 478 U.S. 714, 749 (1986) (Stevens, J., concurring) (One reason that the exercise of legislative, executive, and judicial powers cannot be categorically distributed among three mutually exclusive branches of government is that governmental power cannot always be readily characterized with only one of those three labels. On the contrary, as our cases demonstrate, a particular function, like a chameleon, will often take on the aspect of the office to which it is assigned.) Lawson, The Rise and Rise, supra note ___, at 1238 n. 45. Likewise, Steve Calabresi has written, I do not disagree that the task is difficult or that the terms `executive, `legislative, and `judicial power lack a completely coherent independent meaning as a matter of either political science or history. Steven G. Calabresi, The Vesting Clauses as Power Grants, 88 NW. L. REV. 1377, 1390 n. 47 (1994).
60 61 62 59

524 U.S. 417 (1998). 462 U.S. 919 (1983). 478 U.S. 714 (1986).

18

The Real Separation

designed to advance the ultimate purposes of a system of separated powers.63 The agreed upon `ultimate purpose is to achieve an appropriate balance of power among the three spheres of government.64 As the Supreme Court observed in upholding the constitutionality of the Sentencing Commission, Congress neither delegated excessive legislative power nor upset the constitutionally mandated balance of powers among the coordinate branches.65 But functionalism, just like formalism, is more than allegiance to a method of deciding individual cases. The leading academic exponent of functionalism, Professor Peter L. Strauss, has developed a comprehensive approach that allegedly captures the virtues of a system of separated powers without requiring a radical dismantling of contemporary government.66 Those guidelines are gleaned from and constrained by the familiar formalist materials: the text, original understanding, and interpretation of the relevant provisions of the Constitution.67 Functionalist commentators tend to read those sources differently than formalists.68 And functionalists, moreover, are constrained by a factor that does not constrain formalists: the reality of existing government.69

63 64

Merrill, supra note ___, at 231.

See, Strauss, Formal and Functional Approaches, supra note ___, at 522; see also Flaherty, supra note ___, at 1810-38; Greene, supra note ___, at 125-126); Farina, Statutory Interpretation, supra note ___, at 488-96. The analysis contained in certain Supreme Court decisions conforms to what commentators describe as functionalist analysis. See Mistretta v. United States, 488 U.S. 361 (1989); Morrison v. Olson, 487 U.S. 654, 689-96 (1988); Commodity Futures Trading Commn v. Schor, 478 U.S. 833 (1986); Nixon v. Fitzgerald, 457 U.S. 731 (1982); Nixon v. Administrator, General Servs. Administration, 433 U.S. 425 (1977); United States v. Nixon, 418 U.S. 683 (1974).
65 66

488 U.S. 361, 412 (1989).

Strauss, Places of Agencies, supra note ___; Strauss, Formal and Functional Approaches, supra note ___; see also Farina, Statutory Interpretation, supra note ___; Bruff, supra note ___; Greene, supra note ___.
67

Strauss, Place of Agencies, supra note ___, at 596-640.

See Flaherty, supra note ___, at 1810-38; Greene, supra note ___, at 125-126); Farina, Statutory Interpretation, supra note ___, at 488-96; see also Lessig & Sunstein, supra note ___.
69

68

Strauss, Place of Agencies, supra note ___, at 581.

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19

For functionalists, the relevant sources happily suggest constraints that can accommodate those governmental institutions--administrative agencies--that pose the most serious challenge to a commitment to separation of powers.70 Professor Strauss achieves that accommodation with a disarmingly simple observation: the Constitution speaks only about the three named actors at the apex of government--Congress, President, and Supreme Court.71 As to those three named constitutional actors, Strauss sounds just like a formalist reciting the identify-and-place rules: as among them, only Congress may legislate, only the Supreme Court may adjudicate, and only the President may see to the faithful execution of the laws; and each is to have significant function in these respects.72 As for the subordinate parts of government-specifically, administrative agencies---no such rules apply. No such core function analysis is required by the Constitution for the subordinate parts of government--for, as Strauss points out, below [the apex of government] the text does not speak.73 The identify-and-place strategy is not necessary to achieve the benefits of separation of powers. So long as separation of powers is maintained at the very apex of government, a checks-and-balances inquiry into the relationship of the three named bodies to the agencies and each other seems capable in itself of . . . . preserving the framers vision of a government powerful enough to be efficient, yet sufficiently distracted by internal competition to avoid the threat of tyranny.74 Strauss would thus abandon the formalist effort to place administrative agencies in one branch or another, and likewise avoid the formalist requirement that the functions administrative agencies perform correspond to the function assigned to the branch in which they are located; instead, he would direct focus to the relationship between administrative agencies and all three of the actors at the apex of government.75 Those relationships

70 71

See, e.g., Curry, supra note ___, at 19-20; Miller, supra note ___, at 41-43. Strauss, Place of Agencies, supra note ___, at 639.

Strauss, Place of Agencies, supra note ____, at 596; see also id. at 579 (each must have effective responsibility for its unique core function;); id. at 639 (President, Congress and Supreme Court are undoubtedly to be distinct in form and in function.).
73 74

72

Strauss, Place of Agencies, supra note ___, at 639. Id.

Strauss, Place of Agencies, supra note ___, at 578-581; Strauss, Formal and Functional Approaches, supra note ___, at 492-496.

75

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The Real Separation

must be such that the tension between the executive and legislative departments of government will be maintained.76 While the literature contains numerous critiques of functionalist approaches,77 one will be emphasized here. That critique focuses on the difficult-to-apply methodology required by functionalism. Consider, for instance, some of the functionalist standards that courts are to apply: Congress must observe a principal of parity in its treatment of the possibility of political control of agency action by itself and by the President78 and the Presidents powers over administration and Congresss powers must be sufficient to give some assurance of maintaining a continuing tension over ultimate political authority between [the President] and Congress.79 These inquiries, of course, assume that balance, and its specific applications, are the right standards. But the objection goes beyond that: formalists argue that, even if we subscribed to the goal of balance, it would be impossible to determine whether a particular arrangement would create an imbalance. Given that balance among the departments would be unlikely to be upset at an identifiable moment in time, as the result of a single arrangement, the functionalist approach calls for a prediction that cannot accurately be made.80 When a new arrangement is initiated and challenged (consider the U.S. Sentencing Commission), how could the Court predict what effect the arrangement would have over time? This familiar criticism of the use of standards instead of rules may have particular bite in this

76 77

Strauss, Place of Agencies, supra note ___, at 641.

See, e.g., Redish, supra note ___, at 125; Liberman, supra note ___, at 345-47 (criticizing functionalism for elevating one objective of the doctrine--checks-and-balances--over all others, such as accountability, without defending that choice, and for mistaking the objectives sought to be accomplished by the vesting clauses for the clauses themselves). Though rarely noticed, functionalism, like formalism, also depends on, but fails to develop, the differences among the three powers of government. See M. Elizabeth Magill, Rethinking Separation of Powers (manuscript on file with author).
78 79 80

Strauss, Place of Agencies, supra note ___, at 641. Id. Redish, supra note ___, at 125-28.

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21

context given that the leading functionalist commentator appears to agree.81 If the standard cannot be applied effectively, the fear is that the immediate felt need for the challenged arrangement would overwhelm the relatively abstract benefits of adherence to a set of structural demands--even though, in the long run, adherence to the structural demands is the better course.82 As if to reaffirm that fear about the nature of a functionalist inquiry, opinions characterized as functionalist (most famously, Morrison v. Olson) have sustained the challenged arrangement, and the primary judicial proponent of the functionalist approach (Justice White) would have sustained challenged arrangements in every case he considered.83

3.

Those Seeking Compromise

A conventional assessment of the cases and commentary would end right here. But that catalogue ignores those relatively few commentators who seek ways other than formalism or functionalism to analyze separation of powers questions. One strand of brave soul has a simple solution: abstention. That is, have the courts refrain altogether from deciding questions of horizontal political structure, particularly in those cases where the Congress and the President agree on the outcome, a pattern typical of recent controversies (line-item veto; sentencing commission, independent counsel law).84 Most commentators, along with the Supreme Court, reject abstention. The more typical route among the small band of commentators is compromise: splitting the difference between formalism and functionalism, allegedly capturing the strengths

Strauss, Formal and Functional Approaches, supra note ___, at 513 (While `core function may be the best that the most sophisticated of analysts can suggest, it has no stable content. At best, `core function analysis can guard against a sudden demarche, but not against the step-by-step accretion of `reasonable judgments over time. The strength of flexibility is at the same time its weakness--as indeed Justice Whites consistent inability to apply his analysis with bite may itself suggest.).
82 83 84

81

See, e.g., Liberman, supra note ___, at 345-347; Redish, supra note ___, at 125-128. See Dennis Hutchinson, THE MAN WHO ONCE WAS WHIZZER WHITE 397 (1998).

Jesse H. Choper, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 260-379 (1980); Michael J. Perry, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS 49-60 (1982).

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The Real Separation

while avoiding the weaknesses of each.85 Others articulate alternative conceptions of separation of powers: one commentator would have courts explicitly consider individual due process interests in separation of powers cases,86 and others emphasize the political and institutional differences among the departments of government, rather than the differences in the types of powers exercised by those departments.87 For purposes of this Article, the important point about these commentators is that none of them have transformed the formalist-functionalist debate. In fact, in most of the attempts to find a third way, one detects the strong pull of formalism or

The most thoughtful of these approaches is the one developed by Professor Tom Merrill. See Merrill, supra note ___. In Merrills minimal approach, the substantive interpretation of the constitutional principle of separation of powers would reduce to a single, simple rule: Congress may not create a Fourth Branch of the federal government. Id. at 236. In this approach, every federal office would be in one of the branches of government and subject to the constraints on action that apply to that branch: Congress must act pursuant to bicameralism and presentment; the executive must act pursuant to statute or an enumerated constitutional power; and courts must act through the adjudication of cases or controversies. Id. at 239-241. Merrills approach would be a vast improvement over existing law, but, on close analysis, it suffers from some serious difficulties. See M. Elizabeth Magill, Rethinking Separation of Powers (manuscript on file with author). Aside from Merrills approach, there are a variety of other commentators who attempt to bridge the formalist-functionalist divide. See, e.g., H. Jefferson Powell & Jed Rubenfeld, Laying it on the Line: A Dialogue on Line Item Vetoes and Separation of Powers, 47 DUKE L.J. 1171, 1196-1209 (1998) (suggesting formalist approach when actions by Congress are in question and functionalist approach when actions by executive or judicial actors are at issue); Werhnan, supra note ___ (suggesting a formalist `separation norm that, when violated, triggers a second step, modeled on intermediate scrutiny in equal protection doctrine; second step to provide a `functional escape valve); McCutchen, supra note ___ (suggesting that Court accept structures--such as administrative agencies--that have become institutionalized even though those structures would have been unconstitutional in the first instance and, to compensate, sustain practices--such as the legislative veto--that mitigate the effect of the acceptance of the institutionalized structure). See Brown, supra note ___ (arguing that the courts should explicitly consider of the potential effect of institutional arrangements on individual due process interests). See Fitzgerald, supra note ___ (suggesting an approach based on the nested constituencies created by the constitutional structure and the way in which that structure maximizes the potential for debate and disagreement within and among various political constituencies); Victoria Nourse, Toward a `Due Foundation for the Separation of Powers: The Federalist Papers as Political Narrative, 74 TEXAS L. REV. 447 (1996) (emphasizing an understanding separation of powers that stresses political allegiances to different departments of government, as opposed to one that focuses on the need to separate governmental functions).
87 86

85

Draft functionalism, which simply reaffirms the salience of that divide.

23

C.

The Contested Terrain Reviewed

There are, then, a variety of approaches to separation of powers and, so far, none have captured the commentators or the courts. There is one lesson, however, that seems clear from this examination of the competing approaches: the disagreement among courts and commentators about how to resolve separation of powers cases runs deep. As this Part has described, there are many differences that divide the dominant schools. Formalists want judges to rely on a rule; functionalists want judges to rely on a standard. Formalists want those rules to be derived from text and/or original understanding; functionalists consider those sources, but they also want to preserve, if they can, settled institutional practices. Finally, formalists would be likely, applying the rules they derive from their sources, to dismantle much of contemporary government; functionalists, applying the standards they derive from their sources, would not. This many-layered disagreement seems about as profound as disagreement can be.

II. From Contested Terrain to Consensus

Casting the debate as a choice among formalism, functionalism, and splitting the difference between those two is importantly misleading. That depiction conceals the shared suppositions of nearly all of the participants. Stepping back from the divide as it appears in the literature reveals a surprise: courts and commentators embrace a remarkably consistent theory of separation of powers. As the next Part of this Article will argue, obscuring this consensus is not only misleading, it is misconceived because that focus has prevented us from critically examining the consensus. First, however, this Part identifies the components of that consensus and demonstrates the agreement about it. Courts and commentators, formalists and functionalists alike, subscribe to a consensus about the objective of the system of separation of powers and, also, about the mechanisms by which that objective is to be achieved. First, courts and commentators agree on the following objective: the system of separation of powers

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The Real Separation

is intended to prevent a single governmental institution from possessing and exercising too much power.88 Second, courts and commentators also basically, though not universally, agree on the mechanisms by which that objective is to be achieved. There are two components to those means. Commentators agree that governmental functions (legislative, executive, judicial) are to be dispersed among different governmental institutions. They also agree that, through the familiar features such as the Presidents limited veto, impeachment, and advice and consent, the institutions are given the means to protect the exercise of their own functions and check the exercise of functions by the others. This system will facilitate competitive tension among the branches which, in theory, yields an equilibrium among them, preventing one from

This objective is an intermediate, not ultimate, objective. That is, adherents of the consensus seek to prevent concentration of power in a single institution in order to achieve higher-order objectives. Those higher-order objectives are nearly always stated in lofty terms--avoiding tyranny, protecting liberty, and promoting the rule of law. Likes motherhood and apple pie, it is difficult to take issue with them. But they do no work in resolving individual cases. Nor is avoiding the concentration of political power in a single sphere of government the only objective upon which courts and commentators agree. But it is the only overarching, meta-objective that participants in the debate universally ascribe to the system of separation of powers. There are subordinate objectives, ones that relate to particular allocations of authority. For instance, vesting legislative power in the Congress is designed to give some substantial role in lawmaking to a body directly elected by the people, Currie, supra note ___, at 22, while the vesting of judicial power in Article III courts was designed to guarantee their independence, id. at 37. The most contested of the sub-objectives are those associated with the view that Article II establishes a so-called unitary executive. Those who subscribe to that construction of Article II emphasize reasons why the executive authority was vested in a single, elected, head of government: to promote the objectives of energy and accountability. See Calabresi & Rhodes, supra note ___; Calabresi Some Normative Arguments, supra note ___, at 37-47 (cataloguing reasons for unitary executive: energy, accountability, and enabling the President to defend himself from an encroaching Congress). Some unitary executive theorists argue that the meta-objective (avoiding undue concentration of power) is consonant with, see id., or should not be emphasized over, the objectives of energy and accountability, see Liberman, supra note ___, at 345 (criticizing functionalist approaches for elevating checks-andbalances objective above other objectives, such as accountability). Most critics of the unitary executive do not contest the objectives of energy and accountability; rather, they object to the relative weight that should be put on these objectives. See Flaherty, supra note ___, at 1740-42. Intriguing critiques of the unitary executive view are contained in Cynthia Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 CHICAGO-KENT L. R. 987 (1997) (efforts to legitimate government through strong President will be ultimately unsuccessful); Michael A. Fitts, The Paradox of Power in the Modern State: Why a Unitary, Centralized Presidency May not Exhibit Effective or Legitimate Leadership, 144 U. PA. L. REV. 827 (1996).

88

Draft becoming dominant.89

25

Agreement on the consensus position--that is, the principal objective and the means to achieve it identified here--can be found in both the courts and the commentary. For court opinions and commentators characterized as functionalist, the consensus on these points is obvious. The Supreme Court has noted that the objective of the doctrine of separation of powers is to avoid the greatest tyranny, namely, the accumulation of excessive authority in a single branch.90 As for the means, the Court has observed on numerous occasions that the the system of separated powers and checks and balances acts as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of another.91 The consensus about ends and means is also evident in the work of functionalist commentators, including the most influential of that group, Professor Peter Strauss, although with an important twist. Recall that Strausss approach works
89

This Part focuses on the agreement about the consensus among formalists and functionalists. It should be observed that those seeking a way out of that divide also embrace the consensus. See, e.g., Merrill, supra note __, at 255; see also id., at 252 (The minimal conception would create a dynamic tension between Congress and the other branches of government that would serve the central end of a system of separation of powers the diffusion of power to protect the liberty and security of the governed.); Powell & Rubenfeld, supra note __, at 1204-1209 (describing their separation of powers approach as an anti-unilateral-power, checks and balances approach); McCutchen, supra note __, at 21 (Arguing that the constitutional theory of the second best reinvigorates checks and balances and restores the proper allocation of government power: The constitutional theory of the second best seeks to preserve the constitutional structure by offsetting institutions that have been erroneously strengthened and by strengthening institutions weakened by a prior error.); Choper, supra note __, at 274-275 (The crucial issue is realistically to ascertain whether the institutionalized checks and balances that the framers indisputably devised to fortify the separation of powers thus excluding judicial review are themselves adequate to assure that the intended constitutional division of authority survives beyond its parchment statement.)
90

See, e.g., Mistretta v. United States, 488 U.S. 361, 381 (1989).

Buckley v. Valeo, 424 U.S. 1, 122 (1976); Clinton v. New York, 118 S.Ct. 2091, 2124 (1998) (Breyer, J., dissenting); Clinton v. Jones, 520 U.S. 681, 682 (1997); Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 273 (1991); Mistretta v. United States, 488 U.S. 361, 382 (1989); Morrison v. Olson, 487 U.S. 654, 693 (1988); Bowsher v. Synar, 478 U.S. 714, 850 (1986); Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 850 (1986); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 57-8 (1982).

91

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The Real Separation

on two levels: one set of rules for the named constitutional actors at the apex of government (President, Congress, Supreme Court) and one set of rules for the subordinate parts of government. At both levels, Strauss agrees on the consensus objective: preventing excessive accumulation of power in one sphere of government. He argues that the way to achieve that objective is through the creation and maintenance of competitive tension among the relevant entities.92 But for Strauss, creating and maintaining that tension is accomplished through different mechanisms depending on the level at which he is working. At the level of the named constitutional actors, Strauss would rely on what I have identified as the consensus mechanism: a functional dispersal of governmental powers (in Strausss vocabulary, core functions) and the various checks that the actors have on one another.93 At the subordinate level of government, Strauss agrees that the objective is to prevent one department from becoming dominant over others. But functional dispersal of power is not, according to Strauss, necessary to achieve that balance. The crucial doctrinal consequence of that move, of course, is to render administrative agencies constitutional, even though they appear to combine all three governmental functions in a single institution. Instead of functional power dispersal, Strauss relies on a series of rules and guidelines that are designed to create a certain type of relationship among agencies on the one hand and the Congress and the President on the other. The rules

Strauss, Place of Agencies, supra note ___, at 602 ([The purpose [of the government structure of separated powers and interlocking responsibilities] was to prevent both majoritarian rashness and the governmental tyranny that could result from the conjoining of power in a single source. Maintaining conditions that would sustain the resulting tension between the executive and the legislature was to be the central constraint on any proposed structure for government.); see also id., at 580 (What we have, then, are three named repositories of authorizing power and control . . . The three must share the reins of control; means must be found of assuring that no one of them becomes dominant.), id. at 581 (Describes his approach as a framework for understanding the scope of Congresss authority to structure government that stresses the continuance of opposed, politically powerful actors at the apex of government by requiring that those who do the work of law-administration have significant relationships with each.), id. at 597 (The important constraint on Congresss ability to structure the work of lawadministration lies in the need to perpetuate the tensions and interactions among the three named heads of the Constitution. Whatever arrangements are made, one must remain able to characterize the President as the unitary, politically accountable head of all law administration, sufficiently potent in his own relationships with those who actually perform it to serve as an effective counter to a feared Congress.), id. at 639, 641, 643, 667; Strauss, Formal and Functional Approaches, supra note ___, at 513. Strauss, Formal and Functional Approaches, supra note ____, at 492-94, 518; Strauss, Place of Agencies, supra note ___, at 578-581.
93

92

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are many and the guidelines rather complex.94 They are intended to structure the relationship among these actors in order to achieve the consensus objective by preserving the tension among the named branches,95 so that no one branch becomes dominant.96 Formalists, too, subscribe to the consensus. Opinions characterized as formalist, as well as most formalist commentators, take as a given that there are underlying justifications to the rules that they identify, justifications that accord with the consensus view. In the Supreme Court opinions characterized as formalist, the Court refers repeatedly to both the consensus objective (avoid undue accumulation of power in one sphere of government) and the consensus means (functional dispersal of power and selected checks).97

The rules are these: the President must appoint the head of the agency; the agency in doing the work must have a relationship with the president consonant with his obligation to see to the faithful execution of the laws and the President must be able to demand written reports from the agency prior to agency action. Strauss, Place of Agencies, supra note ___, at 640-41. The guidelines are these: the President supervises the work of administrative agencies in light of the elementary judgment that we have a unitary, politically responsible head of government, possessed of sufficient independent authority to serve as an enduring counterweight to the political muscle of Congress. Id., at 641; see also id. at 667. In recognition of this role, Congress must observe a principle of parity in its treatment of the possibility of political control of agency action by itself and by the President but the President may be able to claim relationships beyond the constraint of parity. Id., at 641.
95 96

94

Strauss, Place of Agencies, supra note ____, at 643; see id., at 641, 667. Id. at 641.

The most explicit references to the consensus ends and means appear in the following formalist opinions: Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 271-73 (1991); Bowsher v. Synar, 478 U.S. 714, 721-22 (1986) ([the declared purpose of separating and dividing the powers of government, of course, was to `diffus[e] power the better to secure liberty) (citation omitted); Buckley v. Valeo, 424 U.S. 1, 122-23 (1975). References to the consensus position are more difficult to identify in two formalist opinions, INS v. Chadha and Clinton v. New York. The majority opinion in Chadha, 462 U.S. 919, does little more than re-state the formalist rules: The Constitution sought to divide the delegated power of the new Federal Government into three defined categories, Legislative, Executive, and Judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility. Id. at 951. Yet the majority opinion does refer to vindicating the purposes underlying the Presentment Clauses . . . and the bicameral requirement, id. at 946. As identified by the Court, those purposes were to permit the President to check the exercise of authority by Congress (presentment) and to assure legislation was enacted only after much deliberation (bicameralism), see id. at 946-51. Justice Powells

97

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The Real Separation

Though more difficult to detect, formalist commentators likewise subscribe to the consensus position. As for the objective, as one commentator observed, the principle of separation of powers was designed to reduce the obvious dangers that flow from the concentration of political power;98 that is, separated powers is a strategy to reduc[e] the likelihood of undue concentration of political power.99 Formalist commentators likewise agree that the mechanisms to prevent concentration of political power are the dispersal of governmental functions among different departments and providing the respective branches with the formal tools necessary to limit the excesses of its rivals.100 One set of formalist commentators concisely captured the entirety of the consensus position: By simultaneously dividing power among the three branches and institutionalizing the methods that allow each branch to check the others, the Constitution reduces the likelihood that one faction or interest group that has managed to obtain control of one branch will be able to implement its political agenda in contravention of the wishes of the people.101

concurrence, furthermore, is filled with references to the consensus position, see id. at 960-63. The majority opinion in the Courts most recent invalidation of the line-item veto, strikingly, lacks discussion of the ends or means of the principle of separation of powers. See Clinton v. New York, 118 S.Ct. 2091, 2102-04 (1998); id. at 2108 (Thus, because we conclude that the Acts cancellation provisions violate Article I, 7, of the Constitution, we find it unnecessary to consider the District Courts alternative holding that the Act `impermissibly disrupts the balance of powers among the three branches of government.)
98

Redish, supra note ___, at 99.

Id. at 100; see also id. at 114 (the very fact of the concentration of political power in the hands of one governmental organ is unacceptable.); id. at 105-07. Id. at 106; see also id. at 102 (each segment of government is simultaneously given its own limited authority and the means of checking potential excesses of other governmental units); id., at 10506; Steven G. Calabresi and Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel, 79 CORNELL L.REV. 1045, 1052 (1994); Miller, supra note ___, at 54 (means to prevent undue concentration of power lie in the division of government among three branches and [a] carefully worked out ... system of checks and balances among them; the framers took seriously the Newtonian structure of attractive and repulsive political forces created by the Constitution); see also id. at 54-55; Currie, supra note ___, at 23, 31, 32. Martin H. Redish & Elizabeth J. Cisar, If Angels Were to Govern: The Need for Pragmatic Formalism in Separation of Powers Theory, 41 DUKE L.J. 449, 451 (1991); see also Calabresi & Rhodes, supra note ___, at 1156 (By thus fragmenting power and institutionalizing conflict, the new political science of the eighteenth century sought to obligate a government by men and over men
101 100

99

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29

On closer inspection, then, the debate over the proper approach to separation of powers is less contested than first imagined. Our excursion into functionalism and formalism in Part I did reveal deep disagreement, but the close inspection in this part uncovered a consensus about the ends and means of separation of powers that is embraced by nearly all participants in that debate. III. The Conflicted Consensus Perhaps it should come as no surprise that beneath the surface split lie deeply shared ideas about separation of powers. Mixed government, one of the intellectual precursors of separation of powers, has an ancient pedigree and, as every diligent civics student knows, power dispersal and selected checks are animating principles of the Constitutions design.102 But a standard depiction of the field paints deep disagreement between formalists and functionalists. The consensus is not acknowledged as the consensus it appears to be. It may be that status as shared articles of faith that explains why the propositions comprising the consensus are never carefully analyzed. Rather, the consensus operates like an anthem, sung as the enterprise commences, duly dampening the eyes of all involved as they nod their heads in approval. That anthem includes obligatory references to Madison and Montesquieus warnings that separation of powers is crucial to the prevention of tyranny and the protection of our liberty, and paeans to our enviable system of fragmented power and institutional competition. But the effort is superficial; the authors do not even clearly identify the components of the system that are the subject of such celebration, much less provide a precise explanation of the mechanism by which that system prevents tyranny and

`to control itself.) (quoting THE FEDERALIST No. 51). See Vile, supra note ___, at 3 (The doctrine of separation of powers finds its roots in the ancient world, where the concepts of governmental functions, and the theories of mixed and balanced government, were evolved.); id. at 168-176 (describing the two principles of proposed Constitution as separation of powers--separation of functions into three different departments--and checks and balances). See also Jack N. Rakove, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION, Chapter 6 (1996). One government textbooks definition of separation of powers and checks and balances accord with this statement of the consensus position, see James Q. Wilson and John J. DiIulio, Jr., AMERICAN GOVERNMENT: INSTITUTIONS AND POLICIES 33-35 (7th ed., 1998)
102

30 protects liberty.

The Real Separation

This Part subjects the consensus to close analysis. Doing so exposes it as deeply confused and possibly incoherent. The key difficulty is that the consensus simultaneously embraces two distinct substantive understandings of separation of powers. One understanding can be called separation-of-functions; the other can be called balance-of-powers. The conceptions are distinct, both historically and today. Despite this, courts and commentators muddle the two together, treating them as if they are the same, or, as if they easily relate to one another. But it is difficult, even tortured, to make the two conceptions compatible with one another, abstractly or doctrinally. And the muddling of the two has prevented critical analysis of each on its own terms. It is important to observe at the outset that formalist and functionalist commentators simultaneously adhere to these two conceptions, albeit with a difference in emphasis. That is to say, it is not that formalists adhere to one conception while functionalists adhere to the other. With respect to certain separation of powers questions--such as the constitutional status of administrative agencies-formalists emphasize one conception (separation-of-functions) and functionalists emphasize the other (balance-of-power).103 But, if one takes seriously the way in which commentators describe their own views on separation of powers, formalists and functionalists are committed to both conceptions of the consensus. A. Two Distinct Conceptions within the Consensus: Separating Power and Balancing Power

Consider again the consensus: the objective is avoiding excessive accumulation of power within a single institution of government; the means to achieve
Even with respect to the constitutional status of administrative agencies, the story is not that simple. Functionalist commentators would not accept an institutional innovation involving administrative agencies if that innovation threatened the core function of the branch at issue. See Strauss, Formal and Functional Approaches, supra note ___, at 489. That requirement to protect the core functions is rooted in a separation-of-functions conception, even though functionalists overall rule with respect to administrative agencies--relaxing the command of functional separation while still preserving tension and competition--is emblematic of the balance-of-power conception. And, with respect to separation of powers questions that do not relate directly to the constitutional status of administrative agencies--issues such as the independent counsel, the line-item and legislative veto, the scope and extent of executive privilege--functionalist and formalist commentators adhere, simultaneously, to the two conceptions.
103

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this objective are dispersal of governmental functions among three institutions and equipping each institution--through devices such as the limited Presidential veto, impeachment, the Senates advice and consent--to protect itself and check the others. 1. Two Conceptions: Separating Power and Balancing Power

What do those who endorse the consensus position mean when they write that one sphere of government must be prevented from accumulating too much power? The crucial term here is power and it is a term with multiple meanings.104 Participants in the debate are rarely clear about what they mean when they use the word.105 Case law and commentary actually reveal strains of two different understandings of the word power. The first meaning refers to the ability to act, or, ability to do or effect something or anything, or to act upon a person or a thing.106 This meaning of power has a familiar legal manifestation: authority, capacity, or right, authority or right to do or forbear derived by one person from another; for instance, the power to contract.107 A second meaning of power, however, is broader and more colloquial: The possession of sway or controlling influence over others; control; authority; command; government; influence; ascendancy; ascendancy, whether personal, social, or political.108 Each meaning is associated with a distinct substantive conception of separation of powers. a.
104

Separation-of-Functions

The OXFORD ENGLISH DICTIONARY provides fifteen definitions of the word power, each with its own subparts. WEBSTERS NEW INTERNATIONAL DICTIONARY (2d ed., unabridged) likewise supplies fifteen definitions of the word. This is not a new difficulty. See Vile, supra note ___, at 13 (An initial problem in any attempt to make a clear statement of the theory of the separation of powers is the ambiguity which attaches to the word `power in the literature. It has been used to mean the possession of the ability through force or persuasion to attain certain ends, the legal authority to do certain acts, the `function of legislating, executing, or judging, the agencies or branches of government, or the persons who compose these agencies.) OXFORD ENGLISH DICTIONARY, definition 1(a); see also WEBSTERS NEW INTERNATIONAL DICTIONARY (2d ed., unabridged), p. 1936, definition 1.
107 106 105

WEBSTERS NEW INTERNATIONAL DICTIONARY (2d ed., unabridged), p. 1936 WEBSTERS NEW INTERNATIONAL DICTIONARY (2d ed., unabridged), p. 1936.

108

32

The Real Separation

On one understanding, power refers to the ability to act, that is, the functions assigned by the Constitution to different departments of government. Call this the separation-of-functions understanding. Power refers to the three governmental functions (or, powers) identified in the Constitution: legislative, executive, and judicial powers (or, functions). The reference, then, to undue or excessive power is a reference to a single government entity exercising functions in addition to those identified in the Constitution as assigned to its department. There would be undue or excessive power in one realm of government when, for instance, the executive department exercises both executive power and legislative power. The exact reasons for a prohibition on the accumulation of government functions is surprisingly difficult to pin down. Other than declaring that the accumulation of functions is the very essence of tyranny,109 courts and commentators rarely specify why governmental functions must be parceled out to separate institutions. While this issue will be explored soon,110 a preview of the reasons provided for separating functions is useful. The justifications for separating functions can be reduced to three111: avoiding a concentration of political power in one sphere of government; checking the exercise of governmental power by each institution; and, promoting the rule of lawby prohibiting the same institution from making the law and enforcing the law. The separation-of-functions understanding is familiar and fits comfortably with some of the explanations provided by adherents of the consensus position. The oftrepeated Madisonian admonition from THE FEDERALIST NO. 47 makes reference to this separation-of-functions conception: The accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very

109 110 111

THE FEDERALIST NO. 47, at 269 (Rossiter ed. 1999). See TAN ___-___ (Part III.C.2.)

There is another reason for separating functions that, as I argue later, see infra TAN __-___ (Part III.C.2) is not operative today. That reason is efficiency; the idea is that separating functions permits each department to specialize in and master the task assigned to it.

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definition of tyranny.112 Contemporary adherents of the consensus position have this understanding of undue accumulation of power.113 This is the idea that the Supreme Court often invokes when it explains the importance of separation of powers.114 So too with many of the formalist commentators.115 Functionalist commentators are complicated in this respect. Professor Strauss subscribes to the separation-offunctions conception for the apex of government; he would rely on separation of functions with respect to the President, the Supreme Court, and the Congress. But, for Strauss, strict adherence to separation-of-functions is not necessary for the subordinate parts of government.116

THE FEDERALIST No. 47, at 260 (Rossiter ed. 1999). See also Gordon S. Wood, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787 451-52 (1969) (observing that Jefferson, among many others, used this formulation; both take the idea from Montesquieu). Brown, supra note ___, at 1515 (observing that the judges and academics who take up the subject of separated powers almost invariably invoke the quote from Madison set forth in the text) and id., n. 8 (The quotation from Madison, or language expressing the same idea can be found in nearly every modern judicial opinion on the subject of separated powers.). See Clinton v. New York, 118 S.Ct. 2091, 2109 (Kennedy, J., concurring); Metropolitan Wash. Airports Authority v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 272-75 (1991); Mistretta v. United States, 488 U.S. 361, 380-82 (1989); Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 859 (1986); Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919, 960 (1983); Northern Pipeline Const. Co. v. Marathon Pipeline Co. 458 U.S. 50, 57 (1982). Redish, supra note ___, at 102-108 (tracing the origins of separation of powers to the need to separate the functions of government to prevent undue concentration of political power in one part of government); id. at 108 (each branch is limited to the exercise of the power given to it, which, in turn is largely exclusive of the power exercised by the other branches (with the limited exceptions explicitly provided in the text that allow one branch to check another)); id. at 111-12 (No critic has adequately demonstrated either that the fears of undue concentrations of political power that caused the Framers to impose separation of powers are unjustified, or that separation of powers is not an important means of deterring those concentrations.); id. ( After all, no one can predict with certainty that, but for the formal separation of branch power, the nation would be likely to sink into a state of tyranny.); see also Lawson, The Rise and Rise, supra note ___, at 1237-41, 1246-49; Currie, supra note ___, at 19-20; Calabresi & Prakash, supra note ___, at 559-67. See TAN ___-___ (Part I.B.2.). As already observed, see supra note ___, Strauss position is more complicated than the one depicted in the text. Strausss rule with respect to administrative agencies operates against a background rule that no arrangement may undermine the core function of each of the departments. That core function requirement is a shadow of the separation-of-functions conception.
116 115 114 113

112

34 b.

The Real Separation Balance-of-Power

Separation-of-functions alone, however, does not fully describe the content of the consensus. On the other conception, power has its more colloquial meaning: strength, sway, or influence over another. Call this the balance-of-power conception. The concern is the accumulation of too much strength in a single sphere of government, and the resulting imbalance of power. Competition and tension among the departments play a crucial role in most versions of this conception: balance among the departments is maintained through the creation and maintenance of tension and competition among them. Such inter-branch rivalry prevents one department from accumulating excessive governmental power, apparently because rivalries will prevent collusive behavior (concentrating all of the political power in one of the spheres of government) among the three entities. The Constitutions grant of specific powers to permit the checking of one department by another (the limited Presidential veto, the Senates confirmation powers, Congressional impeachment powers, and, at least today, federal courts power of judicial review117) are critical because those are the formal means by which departments protect themselves and limit their rivals. But, by themselves, these formal mechanisms are no guarantee of balance of power. It is the

The original understanding of the role of judicial review is a question that has occupied many historians and I do not aspire to contribute to that debate here. For a sampling, see e.g., Dean Alfange, Jr., Marbury v. Madison and Original Understandings of Judicial Review: In Defense of Traditional Wisdom, 1993 SUP. CT. REV. 329; Sylvia Snowiss, JUDICIAL REVIEW AND THE LAW OF THE CONSTITUTION (1990); Robert Lowry Clinton, MARBURY V. MADISON AND JUDICIAL REVIEW (1989); see also John Harrison, The Constitutional Origins and Implications of Judicial Review, 84 VA. L.REV. 333, 336-68 (1998). Based on that literature, it does seem fair to say this: the founding generation did not think of judicial review as a robust check--akin to the Presidents limited veto power, the Senates confirmation power, or the Congress impeachment powers--on the exercise of authority by the legislative and executive departments of government. When the founding generation referred to the ability of one department to resist the excesses of another department, the devices that were being referred to were the Presidential veto, the Senates confirmation powers, or Congress impeachment powers. This historical record aside, it also seems fair to say that, today, many observers view judicial review as among the critical checks--akin to the Presidential veto--on the exercise of governmental power by the political departments. See, e.g., Michael J. Klarman, Whats so Great About Constitutionalism, 93 Nw. U. L.Rev. 145, 155 (1998); Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 GEO. W. L.REV. 1373, 1375 (1998); Nixon v. Fitzgerald, 457 U.S. 731, 760 (1982) (Burger, J., concurring) (judicial review is necessary to maintain checks and balances); cf. Nixon v. United States, 506 U.S. 224, 235 (1993) (judicial review of impeachment process used by Senate eviscerates the system of checks and balances because impeachment is among the few checks on the judiciary); id., at 241-44 (judicial review of impeachment process used by Senate is consistent with checks and balances).

117

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rivalry and tension among the departments that assures that those checking mechanisms will be used to maintain an appropriate balance among the departments. Just how tension and competition are created and maintained is never clearly spelled out by courts or commentators. Apparently, rivalries among the departments will arise naturally out of the tripartite governmental system that the Constitution establishes. That system is expected to generate the following incentives: individuals in each of the institutions will have an interest in jealously protecting the prerogatives of their home department and vigorously resisting efforts by those in other departments to expand their influence. Like the separation-of-function conception, the balance-of-power conception is familiar and can be detected in many references in case law and commentary. Our system is so often described as a way of creating a balance of powers among the departments-- separation of powers and checks-and-balances118 goes the stock phrasing--that is it easy to gloss over the assertion. As Justice Kennedy put it in his concurrence in the line-item veto case: Separation of powers helps to ensure the ability of each branch to be vigorous in asserting its proper authority. In this respect the device operates on a horizontal axis to secure a proper balance of legislative, executive, and judicial authority.119 And, usually, balance is thought to be maintained through tension and competition among the departments. Madison (again) is the source of some of the oft-repeated phrases associated with this aspect of the conception. He relied on the idea of a competitive system of government institutions when he wrote in THE FEDERALIST NO. 51 that each department must be given the necessary constitutional means and personal motives to resist encroachments of the others.120 As Madison famously advised, the personal ambitions of members of each department were critical to this system: [a]mbition must be made to counteract ambition121; the interest of the man must be connected with the constitutional rights

118

See, e.g., Buckley v. Valeo, 424 U.S. 1, 122 (1976); see also cases cited in note ___ supra.

Clinton v. New York, 524 U.S. 417, 451 (Kennedy, J., concurring); see also Printz v. United States, 117 S.Ct. 2365, 2370 (1997) (comparing separation of powers and federalism; separation of powers prevent accumulation of too much power in one branch); Nixon v. Administrator, General Serv. Administration, 433 U.S. 425, 443 (1977).
120 121

119

THE FEDERALIST NO. 51, at 289-90 (Rossiter ed. 1999). THE FEDERALIST NO. 51, at 290 (Rossiter ed. 1999).

36 of the place.122

The Real Separation

Today, not only are these Madisonian phrases repeatedly invoked, but their echo can be heard in the Supreme Courts habitual reference to separation of powers as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of another.123 Balance is identified here as the objective of the system; why seek to protect against encroachment or aggrandizement unless equilibrium among the departments is the objective? But the reference to the system as self-executing is obscure. The critical ingredient to a self-executing system would seem to be the tension and competition that will inhere in that system; if those in different departments consider themselves rivals, then they will automatically exercise the powers available to them to protect their own departments prerogatives and to resist efforts by other departments to expand their power. This balance-of-power conception is not confined to the case law; it can be detected in functionalist and formalist commentary. Functionalist commentators subscribe to the idea that the system of separation of powers is designed to maintain balance among the departments.124 For the leading functionalist commentator, tension and competition among the departments is the way to achieve that balance. As Peter Strauss writes, his approach stresses the continuance of opposed, politically powerful actors at the apex of government.125 But it is not only functionalists who lean on this
122

THE FEDERALIST NO. 51, at 290 (Rossiter ed. 1999). For a thoughtful contemporary exposition of this idea, see Nourse, supra note ___.
123 124

See Buckley v. Valeo, 424 U.S. 1, 122 (1976); see also cases cited in supra note ___.

See discussion of Strauss, TAN ___-___ (Part I.B.2.); Farina, Statutory Interpretation, supra note ___, at 488-99; Flaherty, supra note ___, at 1810-21; Greene, supra note ___, at 138. Strauss, Place of Agencies, supra note ___, at 581; see also Farina, Statutory Interpretation, supra note ___, at 488-89 and id. at 496 (And so, notwithstanding their literal sense, the words separation of powers came to connote something far more subtle and intricate than a mere, abstractly logical division. The phrase expressed the expectation that, through the carefully orchestrated disposition and sharing of authority, restraint would be found in power counterbalancing power.) (The peculiarly American conception of separation of powers that they [the founders] developed sought balance, not stasis.) While Abner Greene rejects the label functionalist or realist, see Greene, supra note ___, at 124, his account of the meaning of separation of powers--which is grounded in the framers principles-endorses the idea that the system is intended to achieve a balance among the departments of government. See Greene, supra note ___, at 138 (The bottom line was not strength in the executive, but rather
125

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conception of separation of powers. Formalist commentators, as well, invoke the idea of balance (though often without the word balance itself126) through inter-institutional rivalry and competition. One touts the system of separation of powers as creating a Newtonian structure of attractive and repulsive political forces127 and others refer admiringly to our system as fragmenting power and institutionalizing conflict.128 2. Historical Antecedents of Todays Conceptions: Distinct and Conflicting

That there are distinct conceptions of the principle of separation of powers should come as no surprise. The Constitution, after all, is a blend of two different theories about the design of government: separation of powers--the idea that the functions of government should be exercised by separate personnel in separate governmental institutions--and so-called checks-and-balances--an idea that traces its origins to the classical theory of mixed government, and mixed governments later manifestation in Englands mixed or balanced constitution.129 Even though they have evolved considerably, the two conceptions contained within todays consensus bear

balance between the branches, secured through a division of power.); see also Flaherty, supra note ___ (arguing that the best historical understanding of separation of powers is a system aimed at achieving balance among the departments of government). 'Balance is a word formalists are unlikely to use because of its association with functionalist analysis. Formalists eschew the functionalists standard-like approach which, they think, will permit (if not encourage) a court to validate any arrangement before it. See, e.g., Redish, supra note ___, at 100 (Pragmatic formalism, on the other hand, is a street smart mode of interpretation, growing out of a recognition of the dangers to which a more functional or balancing analysis in the separation-ofpowers context may give rise. ... [I]t recognizes that even if functionalism and balancing could be employed with principled limitation, any such interpretational approach inherently guts the prophylactic nature of separation-of-powers protections, so essential a part of that system.); Liberman, supra note ___, at 343-51. For an illustration of the refusal to use the word balance, even though that is the meaning invoked, see Morrison v. Olson, 487 U.S. 654, 698 (1988) (Scalia, J., dissenting) (Referring to separation of powers as [t]he allocation of power among Congress, the President, and the courts in such a fashion as to preserve the equilibrium the Constitution sought to establish.) (emphasis added).
127 128 129 126

Miller, supra note ___, at 54. Calabresi & Rhodes, supra note ___, at 1156.

Vile, supra note ___ , at 168-176; Wood, supra note ___, at 602-06; see also Rakove, supra note ___, at 245-46 (making the same point with respect to ideas about the Presidency).

38

The Real Separation

unmistakable markings of these antecedents. Fully tracing the historical development of and relationship between these two types of governmental organization is beyond the scope of this Article. But a brief excursion into the intellectual development of these two models of government is a necessary precursor to understanding the American effort to blend the two ideas. More importantly for our purposes, this excursion is necessary before we can understand difficulties of the present consensus, and, in particular, our failure to notice the differences and tensions between the two conceptions that are now incorporated into that consensus. The U.S. Constitutions famous blend of two different governmental designs was not an easy intellectual feat.130 As Gordon Wood observed, [this new [American] interpretation . . . was tending to blur the once distinct theory of balanced government among social orders with the doctrine of separation of governmental departments.131 The fusion was uneasy because of the independence of and tensions between the theories of separation of powers and mixed or balanced government.132

Rakove, supra note ___, at 244-87; Forrest McDonald, NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION 225-60 (1985); Vile, supra note ___, at 131-92; Gwyn, supra note ___, at 100-28. See Wood, supra note ___, at 453 (Wood here is specifically referring to discussion of a limited executive veto power and the need for bicameralism); see also Vile, supra note ___, at 131-192; Rakove, supra note ___, at 245-46; Gwyn, supra note ___, at 100-28; Farina, supra note ___, at 488-499. See Wood, supra note ___, at 153; Vile, supra note ___, at 36-37 (The theory of mixed government is logically quite distinct from the doctrine of the separation of powers, yet these two theories have been closely connected with each other over much of their history. The theory of mixed government is much the older of the two[.] The two doctrines are not only logically distinct, but to a considerable extent they conflict with one another other.); Rakove, supra note ___, at 245-46 (As several studies have painstakingly explained, the relation between these two theories [ancient theory of mixed government and separation of powers] was fraught with ambiguity. . . . In securing the balance that both principles were expected to promote, the two theories could be regarded as complementary, alternative, or even rival explanations of the `matchless constitution that Britons and Americans revered.); McDonald, supra note ___, at 84-85 (It is important to notice that Montesquieus theory of the separation of powers is not only different from but is also nearly irreconcilable with the English idea of checks and balances. In the English scheme of things judicial power was exercised mostly by the Kings courts, but for certain purposes both the Lords and the Commons had judicial authority; and several traditionally executive powers, including control of the military and the currency, had for practical purposes devolved upon the Commons. In principle, the British constitution provided for separation of personnel, rather than for division of function, and even that principle had come to be largely disregarded in practice. The Crown, no longer daring to use the veto that theoretically gave it a direct role in the
132 131

130

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Indeed, the ideas were considered competing blueprints for governmental design.133 W.B. Gwyns admired intellectual history of separation of powers points to the independence of the ideas, both analytically and historically: Logically the conception of the balance of governmental powers is distinct from that of separation of governmental functions, and . . . the two concepts had historically been entertained independently of one another.134 Gwyn and others who have described the early intellectual history of separation of powers ideas (a century before Montesquieus influential 1748 exposition in The Spirit of the Laws) explain that separation of powers notions developed in response to the series of constitutional crises in seventeenth century England.135 In that sense at least, the theory of separation of powers can be seen as an effort to find an alternative to or modification of mixed government as conceptualized in seventeenth century England.

legislative process, maintained the balance of the system through patronage.). See Vile, supra note ___, at 3, 37, 107; Rakove, supra note ___, at 246-47; Wood, supra note ___, at 150-57; Gwyn, supra note ___, at 26-27, 47-48, 126-27. See Gwyn, supra note ___, at 104. The account presented here relies heavily on Gwyn and Viles CONSTITUTIONALISM AND THE SEPARATION OF POWERS, as well as the work of historians who write more generally about this period. The works produced by Gwyn and Vile are acknowledged to be the definitive accounts of the history of separation of powers in the American context. See, e.g., Wood, supra note ___, at 151 n. 44; Rakove, supra note ___, at 404 n. 4. Those crises being the Civil War, Interregnum, Restoration, and, the Glorious Revolution. See Gwyn, supra note ___, at 37 (Among the doctrines attaining some prominence at this time [following the outbreak of the English Civil War] was that of separation of powers, which arose out of republican dissatisfaction with the manner in which England was being governed by the Long Parliament.); Vile, supra note ___, at 36 (This idea [separate functions exercised by separate governmental bodies] did not spring into mens minds from nowhere; they were led into it through the process of adapting the familiar, age-old theory of mixed government to the problems they faced, and finally, when they found this theory to be no longer relevant to their situation, they replaced with the new ideas it had fathered.); id., at 58. See also Rakove, supra note ___, at 246 (Both theories [mixed or balanced government and separation of powers] emerged from the great disputes of the mid-seventeenth century--the era of revolution and regicide, Long Parliament and Commonwealth, the Protectorate of Oliver Cromwell and the Restoration of Charles II. Responding to the royalist reliance on mixed government in the escalating conflict of the 1640s, several supporters of Parliament first sketched a theory of separation of powers. In their view, the most objectionable prerogatives were those than enabled the kind to govern without Parliament, veto legislation, and suspend or dispense with duly enacted statutes. If these powers were abrogated, the Crown would be restricted to truly executive functions.)
135 134 133

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The Real Separation

The differences between the two models of government organization can be seen most starkly in the definitions of their pure forms. A government based on thoroughgoing separation-of-powers would have three departments of government; each department would exercise one of the three functions of government--legislative, executive, judicial; there would be separation of personnel among the departments; and there would be no blending of the functions among the departments.136 There are a variety of reasons for so separating governmental functions.137 At the highest level of generality, though, a system of separated powers is after a familiar liberal end: controlling, and making safe, the exercise of state power. Mixed government has that same objective, but it is satisfied differently. Mixed government is not organized around identification and institutional separation of governmental functions. Rather, it is based on the participation of different social orders of society in lawmaking.138 In its classical formulations, in Aristotles Politics and Polybiuss Histories, the ideal constitution permits each of the classes of society to participate in lawmaking. Such an arrangement would, among other benefits, control the exercise of state power and create a stable governmental system. Each of three classes of society--the one, the few, and the many (or, to put the classes in the later vocabulary of the estates of the realm: the king, the lords, and the commons)-must play a role in lawmaking and in that way, no one class can impose its will on the others. Mixed government is superior to the natural forms of government for each of the three classes: monarchy is the natural form of government for the one (or the crown), but that risked tyranny; aristocracy is the natural form for the few (or the aristocracy), but that risked oligarchy; and democracy is the natural form for the many (the commons), but that risked extreme democracy, that is, anarchy or mob rule. Mixed government is the solution: through a mixture of monarchy, aristocracy, and democracy, each of the social orders participates in lawmaking, and no one of the classes can impose its will on the others; state power will be controlled, made safe,
136 137

Vile, supra note ___, at 14. See TAN ___ - ___ (Part III.C.2.).

Vile, supra note ___, at 37 (mixed government is based upon the belief that the major interests in society must be allowed to take part jointly in the functions of the government); see also Rakove, supra note ___, at 245-46; McDonald, supra note ___, at 80-81; Wood, supra note ___, at ___. See also James M. Blythe, IDEAL GOVERNMENT AND THE MIXED CONSTITUTION IN THE MIDDLE AGES Chapts. 1, 2 (1992); Scott Gordon, CONTROLLING THE STATE: CONSTITUTIONALISM FROM ATHENS TO TODAY Chapts. 2, 7 (1999).

138

Draft and government will be stable.139

41

Translated to seventeenth century England, on the eve of the formal start of the Civil War, the mixed constitution--as famously declared in Charles Is 1642 His Majesties Answer to the Nineteen Propositions of Both Houses of Parliament--meant that the government of England is vested in three estates, the king, the lords, and the commons, and. . .the health and very survival of the system depend upon the maintenance of the balance between them.140 This was a dramatic re-explanation of the nature of the British constitution, from an asserted divine right to rule vested in the monarch (asserted by Charles I just two years before) to a balance among the estates, with the crown among the estates to be balanced. As J.G.A. Pocock explains, after Charles Is answers, government is a contrivance of human prudence, blending together three modes of government--the only three that can exist--each of which possessed its characteristic virtues and vices. . . . This blend is a balance, an association in which each partner contributes its particular virtue, while inviting the others to check its particular vice.141 Crown-in-parliament is thus explained as a manifestation of mixed or balanced government. The differences between the two ideas should be evident. To be sure, both are united by the objective of controlling the exercise of governmental power. And there is the uncanny presence of categories of three in each of the systems--three social orders, three functions of government.142 But the categories of three are, to state the
139

The description of mixed government in this paragraph draws on the following sources: J.G.A. Pocock, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION 66-80 (1975); Wood, supra note ___, at 602; McDonald, supra note ___, at 8082; Vile, supra note ___, at 58-82. Pocock, supra note ___, at 361; see also Michael Mendle, DANGEROUS POSITIONS: MIXED GOVERNMENT, THE ESTATES OF THE REALM, AND THE MAKING OF THE ANSWER TO THE XIX PROPOSITIONS (1985).
141 142 140

Pocock, supra note ___, at 362-63.

See McDonald, supra note ___, at 80 ([I]n thinking of government, Americans followed a practice that was deep-seated in the Western world, namely, an almost mystical habit of thinking in threes. In part the habit may have stemmed from the concept of the Holy Trinity; in part it doubtless stemmed from Aristotles division of forms of government into monarchy, aristocracy, and polity or constitutional democracy (with their counterpart evils . . . ). Yet another source was the practice, which was apparently common to all Indo-European societies, of dividing all men into three classes: those who fight, those who

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The Real Separation

obvious, different. The divergence between the ideas is starkly illustrated by the distribution of lawmaking power. In a mixed or balanced system, the three estates must all participate and hence be balanced against one another in the lawmaking body. Thus, not only does parliament represent through its separate houses the aristocracy and the commons, but the monarch participates in parliament, the latter being a clear departure from pure separated functions. In a separation of powers system, the legislature, by itself, is charged with the task of legislating.143 The U.S. Constitution is a famous fusion of these two ideas.144 Remnants of each design, though importantly modified, are identifiable. The first three articles of the Constitution institute a separation of powers system by identifying three types of governmental power, allocating them to three different departments, and providing for separation of personnel among the departments.145 Though there are traces of mixed governments three estates in the three departments, the departments, it should be emphasized, do not represent the three social orders as in mixed government.146 Instead, the three institutions are identified by their assigned tasks, not by their representation of a social orders. The first three articles also establish what we have come to call checks and balances, namely, some departures from functional

pray, and those who work. In medieval Europe these classes translated into estates; in England, the corresponding estates of the realm had been the Lords Temporal, the Lords Spiritual, and the Commons.); see also Vile, supra note ___, at 16.
143 144

See Rakove, supra note ___, at 245-46; Vile, supra note ___, at 14.

The blend of the two ideas began in England. See especially Vile, supra note ___, at Chapts. 3 and 5; Gwyn, supra note ___, at 100-128.
145

See TAN ___-___ (Part I.A.).

See Vile, supra note ___, at 166 (Thus was the whole emphasis of the mid-eighteenthcentury theory of the balanced constitution transformed. The ideas and vocabulary that had formerly been applied to monarchy, aristocracy, and democracy were firmly transferred to the legislative, executive, and judicial branches of government.); Wood, supra note ___, at 453 (The `proper Balance in the three Capital powers of Government that men now spoke of was not always that of monarchical, aristocratic, and democratic elements of a mixed polity, but often that of the executive, legislative, and judicial functions.) (describing evolution of idea as of early 1780s); id., at 602-615; id., at 604 (Americans had retained the forms of the Aristotelian schemes of government but had eliminated the substance, thus divesting the various parts of the government of their social constituents.) (describing the evolution by the time of the framing of the Constitution); Rakove, supra note ___, at 251-252.

146

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separation--limited Presidential veto, Senates advice and consent, Congresss impeachment powers--so that one department can check another.147 Those departures from separated powers, and the checking and balancing that such departures are designed to bring, are drawn from the mixed government tradition, shorn, of course, of the class bias of that system.148 Todays conceptions, as sketched here, resemble the two pre-constitutional ideas, as they were fused together in the Constitution. There is an emphasis on classifying and institutionally separating the functions of government (separation-offunctions) as well as a modified version--without the class bias--of mixed government (balance-of-power). Historians have written about the Constitutions marriage of these two ideas.149 Suffice it to say that the marriage is a troubled one. One difficulty in the transition from the European idea of mixed government to the U.S. version is worth noticing here because of its relevance to the problems with the present consensus. In a mixed or balanced system, the balance is among the different classes in society. That balance works, in theory, because one expects that a person drawn from a social class will have allegiance to that class and, also, may hold particular views as the result of affiliation with his class. Hence, if all the social classes participate in lawmaking, no one can impose its will on the rest.150 In the modified U.S. version of mixed government, the balancing is among functionally differentiated institutions, not social classes. How functionallydifferentiated institutions can be balanced remains a puzzle: how can the executive and legislative departments be considered balanced? Moreover, the mechanism by which that balance is achieved is obscure. In the mixed system, one drawn from a social class can be expected to have allegiance to that class. In the modified U.S. version, it is likewise assumed that individuals in each institution will have allegiance to their home institutions, and hence jealously guard the prerogatives of that institution. But how is it that individuals in functionally-differentiated institutions will have the same level of loyalty--akin to the allegiance one might have for her own
147 148 149 150

See TAN ___-___ (Part I.A.). See, e.g., Wood, supra note ___, at 602-615; Vile, supra note ___, at 162-92. See Vile, supra note ___, at 131-92; Gwyn, supra note ___, at 100-128. See TAN ___-___.

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The Real Separation

social class--to the institution in which they find themselves? Perhaps they do, but the conditions creating that sort of loyalty are obscure and, as a result, the arrangements that might threaten that allegiance are not identified. The transitions, then, from balanced classes to balanced powers and from loyalty to class to loyalty to institution are not simple ones. Noticing the similarities between todays conceptions and their forerunners should not obscure important evolution in the ideas. In particular, todays balance-ofpower conception usually leans heavily on the idea of competition and tension among the departments of government to achieve balance. The idea of competition and tension can be traced to the founding articulation of the U.S. system: Madisons reference in THE FEDERALIST NO. 51 to the necessary constitutional means, and personal motives, to resist encroachments of the other151 departments evokes the image of competitive system. Even so, emphasis on tension and competition has virtually taken over the balance-of-power conception and that emphasis has a modern cast about it. B. Todays Muddling of Distinct and Conflicting Conceptions

Whatever the relationship between the historical precursors and todays conceptions, they do share one similarity: just like their historical forerunners,152 todays conceptions of separation-of-functions and balance-of-power are inappropriately muddled together. As this Part demonstrates, the two conceptions are conflated or, if not conflated, treated as if they obviously relate to one another. But, as this Part also demonstrates, this is a grave mistake: they are distinct conceptions, their relationship to one another is not obvious, and, in some respects, they are in tension. Not surprisingly, then, efforts to conceptually connect the two ideas prove fruitless. And the two ideas suggest different, even irreconcilable, doctrinal concerns that should animate courts as they consider separation of powers questions. As this section will thus demonstrate, the consensus is attempting the impossible: subscribing simultaneously to these two distinct conceptions. 1. The Phenomenon: Conflated, or Complimentary, Conceptions

151 152

THE FEDERALIST NO. 51, at 289-90 (Rossiter ed. 1999). See Gwyn, supra note ___, at 3, 26.

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The two conceptions associated with the distinct meanings of power are often conflated or treated as obviously related. Consider some illustrations of this tendency. The Supreme Courts repeated invocation of separation of powers and checks and balances as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of another153 fails to identify the differences between functional separation and balance. Moreover, the reference collapses both strategies into one objective: safeguarding against encroachment or aggrandizement, in other words, balance. The same impression is provided by Justice Kennedys concurrence in the line-item veto case, where he wrote that Separation of powers helps to ensure the ability of each branch to be vigorous in asserting its proper authority. The device operates on a horizontal axis to secure a proper balance of legislative, executive, and judicial authority.154 Again, the system of separation of powers is equated with balance among the departments. Nor is this practice limited to the courts. One commentator fully equates functional separation with balance, arguing that the founding understanding of separation of powers was balance between the departments, secured through a division of power.155 Another commentator notes that preserving political liberty requires that the legislative and executive powers cannot be united in the same body.156 Here is a straightforward statement of the need to separate functions. Subsequently, the commentator observes that separation of powers must operate in such a manner as to preven[t] a situation in which one branch has acquired a level of power sufficient to allow it to subvert popular sovereignty and individual liberty.157 Does level of power mean, solely, the exercise of more than one function of government? It is not clear. The former quote refers to the need to separate powers and the latter quote refers to the need to balance powers, suggesting that they are the same thing. The relationship between the two meanings, in any event, is not made clear.

153 154 155 156 157

Buckley v. Valeo, 424 U.S. 1, 122 (1976); see supra note ___. New York v. United States, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring). Greene, supra note ___, at 138. Redish, supra note ___, at 105. Id. at 106.

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The Real Separation

Another set of commentators refers to our system of fragmented power and institutionalized competition.158 Fragmented power is a reference to the allocation of different functions to distinct institutions (separation-of-functions). Institutional competition is a reference to rivalries among the departments (balance-of-power). Although some relationship is implied, the commentators are not clear whether separation-of-functions creates that competition. If the two are related, how does separating functions create institutional competition? If fragmenting power and institutional competition are not related, how is institutionalized competition created and maintained and what role does that competition play? The authors appear to invoke both conceptions, but they, like others, fail to discuss the relationship between them. Consider a final example of a conflation of the two conceptions, drawn from the work of functionalist commentators. Recall that Peter Strauss argues that at the apex of government--among the President, Congress, and Supreme Court--there must be functional separation of power; that separation, however, is not necessary for the subordinate levels of government.159 According to Strauss, the text and context suggest that the primary constraint on Congressional design of administrative agencies is the need to perpetuate the tensions and the interactions among the three named heads of the Constitution.160 Such tension, Strauss maintains, can be achieved without resort to a thoroughgoing separation of functions. Strauss then identifies a set of requirements for administrative agencies that, he asserts, will guarantee that the tension between the departments will be maintained.161 Strauss move is creative, but it does something by-now familiar: it collapses separation-of-functions into tension, competition and resulting balance.162 The
158 159 160 161 162

Calabresi & Rhodes, supra note ___, at 1156. See discussion of Strauss, TAN ___-___ (Part I.B.2.). Strauss, Place of Agencies, supra note ___, at 597; id., at 597-604. See TAN ___-___ (Part I.B.2.).

Strauss does acknowledge that there is independent reason (that is, a reason distinct from the creation of tension, competition, and resulting balance) to separate functions, see Strauss, Place of Agencies, supra note ___, at 622. The rationale, however, is a due process idea--that in certain individualized proceedings, the adjudicator should be insulated from politics--that Strauss seems to limit

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approach--both for the actors at the apex and the subordinate levels of government-treats functional separation as a way of achieving balance through tension and competition. But there are reasons to separate functions that are unrelated to tension, competition and resulting balance among the departments.163 2. Possible Connections and Their Failure

Perhaps the two conceptions are muddled together or conflated because the connection between them is so obvious that it need not be explicitly stated. That is the impression one gathers from the literature. Writers imply that one leads to the other--in particular, that separation-of-functions leads to balance-of-power. To be clear, statements of the consensus rarely elaborate on the connections between the components of the system; what that literature offers instead are catch phrases that imply that the two are related. Attempting to furnish a connection between the conceptions, however, demolishes casual confidence about the connection between them. Consider the two ways the conceptions might relate to one another that are suggested by discussion of the consensus. First, it may be that the allocation of government functions to different departments creates the competition and tension that is a key ingredient in most versions of the balance-of-power conception.164 Second, allocating government functions to different departments, along with the checks like the veto and

to individualized proceedings. That, however, is too narrow an understanding of the independent reasons for separating functions. See TAN ___-___ (Part III.C.2.).
163 164

See TAN ___-___ (Part III.C.2.).

See TAN ___-___ (discussing the ways commentators conflate the two ideas); Calabresi & Rhodes, supra note ___, at 1156 (suggesting a relationship between the two conceptions by referring to fragmented power and institutionalized conflict); Strauss, Place of Agencies, supra note ___, at 578 (checks and balances approach, which Strauss ultimately defends, seeks to protect the citizens from the emergence of tyrannical government by establishing multiple heads of authority in government, which are then pitted one against another in a continuous struggle; the intent of that struggle is to deny to any one (or two) of them the capacity ever to consolidate all governmental authority in itself, while permitting the whole effectively to carry forward the work of government.)

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The Real Separation

impeachment powers, may yield balance among the departments.165 This latter view does not necessarily depend on the mechanisms of tension and competition to assure balance among the departments; on this view, functional separation, along with checks, just leads to balance. Consideration of each of the suggested connections reveals that the neither of these connections holds up. a. Functional Separation Creates Tension and Competition

Examine first the suggestion that functional separation will lead to competition and tension and, hence, balance among the departments. No reason is provided why functional dispersal of power is necessary to the creation and maintenance of tension and competition among the departments. Consider the following effort to fill in the details of the supposed causal relationship between the two ideas: Perhaps the dispersal of governmental powers among institutions creates a type of distinct institutional identity for each department, and, just as importantly, distinct constituencies for those institutions. The development of this type of institutional identity--an identity tied to the functional allocation of power given to that department--is what fosters the tension and competition among the departments. Those in a department would naturally identify with the distinctive identity of the department in which they work. Given the link between the institutions identity and the functional allocation of power, this would mean that those affiliated with the department would be partial to the way in which their own department makes decisions; and that partiality may extend to a disdain for other departments ways of making decisions. To select the most obvious of the examples to illustrate this point, consider the judicial department. The judicial department has a distinctive institutional identity and it is one that owes much to the assignment of a specific type of authority. Vesting judicial power in the Supreme Court and lower courts means that individuals with a particular set of skills comprise the important decision makers in the court system;
165

Martin Flaherty argues that this idea captures the founding understanding. See Flaherty, supra note ___. Others have made the same argument, although Flahertys is the most detailed and elaborately developed. See Farina, Statutory Interpretation, supra note ___, at 488-96; Greene, supra note ___, at 138-53. All of these works, in turn, rely heavily on the two admired histories of separation of powers, see Vile, supra note ___, and Gwyn, supra note ___, and the work of historians who have written more generally about the framing of the Constitution, see Wood, supra note ___; McDonald, supra note ___; and Rakove ___.

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and, individuals with that same set of credentials are among the court systems most important constituencies. Moreover, the way in which the judicial power is exercised-through cases or controversies--plays a role in creating a distinct institutional identity. Those associated with the judicial department will favor the modes of decision making of that department and may harbor some disdain for the decisionmaking of the executive and legislative departments. On this telling, functional allocation helps create a distinctive institutional identity, one that carries with it the prospect of tension and competition among the departments. That same type of distinctive institutional identity could likewise have implications for interest groups in a way that would foster competition. As a result of institutional identities that arise from functional power dispersal, some interest groups would be more influential or effective in particular spheres of government. Consider again the best example: the vesting of judicial power in the Supreme Court and lower federal courts. This functional allocation means that attorneys have a unique relationship with the judicial department. That relationship is complicated, of course, but at a minimum one would expect that lawyers, or those who represent them, will have a natural interest in seeing the judicial department have a certain amount of authority, and in defending its prerogatives if they are threatened by other departments. On this understanding, separating functions is an important ingredient in generating tension and competition. But if this all sounds speculative, it is. Distinct institutional identities that arise from the allocation of government functions may be an ingredient in fostering tension and competition. Then again, one might question whether functional separation is necessary to the development of distinct institutional identities. One can easily imagine competition and tension among departments without any functional differentiation. Imagine three separate institutions all devoted to a functional task called lawmaking. All are assigned the same job of making law, but the three institutions have different structures: distinctive selection systems (elected on a local, state, or national basis; or, appointed), varying terms of office (2 years, 4 years, 6 years, life tenure), different internal structures, and--largely, it would seem, as a result of these differences--different institutional identities. One would expect there to be competition and tension among those institutions that would arise, not from the three entities performing different government functions, but as a result of the distinctive structures, and hence characters, of the institutions.

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The Real Separation

One might even put the argument more strongly: functional differentiation could actually work to dilute tension and competition among governmental institutions. As compared to two institutions engaged in the same function, institutions that are assigned different tasks might be less competitive with one another--with different tasks, each would have an independent sphere of competence. Imagine a regime where functional differentiation among governmental institutions is quite sharp; that sharp differentiation might facilitate cooperation, not competition, among institutions and deference between and among them based on differential levels of expertise. The insight is simply that it is natural to be most competitive with those who perform the same function, and, as a relative matter, less competitive with those who perform different tasks. The worlds fastest runner is not as competitive with the worlds fastest high jumper as he is with the worlds second-fastest runner. b. Functional Separation Leads to Balance

Consider now the second possible connection between the two conceptions. On the second view, functional dispersal of governmental authority--along with the limited Presidential veto, advice and consent, impeachment powers--yields balance. The view is appealing. To claim that it is the separation of functions that yields a balance among the departments of government is to establish a benchmark (proper allocation of those governmental functions) against which courts might conceivably determine whether the objectives of the doctrine have been achieved. In establishing a benchmark this view escapes the difficulties associated with the more free-floating objective of balance through institutional competition in the usual versions of the balance-of-power conception. The difficulty with this understanding, however, is that it does not specify what is meant by balance. The dispersal of governmental functions--along with the defensive or protective powers such as the limited veto, advise and consent, and impeachment powers--mysteriously leads to balance, but the assumptions under which that balance occurs are obscure, or, to say the same thing differently, what constitutes balance is unstated. Surfacing what must be a prime assumption under which this understanding operates, however, undermines confidence in the understanding. To posit that the dispersal of functions will lead to a balance of governmental power must assume that the three powers are roughly equivalent in strength. The assumption must be that dispersing the functions (and arming each institution with limited ability to defend itself) will lead to a balance in political power among the departments of

Draft government.

51

At worst, this premise seems fanciful. It is simply not plausible to think of legislative power, on the one hand, and executive and judicial power, on the other, as even roughly equivalent powers. In the domestic sphere anyway, the legislative power must be considered the dominant power--dominant in the relative sense that the executive and judicial powers can be said to be subordinate to it. That is because the legislature has the authority to define the general norms governing the behavior of those outside the legislature and its policy determinations are authoritative, except for that rare case where a court deems the legislatures choice unconstitutional. The executives role in the implementation of statutes, and the judiciarys role in the adjudication of disputes arising under statutes, are subordinate to that of the legislature: both entities, in exercising their tasks, are to discern and adhere to the determinations made by Congress. Any student of executive and judicial decisionmaking, at least a post-realist student of such decision-making, knows that there is much play in the joints when a decision maker is engaged in the task of implementing the law or interpreting the law. And the executive power includes the Commander-inChief power and special powers in defense and foreign affairs and times of emergency; the federal judiciary, too, has the power of judicial review. Even with these caveats and limitations in mind, in the domestic sphere, the legislative power must be considered the dominant power in the sense that implementation of the law and adjudication of disputes arising under the law involve an effort by the executors and the interpreters to discern and effectuate Congressional will. Even if this strong version of the critique is not accepted, the connection between separation-of-functions and balance-of-power needs much more elaboration. The meaning attributed to balance is unstated; and the method by which we might compare the strength of apples and oranges like executive, legislative, and judicial power--and pronounce them `balanced-- is obscure.

3.

The (Predictable) Doctrinal Impossibility

Not only is it difficult to reconcile the two conceptions abstractly, the two conceptions suggest different doctrinal concerns that should animate courts when they examine separation of powers cases. This is no accident. As we just learned, attempting to merge the distinct conceptions into a coherent set of ideas is a fruitless

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The Real Separation

enterprise. Articulating more concretely the set of doctrinal concerns prompted by each of the conceptions only furthers that impression. On the separation-of-functions understanding, courts should worry, first and foremost, about policing the boundaries among the three functions of government. Hence, the initial concern in any case should be: how can one characterize the power at issue? Once characterized, the function must be confined to the corresponding department, and exercised in that department according to a set of constraints. The latter steps in that analysis, however, are predicated on--and must be considered subordinate to--the answer to the primary question about the type of power being exercised by the government actor or institution. This hierarchy of doctrinal concerns flows immediately out of the separation-of-functions conception; the core danger to be avoided -- the very definition of tyranny, so goes the phrasing- -- is the exercise of more than one of the government functions by a single department of government. By contrast, the balance-of-power conception suggests a different set of doctrinal concerns. Courts would clearly invalidate any efforts to strip the checks-the limited Presidential veto, the advise and consent power, the impeachment power-that one department has over another. Those formal means permit one department to protect itself and prevent excesses by the other departments. But another set of concerns would also animate courts: identifying and invalidating arrangements that undermine the competition and tension among the departments of government. It is that tension and competition that creates the incentive for actors in the departments to use the formal checks in the appropriate way. Hence, courts adhering to the balance-of-power conception should be particularly skeptical of institutional arrangements that would undermine competition and tension among the departments, or, to put the point differently, that might facilitate collusion among the departments. Consider a prominent set of questions in separation of powers law with these descriptions in mind. A recurrent question is how the Appointments Clause of Article II should be interpreted. That clause grants the President the power by and with the Advice and Consent of the Senate to appoint . . . Officers of the United States.166 A variety of questions have arisen regarding this Clause: the permissibility of Congressional limitations on the Presidents ability to remove, at-will, those at the

166

U.S. CONST. art. II, 2, cl. 2.

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helm of certain agencies167; the permissibility of direct Congressional participation in the appointment168 or removal169 of government officials that, for example, administer the campaign finance laws or play a role in the Gramm-Rudman-Hollings deficit reduction statute; and, finally, the permissibility of an independent counsel located in the executive branch, where the Presidents ability to appoint and remove that prosecutor is circumscribed by statute.170 Adherents of the two conceptions should have quite different approaches to these cases. First, consider the balance-of-power conception. On the balance-ofpower conception, inter-institutional competition and tension are critical ingredients. Advocates, however, fail to specify how the system of separated powers actually fosters and maintains that competition, and, hence, it is difficult to discern what sorts of arrangements would undermine tension and competition.171 But among the arrangements that would seem to thwart competition and tension--and potentially permit or even promote interdepartmental collusion--would be arrangements that weaken the allegiance individuals would otherwise owe to the department in which they are located. Diminishing loyalty to a single department would dilute the interest that the officer might otherwise possess to protect the prerogatives of the department in which she is located and to resist the efforts by actors in other departments to expand their spheres of influence. On this understanding, then, those who subscribe to the balance-of-power conception should be wary of Congressional efforts to weaken the allegiance that an officer would owe to a single department. Arrangements that would weaken the connection between an officer and the department in which she is located--such as insulating officers from Presidential control and supervision, either through methods like generally applicable appointments or removal restrictions or through direct methods such as Congressional involvement in appointment or removal of specific individuals--should thus be

Myers v. United States, 272 U.S. 52 (1926); Humphreys Executor v. United States, 295 U.S. 602 (1935).
168 169 170 171

167

Buckley v. Valeo, 424 U.S. 1 (1976). Bowsher v. Synar, 478 U.S. 714 (1986). Morrison v. Olson, 487 U.S. 654 (1988). See TAN ___-___ (Part III.A.1.b.).

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invalidated on the balance-of-power conception.172 Adherents of the separation-of-functions conception, on the other hand, should not be as concerned about efforts to insulate government officers from Presidential supervision and control. To be more precise, adherents of the separationof-functions conception should be, chiefly, concerned whether the relevant official or institution is exercising executive power.173 If the officer is exercising something more than executive power--is, rather, exercising a blend of legislative and executive powers--then the central concern of the separation-of-functions conception is implicated. The point is a simple one; on the separation-of-functions conception, the objective of separation of powers it to assure (subject to the few textual exceptions contained in the Constitution) that governmental functions are exercised in separate departments, and thus the first question about a contested institutional arrangement must be about the type of power exercised. Consider an example that illustrates this claim about the concern of the separation-of-functions conception: the permissibility of Congressional limitations on the ability of the President to remove, at-will, members of the Federal Trade Commission.174 Certainly, the President has an argument--though not necessarily a dispositive one--that, if the FTC is exercising executive powers, then the President

For a different argument, one that is based on a re-reading of Madisons famous THE FEDERALIST NO. 51, that similarly emphasizes the need to foster allegiance between an individual and the department in which she is located, see Nourse, supra note ___. To those schooled in the voluminous literature on the Appointments Clause cases, this analysis should sound a bit odd. See TAN ___-___ (Part I.B.). That is because separation of powers formalists are more associated with support for the separation-of-functions conception; yet, they are the most devoted to the notion that there is a hierarchically organized, unitary executive. See, e.g., Lawson, The Rise and Rise, supra note ___, at 1241-46; Calabresi & Rhodes, supra note ___, at 1186-1208; Currie, supra note ___, at 31-36; Miller, supra note ___, at 96-97; Liberman, supra note ___, at 352-58; Calabresi & Prakash, supra note ___, at 663. At the same time, functionalist commentators, and others who emphasize balance among the departments, stress the balance-of-power conception. Yet it is that group of scholars that defends Congress ability to insulate certain executive department officers from atwill Presidential removal. See Strauss, Place of Agencies, supra note ___, at 609-616; see also Flaherty, supra note ___, at 1835-36; Lessig & Sunstein, supra note ___, at 106-110; Greene, supra note ___, at 171-77.
174 173

172

Humphreys Executor v. United States, 295 U.S. 602 (1935).

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must have the ability to remove, at-will, Commissioners of the FTC.175 But, if the Commissioners are not exercising solely executive power, on what basis could the President assert that he has the right to remove FTC Commissioners at-will? On the separation-of-function conception, the problem with the FTC is that it appears to exercise each of the three governmental functions; Congress cannot constitutionally authorize an entity to exercise such a combination of functions. The removal restrictions, in light of that prohibition, seem beside the point. This same sort of analysis applies to the constitutionality of the appointment and/or removal of the Independent Counsel at issue in Morrison v. Olson,176 the Comptroller General at issue in Bowsher,177 and the Federal Election Commission members at issue in Buckley

As I suggest in the text, the Presidents ability to fire an officer at-will does not inexorably follow from a determination that the power exercised is executive (assuming for the moment, albeit heroically, that we could develop a definition of executive power). Resisting cases like Humphreys Executor and Morrison v. Olson, formalist commentators assert--usually without an elaborate defense of the connection--that an officer exercising executive power must be removable at-will by the President. See, e.g., Liberman, supra note ___, at 353 (The grant of executive power to the President must mean either that he can exercise any law-executing authority himself or direct how it is exercised.); Calabresi & Prakash, supra note ___, at 663 ([S]ince the Presidents grant of `the executive power is exclusive, Congress may not create other entities independent of the President and let them exercise his `executive Power.); see also id., at 570-599. The logic behind the connection between the two is rarely spelled out. But the connection between these two is not automatic. It is a dramatic expansion of executive power to permit, as we do, the President to delegate, virtually without limit, his executive power to an agent. That expansion might also warrant some limitations on the Presidents ability to remove the officers exercising the delegated power. There are also many limitations on the ability of the President to remove those in the executive branch. Formalist commentators, I expect, would accept many of them as permissible. There exists an elaborate web of laws and regulations associated with the civil service system; those laws limit patronage and require for-cause removal of some employees. See Mashaw, Merrill & Shane, supra note ___, at 182-88. Even with respect to officers of the United States--those who perfor[m] a significant governmental duty exercised pursuant to the public law, Buckley v. Valeo, 424 U.S. 1, 122 (1976)-there are restrictions on Presidential removal that I would expect formalist commentators to accept. Consider two: the President may not fire an officer based on constitutionally impermissible factors (race, religion, sex); the President may not fire an officer because the President disagrees with the judgment the officer rendered in an individualized proceeding where the dictates of procedural due process constrain government decisionmaking. If formalists would accept either of these limitations on the Presidents ability to remove officers, it means that even formalists dont adhere to the view that a determination that an officer is exercising executive power means that the President must be able to terminate her at-will.
176 177

175

487 U.S. 654 (1988). 478 U.S. 714 (1986).

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v. Valeo.178 On the separation-of-functions conception, the primary question in each of these cases should be whether there is an impermissible blending of government functions. If a court determines that any of these entities are exercising exclusively executive functions, then, and only then, should the court reach the independent question whether the President must be able to remove at-will the officials exercising that power. Nor is it simple to argue that adherents of the different conceptions would pose different questions, engage in different reasoning, and, still, fortuitously, usually reach the same outcomes. Such a happy coincidence would make it possible to adhere to the two conceptions at once. If that were the situation across a range of cases, perhaps we could live with the dissonance caused by the different questions asked by the two conceptions. No such account, however, holds up in a range of important cases. Consider the constitutionality of limitations on the Presidents ability to appoint and remove commissioners of the FTC. The adherent of the balance-ofpower conception would argue that the restrictions are unconstitutional because they dilute the allegiance that the members of the FTC would otherwise owe to the executive department. And the devotee of the separation-of-functions conception would argue that the an executive officer cannot preside over an entity that blends the three governmental functions in one institution. So far so good. The problem is this: if the allegiance of the FTC Commissioners is not diminished, if the Commissioners can be removed at-will, then the balance-of-power conception and the separation-of-functions conceptions diverge. The balance-ofpower conception would be satisfied because, with at-will removal, the loyalty lines running between the Commissioners and the President are sufficiently strong. On the other hand, the adherent of the separation-of-functions conception has made absolutely no progress: an FTC Commissioner who is appointed and removed by the President at-will would still supervise the exercise of legislative, executive, and judicial power. Another example makes this point and illustrates the salience of this divergence in approach. Consider the constitutionality of the of the United States Department of Agriculture. The Department is headed by a Secretary who serves at

178

424 U.S. 1 (1976).

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the pleasure of the President.179 The balance-of-power conception is not concerned about the Department because the allegiance the Secretary owes to the executive is not diminished through removal restrictions. By contrast, for the adherent of the separation-of-functions conception, the Department would seem to be unconstitutional: the Department engages in rulemaking, enforcement, and adjudication.180 It thus represents the worst case scenario, that is, the accumulation of all governmental functions in a single institution. No at-will employment relationship between the Secretary and the President can cure that defect; that defect is the core eventuality the separation-of-functions conception seeks to protect against. It is, in short, no simple matter to apply the distinctive questions in cases and reach-even on different reasoning--the same outcomes. This discussion of the approaches that should be taken under the balance-ofpower conception or the separation-of-functions conception is not intended to suggest that these are the only lenses through which to consider the question of the permissibility of insulating executive officers from at-will removal by the President. There is another value, usually called accountability, that is invoked when the question concerns the organization of the executive department.181 Commentators uniformly

179 180

7 U.S.C. 2202.

See, e.g., Rules of Practice Governing Formal Adjudication Proceeding Instituted by the Secretary Under Various Statutes, 7 C.F.R. SUBPART H, PART 1 (1999). The Department of Agriculture is authorized to engage in rulemaking, enforcement, and adjudication under a variety of statutes, including the Animal Welfare Act, 7 U.S.C. 2131 et. seq.; Perishable Agricultural Commodities Act, 7 U.S.C. 499 et. seq.; Packers and Stockyards Act, 7 U.S.C. 181 et. seq. Accountability is not generally among the meta-objectives--like those elements of the consensus position that I have identified--that adherents of the consensus position ascribe to the overall system of separation of powers. Rather, its role is usually as a subordinate objective related in particular to the assignment of, as those who favor the unitary executive position would emphasize, the executive power to single President. This is not to say, however, that the accountability value is unrelated to these larger meta-objectives. See Calabresi, Some Normative Arguments, supra note ___, at 45-48. For a sampling of the discussion of the accountability value, see, e.g., Lessig and Sunstein, supra note ___, at 94; Flaherty, supra note ___, at 1740 (asserting that accountability is the dominant constitutional value of formalists who are concerned with the organization of the executive department); Calabresi, Some Normative Arguments, supra note ___, at 42-45, 58-70; Harold H. Bruff, On the Constitutional Status of the Administrative Agencies, 36 AM. U. L.REV. 491, 506-514 (1987).
181

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praise this value. Unfortunately, it is not exactly clear what they are praising.182 Sometimes, those who value accountability focus on the relationship between a governmental official and her superior. When accountability is invoked in this way, the argument is that the President must be authorized to fire an official exercising policy making authority in the executive department; it is through that form of supervision, so the argument goes, that those who exercise governmental authority can be monitored and controlled.183 At other times, accountability refers to a more general concern about the relationship between the government and citizens. The idea when this version is invoked is that there must be a hierarchically organized executive department--one where the President can fire at-will any policy making official--so that there will be clear responsibility for governmental actions. If citizens know who to praise for accomplishment and who to blame for failure, they can properly monitor the exercise of governmental power.184 Many have observed that accountability, as presently conceptualized, is a troubled concept.185 For our purposes, however, it is only important to observe that
Peter Shane, Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking, 48 ARK. L. REV. 161, 196 (1995). (Unfortunately, it is a striking feature of most of the `unitary executive literature that it gives little sustained attention to what `accountability means.) There is a meaning of accountability that has historically been associated with separated powers. W.B. Gwyn describes this accountability version of separation of powers and it is quite different from what contemporary writers mean when they praise accountability in the executive. This version focused on the legislatures power to call to account the non-legislative personnel of the government should they misuse their power. Gwyn, supra note ___, at 16; see id., at 16-17, and 42. That idea of accountability is embodied in the impeachment powers vested in Congress. See Calabresi, Some Normative Arguments, supra note ___, at 58, 81-86; Shane, supra note ___, at 196. See Bruff, supra note ___, at 506-07; Sargentich, Limits of the Parliamentary Critique, supra note ___, at 718 (observing that accountability argument, which Sargentich ultimately criticizes, rests on the premise that accountability requires unity in government so that the people will know whom to hold responsible for success or failure); Lessig & Sunstein, supra note ___, at 98; Calabresi, Some Normative Arguments, supra note ___, at 42-45. Shane, supra note ___; Farina, Consent of the Governed, supra note ___. Cf. Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, U. OF CHI. L.REV. (forthcoming). As these commentators argue, accountability rests on unproved empirical assumptions and is weakly conceptually developed. See id., at 14; Shane, supra note ___, at 197-209.
185 184 183 182

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accountability does not make the two conceptions studied here compatible with one another, nor is accountability a value that stands on its own--and could thus replace the two conceptions studied here--as an understanding of separation of powers. One could be a fan of accountability in the organization of the executive department and believe that view requires the President to be able to fire any officer at-will. That view seems most consistent with the balance-of-power conception described here. This view, however, implies nothing about support for the separation-of-functions conception. One might support a hierarchically organized executive department and not be committed to separation-of-functions; or, one might support a hierarchical executive department and independently value separation-of-functions. The two ideas do not have to travel together. Nor can accountability, by itself, provide a complete account of separation of powers. To place a premium on accountability is not to say anything about the functional dispersal of government authority, nor does it necessarily say anything about balance among different branches. Imagine a single elected head of state that presides over an executive department that exercises all governmental power. There is no separation of functions; there are no separate departments to balance against one another. Yet, there is full accountability. C. The Conceptual Consequence of the Muddle

The previous section demonstrated that the consensus contains two conceptions of separation of powers that are housed uneasily together. Muddling the two has meant that we have failed even to notice, much less to evaluate, the two distinct substantive conceptions of separation of powers. This section will identify the profound conceptual consequences of the confused and conflicted consensus. Those consequences include a general failure to articulate basic elements of the objectives, means, and mechanisms of separation of powers; confusion about the separation-offunctions conception; and a lack of development of the balance-of-power conception. 1. Vacuous Defenses of Separation of Powers

The muddling of the distinct ideas helps explain, on a general level, the unsatisfactory state of separation of powers case law and commentary. That case law, and to a lesser extent the commentary, is peppered with airy phrases that tell us little.

Nor is it clear that whatever commentators mean when they invoke this value can be achieved through the creation of a strong executive, see Farina, Consent of the Governed, supra note ___.

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Consider a few examples. There is Justice Jacksons famous statement, quoted repeatedly in Supreme Court cases: While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It also enjoins upon its branches separateness but interdependence, autonomy but reciprocity.186 Likewise, recall the two phrases associated here with the distinct conceptions, also cited repeatedly in separation of powers cases. There is, on the one hand, the political truth . . . stamped with the authority of . . . enlightened patrons of liberty,187 namely, that the accumulation of all powers legislative, executive and judiciary in the same hands . . . . may be justly pronounced the very definition of tyranny.188 And, there is, on the other, the opaque statement examined earlier: the system of separated powers and checks and balances acts as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of another.189 For their part, commentators muddle the two conceptions together and are hence not much more helpful than the courts.190 Readers of these phrases do not know what they mean, nor do the phrases seem to do any work in resolving particular cases. There is, in short, an astonishing lack of ability to identify in any concrete way--that is, beyond avoiding tyranny--the objectives of the system, the components of the system, or the way in which that system works to achieve its objectives. It is perhaps the nebulous nature of the explanations of our system that prompted one astute observer to remark: The principle of [separation of powers] has been effusively praised and on occasion vigorously enforced. But just what is it?191

Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring); also cited in United States v. Nixon, 418 U.S. 683, 707 (1974); Buckley v. Valeo, 424 U.S. 1, 122 (1976); Immigration and Naturalization Servs. v. Chadha, 462 U.S. 919, 963 (1983); Bowsher v. Synar, 478 U.S. 714, 760 (1986) (White, J., dissenting); Mistretta v. United States, 488 U.S. 361, 381 (1989); Morrison v. Olson, 487 U.S. 654, 694 (1988).
187

186

THE FEDERALIST NO. 47, at 244 (Rossiter ed 1999.).

Id.; see also footnote ___, supra (observing that some version of this phrase is invoked in nearly every modern separation of powers opinion). Buckley v. Valeo, 424 U.S. 1, 122 (1976); see also footnote ___, supra (observing that this phrase, too, is invoked in nearly every modern separation of powers opinion).
190 191 189

188

See TAN ___-___ (Part III.B.1.). Merrill, supra note ___, at 225 (footnotes omitted).

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But the conceptual difficulties of the current consensus go beyond a general lack of precision in separation of powers talk. As the next two parts demonstrate, the muddle has meant that the reasons for, and critical thinking about, each of the conceptions remains deficient. To preview those deficiencies, the reasons for institutional separation of government functions are rarely provided; when reasons are offered, they either do not map on to a command to institutionally separate functions, or they collapse separation-of-functions entirely into a means of balance and checking. As for the balance-of-power conception, the meaning of balance among functionallydifferentiated departments is obscure; and, the mechanisms by which tension and competition are created and maintained, much less threatened, are not identified. 2. Confusion about Separation-of-Functions

Those who extol the importance of separating government functions rarely explain what, exactly, is wrong or dangerous about a combination of functions. Adherents usually just repeat that Montesquieu-Jefferson-Madison phrase (combination of functions is the very definition of tyranny) to supply a reason for separating functions.192 Functional separation, at the institutional level, is a way to prevent tyranny, but how so? The most often-stated goal is to achieve the dispersal of power, to avoid, as the courts and commentators say, the concentration of political power.193 Repeated use of that ambiguous word, power, sheds little light. There is this obvious point:
See e.g., Lawson, supra note ___, at 1248 (first observing that The constitutional separation of powers is a means to safeguard the liberty of the people and then invoking Madisons THE FEDERALIST NO. 47); Greene, supra note ___, at 124; Steven G. Calabresi and Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel, 79 CORNELL L. REV. 1045, 1117-18 (1994) (observing that the Framers approached the crafting of a government with the assumption that the accumulation of too much power in any one political institution was a sure recipe for tyranny); see also TAN ___-___ (Part III.B.1.). For a commentator who does identify with some precision the reasons for functional separation, see John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretation of Agency Rules, 96 COLUMB. L. REV. 612, 645-48 (1996). See, e.g., Redish, supra note ___, at 99 (separation of powers is designed to reduce the obvious dangers that flow from the concentration of political power); id. at 105 (No critic has adequately demonstrated either that the fears of undue concentrations of political power that caused the Framers to impose separation of powers are unjustified, or that separation of powers is not an important means of deterring those concentrations.); id. ( After all, no one can predict with certainty that, but for the formal separation of branch power, the nation would be likely to sink into a state of tyranny.)
193 192

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separating functions is not necessary to disperse power. That is, power can be dispersed without insisting that there are three different types of governmental power that must be allocated to three different institutions. Consider the most obvious examples: bicameral or multi-cameral legislatures. Both are examples of power dispersal that do not rely on functional distinction. In our system, both the House and the Senate must concur in legislation before it is presented to the President; in that way, power is dispersed, but, still, each body exercises legislative powers. Federalism provides another example: that is power dispersal, largely (though not exclusively) without functional differentiation in tasks. So too with court systems in which all levels of a hierarchical system are exercising judicial power, and, yet, that judicial power is dispersed among them. Or, consider a multi-member court: each judge exercises judicial power, but, again, there is power dispersal because it takes a majority or plurality to control the outcome in a given case. Examine one final example: vesting the power to execute federal law in the hands of executive officers-as opposed to vesting all such power in the President. This is a way of dispersing executive power among different parts of the executive department. Hence, empowering the Attorney General (rather than the President himself) to make a decision under a statute--say, whether to waive deportation of an individual based on a set of statutorily specified factors--is a way of dispersing executive power. A corresponding point can be made about the phrase concentration of power. Just as there are different ways of dispersing power, there are different ways to concentrate it. One way of concentrating power would be to limit the number of entities that exercise a particular task. As compared to a multi-cameral legislature, bicameral or unicameral legislatures are concentrations of power because fewer entities exercise legislative power. It would also represent a concentration of power-in the hands of the President--to halt the practice of vesting authority in officers of the executive branch. There are thus ways of dispersing power that do not require functional separation and ways of concentrating power that do not depend on the merger of functions. On the separation-of-functions conception, however, it is crucial to prevent one institution from exercising more than one type of function. What distinctive explanation can be offered for a command to institutionally separate governmental functions? A familiar reason to separate functions can be ruled out as the primary

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justification for the separation-of-functions conception, at least today. One reason to separate functions is to encourage specialization in the performance of those functions, thereby promoting efficiency. Just as we might, for efficiency reasons, assign different tasks to groups of workers who are engaged in the process of building a car so that each group could master its own assigned task, rather than every worker having to master the many different tasks, we might parcel out governmental functions to different institutions. This efficiency justification was historically thought to be one of the reasons to separate functions.194 But, among todays adherents of the consensus position, fostering a more efficient government is certainly not the primary justification for separating governmental functions. In fact, one of the dominant modern criticisms of separation of functions relates to its inefficiency195; defenders of the system, in response, largely concede the point and turn it around--they cast inefficiency as a virtue, not a vice, of the system.196 Separating functions is designed to do something to protect the citizenry from the government (and not simply to protect it from waste). It is aimed at preventing governmental over-reaching (or, to invoke that over-used word, tyranny). Another justification for institutionally separating functions can be called the coordination thesis. The idea is this: separating functions is necessary so that three different institutions agree before the government can injure an individual. In one form or another, this thesis frequently appears as a defense of separating functions.197
194

Paul R. Verkuil, Separation of Powers, the Rule of Law and the Idea of Independence, 30 WILLIAM & MARY L. REV. 301, 303 (1989) (In the earliest formulations [of separation of powers], powers of government were separated for efficiency purposes.); Choper, supra note ___, at 264-65; Gwyn, supra note ___, at 32-34. For a sampling, see SEPARATION OF POWERS--DOES IT STILL WORK? (1986) (Robert A. Goldwin and Art Kaufman, eds.). Verkuil, supra note ___, at 303-04 (describing counterefficiency principle as a dominating principle of modern conceptions of separation of powers); Choper, supra note ___, at 264-65. For judicial rejection of the efficiency thesis, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 613-14 (1952) (concurring opinion). See, e.g., Redish, supra note ___, at 130; see also New York v. United States, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring) (The idea and promise were that when the people delegate some degree of control to a remote authority, one branch of government ought not possess the power to shape their destiny without a sufficient check from the other two. In this vision, liberty demands limits on the ability of any one branch to influence basic political decisions.)
197 196 195

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David Currie offers a resonant version: The distribution of these powers among three separate branches serves as a powerful check against arbitrary action, for it means that three distinct bodies must concur before the individual is effectively deprived of liberty or property: Congress must pass a law, the President must seek to enforce it, and the courts must find a violation.198 This thesis is worthy of extended analysis because it is a common--even pervasive--reason given for institutional separation of government functions. Sometimes, this defense of separating functions is presented (like Curries formulation) as about preventing arbitrary government action199; other times, while the idea is the same, it is unveiled in different dress--separated functions as a way to check and balance the exercise of power,200 to limit factions, 201 or to promote deliberation.202 The coordination thesis does not work as a justification for institutional separation of functions. On one reading, the thesis is just a variation on the argument that government power should be dispersed. The insight is that a single institution

198 199

Currie, supra note ___, at 19.

See Redish, supra note ___, at 130 ([B]y requiring that those who make the laws cannot be charged with the responsibility for executing them, separation of powers does, of course, preserve the independence of both decision makers. However, in doing so separation of powers simultaneously prevents the concentration of political power in one governmental organ and enables one branch to check the other.); see also Larry Kramer, The Constitution as Architecture: A Charette, 65 Ind. L. J. 283, 287 (1990) (Lawmaking is a complicated, often drawn-out process that begins with the enactment of a general policy and ends with the translation of this policy into a final determinations of consequences for particular individuals. The ability to monopolize this process--to decide policy and to control its implementation in particular cases--would seriously threaten individual rights and liberty. The separation of powers lessens this threat by dispersing government authority: it divides the lawmaking process into three distinct phases and requires affirmation from a separate entity in each phase. No single governmental body can gather too much power if successful completion of the process requires the participation of the two other, independent bodies.); Manning, supra note ___, at 645-646 (When the powers are separate, multiple levels of government must be corrupt in order to impose such untoward [-enactment and implementation of tyrannical laws--] results.). See Redish, supra note ___, at 130; Greene, supra note ___, at 138; Gwyn, supra note ___, at 55, 85-86, 94.
201 200

Miller, Rights and Structure, supra note ___, at 199; Lessig & Sunstein, supra note ___, at

106-110.
202

Lessig & Sunstein, supra note ___, at 106-110.

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should not control all governmental power; to avoid that, the system provides three different authoritative decision-makers. As just demonstrated, however, dispersing political power does not require that power be classified into three categories and assigned to separate institutions. To disperse power, there must be more than one authoritative decision maker, but functional separation is not necessary. Arbitrary action can guarded against by requiring that three institutions--all engaged in the same function called lawmaking--concur before liberty or property is taken from an individual. It might be logical or convenient to say those institutions are exercising different types of power. But, classification of government power into three categories and dispersal of it among different institutions does not play a distinctive role on this understanding. On another reading, however, the coordination thesis envisions the separate exercise of government functions itself as crucial to the prevention of arbitrary action. This version suggests that it is the allocation of distinct powers to separate institutions that provides the mechanism for preventing arbitrary action. It is not enough, then, to have three policy-makers who must concur before liberty or property is deprived. Instead, to prevent arbitrary action, there must be multiple decision-makers endowed with distinctive government powers--making law, enforcing law, interpreting law. On this view, the exercise of the executive power checks the exercise of the legislative power; and the exercise of the judicial power checks both the executive and the legislative power. To illustrate, Congress passes a law that is arbitrary; the executive may choose not to enforce the law based on that ground; and, if the executive does choose to enforce the arbitrary law, the judicial department may refuse to vindicate the enforcement action. It is the separate exercise of the distinct functions--the executives decision to enforce, the judiciarys decision whether to vindicate the enforcement action--assigned to the departments that prevents the arbitrary law from having effect on a citizen. This version of thesis fares no better. Notice, first, that this version ignores a large part of the universe of the enforcement of federal law. There are many ways citizens rights and obligations are affected that do not involve the concurrence of each department in the way the coordination thesis envisions--that is, passage of a law, executive decision to enforce, and judicial adjudication of the enforcement action. First, although there is controversy about and occasional judicial resistance to preclusion of judicial review of agency action, Congress can and does preclude

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review of certain executive actions.203 In addition, there are a variety of common law, statutory, and constitutional doctrines that can operate to delay and sometimes prevent judicial consideration of the legality of certain government actions; those doctrines include finality, ripeness, exhaustion, and standing.204 In these examples, the courts are absent from a supposed three-branch coordination scheme. But it is not just the courts that can be excluded; Congress too can be excluded from coordination. The executive department controls the fates of large numbers of employees and its decisions about whether to hire or fire those employees do not involve Congress. Nor does Congress play a role in the exercise of prosecutorial discretion. The executive decides how to enforce most statutes. And, on some understandings of the scope of executive power, Congress could not constitutionally control the exercise of prosecutorial discretion.205 The best illustration of why the coordination thesis is off-the-mark, however, is the absence of the executive when private individuals enforce federal law.206 Private parties are authorized to enforce a variety of federal laws: for example, employment discrimination laws,207 securities laws,208 and environmental laws.209 Proceeding under

See Administrative Procedure Act, 701(a)(1) (chapter of APA authorizing review of administrative actions does not apply if statutes preclude judicial review); Regulatory Flexibility Act, 5 U.S.C. 601 et. seq. (barring review of agency compliance with the analysis mandated by the Act). For a general discussion of federal courts treatment of preclusion, including the cases in which the courts have found review to be precluded--either because of express language contained in the statute or, rarely, because preclusion is implied by the statutory scheme--see Jerry L. Mashaw, Richard A. Merrill, Peter M. Shane, ADMINISTRATIVE LAW: THE AMERICAN PUBLIC LAW SYSTEM 836-45 (4th ed. 1998).
204

203

See Mashaw, Merrill, & Shane, supra note ___, at 901-948.

See TAN ___-___ (discussing view that prosecutorial discretion derives from the constitution). See generally, Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 HARV. L.REV. 1193 (1982); Cass R. Sunstein, Section 1983 and the Private Enforcement of Federal Law, 49 U. CHI. L.REV. 394 (1982).
207 206

205

See 42 U.S.C. 2000e et. seq.

See, e.g., 15 U.S.C. 77k, 771, 78i (express authorization of private causes of action); Securities and Exchange Act 10b, 15 U.S.C. 78j (implied private cause of action); see also Joseph Grundfest, Disimplying Private Rights of Action Under the Federal Securities Laws: The Commissions

208

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these laws, private parties bring suit, and the judgments in those suits determine the rights and duties of defendants. This phenomenon means that the executive department is sometimes absent from the process of the enforcement of federal law. The implication of this observation for the coordination thesis should be obvious. The thesis misdescribes reality in a significant number of cases: where actions are brought to enforce federal law, and it is not the executive bringing those actions, the executive does not constitute a check on arbitrary legislative action. There is, to be sure, a tangle of legal rules that govern when and how federal law can be privately enforced. Those rules include: the doctrine, which has contracted, of implied private rights of action210; the limitations on private enforcement that flow from sovereign immunity when the defendant is a state211 or federal government actor ; 212 the potential constitutional limitations on so-called whistle blower or qui tam suits, in which a private party proceeds in the name of the government213; and the Article III case-orcontroversy requirements that sometimes prevent Congress from authorizing citizen

Authority, 107 HARV. L.REV. 961 (1994); Mary Siegel, The Interplay between the Implied Remedy Under Section 10(b) and the Express Cause of Action of the Federal Securities Laws, 62 B.U. L.REV. 385 (1982). See, e.g., Clean Air Act, 42 U.S.C. 7604; Clean Water Act, 33 U.S.C. 1365; see also Michael S. Greve, The Private Enforcement of Environmental Laws, 65 TULSA L.REV. 339 (1990). See Cannon v. Univ. of Chicago, 441 U.S. 677 (1979); see also Susan J. Stabile, The Role of Congressional Intent in Determining the Existence of Implied Rights of Action, 71 NOTRE DAME L.REV. 861 (1996). See, e.g., Kimel v. Fla. Bd. of Regents, 120 S.Ct. 631 (2000) (Congress cannot abrogate state sovereign immunity under 5 of the Fourteenth Amendment; as applied, state cannot be sued for alleged violation of the Age Discrimination in Employment Act); Alden v. Maine, 119 S.Ct. 2240 (1999) (Congress cannot abrogate state sovereign immunity in state court; state cannot be sued in state courts for alleged violation of the Fair Labor Standards Act); Seminole Tribe v. Fla., 517 U.S. 44 (1996) (Congress cannot, acting under the commerce power, abrogate state sovereign immunity of states). See, e.g., Administrative Procedure Act 702 (waiver of sovereign immunity for injunctive and declaratory relief); 28 U.S.C. 1346, 2674, 2680 (limited waiver of sovereign immunity for purposes of Federal Tort Claims Act). Evan Caminker, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341 (1989); Constitutionality of the Qui Tam Provisions of the False Claims Act, 13 OP. OFF. LEGAL COUNSEL 207 (1989).
213 212 211 210 209

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suits.214 Even so, these rules that sometimes limit private enforcement should not disguise the fact that enforcement of federal laws by private parties is stock-and-trade of the federal courts. There is no controversy about these suits when the statute expressly authorizes the suit, the plaintiff can point to a concrete injury and is not purporting to proceed on behalf of the government, and the defendant is not a government actor. A realist critique of the coordination thesis would go even further. The examples provided above include only the formal ways in which one department is eliminated from three-branch coordination. But another critique would emphasize the ways in which a single department, or two departments, can seriously injure an individual where there is no meaningful review by another department, even if review is formally available. For the best example, consider a prosecutors decision to indict an individual. There is a serious injury to the individual at the moment of the indictment itself; and this is so whether or not the individual is ultimately vindicated in the prosecution. As just observed, Congress does not participate in a coordination scheme with respect to prosecutorial discretion. As for court review of the exercises of prosecutorial discretion, it theoretically exists, but that review is under a standard so advantageous to the government as not to be any sort of real review.215 Consider, also, challenges under the Equal Protection Clause to social and economic legislation, which is reviewed by the courts under the rational basis test.216 Again, the standard is so deferential to the legislature as not to be review at all.217 This is not to say anything at all about the wisdom of these doctrines. It is only to say that the coordination thesis is a misdescription of both the formal rules and the meaning of those rules: it is simply not the case that each department of government determines whether an action is arbitrary before an individual suffers the effect of that action.
214

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

United States v. Armstrong, 517 U.S. 456, 463-465 (1996); Wayte v. United States, 470 U.S. 598 (1985); cf. Heckler v. Chaney, 470 U.S. 821 (1985) (agencys refusal to take enforcement action is presumptively nonreviewable).
216 217

215

Erwin Chemerinsky, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 9.2 (1997).

There are many cases that illustrate the point, but the classic ones include Railway Express Agency v. New York, 336 U.S. 106 (1949); Williamson v. Lee Optical, 348 U.S. 483 (1955); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981).

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There is a still deeper problem with the coordination thesis. Consider those cases where each department does have some formal role--the passage of legislation, its enforcement, and the trying of that enforcement action in a court. The claim that each department, in exercising its role, assesses the arbitrariness of the law implicated in the case, may capture an arm-chair sense of how the system really works. But there is something striking about this version of the coordination thesis: it departs radically from the orthodox understanding of the three functions of government, as well as the present legal rules arising out of that orthodox understanding. The thesis suggests that one department will, through the use of its assigned function, secondguess other departments on a constant basis. Arbitrary action is prevented, on this view, because there are three entities that have to agree, independently of one another, before an individual can be injured. But the claim that each department does and should look independently at every question that comes before it is wrong, both as a matter of theory and as a matter of practice. This reading of the coordination thesis transforms routine exercises of the executive and judicial function into feats of second-guessing, or checking, the function that has come before in time. But the occasions for interdepartmental checking are not that all-encompassing; they are, rather, sharply limited--the exercise of the Presidential veto, judicial review (at least today), the Senates confirmation powers, and Congress impeachment powers. Return to the earlier example to see the point: assuming that the hypothesized arbitrary law that Congress has enacted is a constitutional one, under the orthodox understanding of the three functions of government, it is in fact Congress that is to make the policy judgment. True, the executive enforces the law and the judiciary adjudicates disputes under the law. But, except for the cases where the law is unconstitutional, it is not the job of those exercising the executive or the judicial power to assess independently the wisdom of the Congressional choice (and the Presidential choice, given that the President either signed the bill, or suffered an override of his veto) reflected in the statute. Far from it. Those exercising executive and judicial power are--except, again, for the rare case of an unconstitutional law--to adhere to the policy judgment made by Congress. Another way of putting the point is that the coordination thesis rests on a notion of governmental functions always and everywhere checking each other. On this understanding, separating government functions collapses entirely into the balance-of-power idea. But, the occasions for independent assessment by one

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department of another are specific and circumscribed. The checking feature implemented through devices like a Presidential veto or Congressional impeachment is not supposed to be in play every time the executive decides whether and how to enforce a law Congress has passed, or every time the courts decide whether to vindicate a prosecution under a statute. To put the point simply: with respect to statutes that are constitutional, Congress does reign supreme and it can and (depending on ones view) does enact arbitrary laws that are enforced by executive officers and adjudicated by judges, and those actors are obliged to look to the statute for their instructions. Not only does the coordination thesis depart from the orthodox understanding of the three functions of government, it also departs from the practice that arises out of that understanding. Legal rules do not acknowledge an executive or judicial right to assess independently the wisdom of a legislative choice. As students of law in a post-realist period, of course, we know there is much room for discretion in the execution of the law, and adjudication of disputes under the law. And, there do seem to be little pockets of the coordination thesis. Consider in this regard the view--put forward most prominently by Justice Scalia in his dissent in Morrison v. Olson218--that the executives prosecutorial discretion emanates, not from pragmatic considerations, but from the Constitution itself.219 On this view, Congress could not pass a statute

487 U.S. 654, 705-08 (Scalia, J., dissenting); cf. United States v. Armstrong, 517 U.S. 456, 464 (1996); Heckler v. Chaney, 470 U.S. 821, 850 (1985). Id. This view has been put forward in a series of opinions authored by the Office of Legal Counsel in the U.S. Department of Justice. See Congressional Requests for Information from Inspectors General Concerning Open Criminal Investigations, 13 U.S. OP. OFF. OF LEGAL COUNSEL 77, 78 (1989) (The execution of the law is one of the functions that the Constitution makes the exclusive province of the executive branch. . . . In particular, criminal prosecution is an exclusively executive branch responsibility. Accordingly, neither the judicial nor legislative departments may directly interfere with the prosecutorial discretion of the executive branch by directing it to prosecute particular individuals.) (citations omitted); Response to Congressional Requests for Information Regarding Decisions Made under the Independent Counsel Act, 10 U.S. OP. OFF. OF LEGAL COUNSEL 68, 72 (1986) (same); Prosecution for Contempt of Congress of an Executive Branch Official who Has Asserted a Claim of Executive Privilege, 8 U.S. OP. OFF. OF LEGAL COUNSEL (1984) (same); Congressional Subpoenas of Department of Justice Investigative Files, 8 U.S. OP. OFF. OF LEGAL COUNSEL 252, 264 (1984) (Article II of the Constitution places the power to enforce the laws squarely in the Executive Branch of Government. . . . The discretion of the Attorney General in choosing whether to prosecute or not to prosecute, or to abandon a prosecution already started, is absolute . . . This discretion is required in all cases.) (quoting Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841 (1967)).
219

218

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restricting prosecutorial discretion, and this must be because executive power includes a constitutionally protected right to second-guess particular applications of statutes in the course of enforcing them.220 Still, however appealing it might be to assert that the executive checks legislative action when it decides whether and how to enforce a statute, and that a court likewise checks legislative and executive action when it decides whether to vindicate a prosecution, practice does not guarantee anything approximating that sort of second-guessing. Barring a colorable constitutional claim about the statute or its enforcement in a particular case, the executive (which, by definition, has either consented to the law or had a veto overridden) would never claim it was not enforcing a statute because the statute made the wrong choice; nor would a court claim its interpretation had nothing to do with the statute approved by Congress. And certainly no such understanding of the three functions would be cognizable in court if a citizen tried to assert a claim based on the coordination thesis. Again reserving the case of a colorable constitutional claim, a criminal defendant could not resist a government prosecution by arguing that the executive had an obligation to decide for itself--independently of the statute--the non-arbitrary choice in the circumstances of the case; nor could a defendant argue that, in interpreting a statute, a court is free to (or even obligated to) ignore the statute and decide the questions presented by the
220

The view put forward by Justice Scalia and the Office of Legal Counsel goes far beyond the claim that the executive can refuse to enforce a statute that the executive deems to be unconstitutional. There is a lively debate over the latter issue. See, e.g., Harrison, supra note ___, at 368-385 (constitutional text and structure suggest that executive must treat as legal nullities acts of Congress inconsistent with the Constitution and, in determining whether acts violate the Constitution, executive is not bound by congressional determination); Frank Easterbook, Presidential Review, 40 CASE W. L.REV. 905 (1990) (defending executive nonenforcement of laws the executive deems unconstitutional); Christopher May, Presidential Defiance of Unconstitutional Laws: Revising the Royal Prerogative, 21 HASTINGS CONSTL. L.Q. 865 (1994) (arguing against executive nonenforcement). The Scalia/Office of Legal Counsel claim about the scope of prosecutorial discretion is broader than an assertion about nonenforcement in a context where enforcement would be, in the view of the executive, unconstitutional. The broader view maintains that the executive has a constitutionally protected right to enforce the statute however it sees fit (subject to narrow exceptions mandated by the Constitution), even if enforcement actions that the executive refuses to take would be, in the view of the executive, constitutional enforcement actions. See supra note ___. Why the executive does, or should, have this broader constitutionally protected power is not explained, it is just declared. It is worth noting that, if one believes that the executive power includes the right to refuse to enforce a statute that the executive finds to be unconstitutional, that may exhaust the constitutionally protected prosecutorial discretion that Justice Scalia and others read into the term executive power.

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case in a non-arbitrary manner. For enforcement of the law, and adjudication of disputes arising under the law, the relevant and (usually) definitive legal instrument, is the statute. Even if the coordination thesis does not comport with the orthodox understanding of the functions of government, and does not map on to practice as reflected in legal norms and rules, some might argue that the idea is normatively appealing and, hence, the system should be reconfigured to reflect it. Putting aside for the moment the normative merits of the thesis, it should not escape notice that operationalizing this version of the coordination these would require a radical alteration of present arrangements Consider a thoroughgoing coordination thesis world: the statute is the first cut at the policy choice; the executive, in its decisions about implementation and enforcement, and then the judiciary in its interpretation of statutes, would each independently determine the correct, non-arbitrary, policy choice in the circumstance. The executive has already consented to the statute (or its veto has been overridden) and might be expected agree with the Congressional judgment quite often, but no such prior consent would guide the judiciarys interpretation. As the example should show, adopting the coordination thesis would require re-making the system from the ground up. Even if we could re-make the system, this consideration should also raise questions about the normative attractiveness of the thesis: as the example illustrates, it constitutes no less than a revision of the U.S. form of legislative supremacy. There is one final justification for institutionally separating functions that can be called the rule of law thesis.221 This rationale for is best understood in the context of the command to institutionally separate lawmaking from law implementation: if the same institution enacted and executed the laws, it could enact unreasonable laws and, in its executive capacity, exempt itself from the application of that law; or, while acting in its legislative capacity, the institution could exempt from operation of the law the actions taken by the institution in its executive capacity.222 To state the idea

221 222

William Gwyn uses this characterization. See Gwyn, supra note ___, at 16, 42.

Gwyn, supra note ___, at 35 (If the same persons both made and executed the law, government would not longer be under law since those persons in their legislative capacity would always modify the law to excuse whatever they might do in their executive capacity.); David Epstein, THE POLITICAL THEORY OF THE FEDERALIST 129-30 (1984); Manning, supra note ___, at 646 ([S]uch separation [of lawmaking from law-exposition] made it more difficult for lawmakers to write bad laws

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in slightly different terms, this rule of law rationale is concerned with the conflict of interest presented when a single entity can both make the rules and apply them. It is an idea that has been traditionally associated with separation of powers.223 And unlike the justifications just considered, this idea is tied to the need to allocate the functions of government to different institutions and it does not threaten the U.S. form of legislative supremacy. THE FEDERALIST NO. 47, relying on Montesquieu, provides the rule of law justification for the separation of legislative and executive power. There, Madison writes: The reasons on which Montesquieu grounds his [separation of powers] maxim are a further demonstration of his meaning. `When the legislative and executive powers are united in the same person or body, says he, `there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.224 This is an oft-quoted idea--either directly from Montesquieu or from THE FEDERALIST--but the only aspect of it that seems to have survived is that a combination of functions threatens liberty. The reader is rarely told why that is so.225 As this examination has demonstrated, however, the contention that a combination of government functions threatens liberty is open to many meanings. It could mean that liberty is threatened because there is a concentration of political power; or it could mean that liberty is threatened because, once the functions are joined together, the checking (or coordination) role that each function is supposed to

and then spare themselves from the effects of those laws through their control over the laws application.). See, e.g., Gwyn, supra note ___, at 35; Vile, supra note ___, at 160; Manning, supra note ___, at 646 and nn. 165-168 (attributing this idea to, among others, Locke, Montesquieu, and Blackstone).
224 223

THE FEDERALIST NO. 47, at 271 (Rossiter ed., 1999).

See TAN ___-___. For an example of a commentator who provides a more precise explanation of the reasons for separation of functions, see Manning, supra note ___, at 645-648 (explanations include avoidance of concentration of political power; coordination thesis; and the rule of law idea described in the text).

225

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play is lost. But, as some historians have demonstrated, this passage, and Montesquieu himself, invoke the rule of law idea that warns against the concentration of lawmaking and law implementation because of the conflict of interest presented by that arrangement.226 Finally, then, we have isolated an independent justification for separating government functions. That is, the rule of law explanation moves beyond generalized support for dispersal of governmental power--an objective that does not require functional separation--and it is a rationale, unlike the coordination thesis, that does not challenge the U.S. version of legislative supremacy. Once isolated in this way, however, the deficiencies of the rule of law idea are obvious. Two are worth noting here. First, the idea depends on the ability to distinguish among the functions of government in a workable and coherent way. On the rule of law idea, it is crucial to separate lawmaking from law implementation; to enforce that command, we would need robust definitions of lawmaking and law implementation, definitions that would permit us to easily separate one from the other. To state the task is to expose it as daunting, if not impossible.227 Two examples illustrate the depth of the difficulty. The status of the non-delegation doctrine provides the first example. Judicial failure to enforce the rule that the legislature not delegate lawmaking to other branches of government demonstrates that courts have been unable to fashion a definition of lawmaking and law implementation that would permit them to sort the cases appropriately.228 It is not only, however, that it is difficult to tell the difference between lawmaking and law implementation. The point

Epstein, supra note ___, at 127-30; Gwyn, supra note ___, at 35-36, 104-105 (both observe that this passage if often invoked and poorly understood; both claim that the passage means the rule of law idea identified in the text).
227

226

See TAN ___-___ (Part I.B.1.)

See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (striking down provision of the National Industrial Recovery Act as impermissible delegation of lawmaking power to the President); A.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935) (same); Yakus v. United States, 321 U.S. 414 (1944) (upholding delegation of price control authority to the Office of Price Administration); see also Mistretta v. United States, 488 U.S. 361, 415-416 (1989) (Scalia, J., dissenting) (recognizing that the scope of delegation is largely uncontrollable by the courts); Symposium: The Phoenix Rises Again: Nondelegation Doctrine from Constitutional and Policy Perspectives, 20 CARDOZO L.REV. 731-1018 (1999).

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may be deeper than that: it may be that a distinction between lawmaking and law implementation is incoherent. Consider an example that suggests as much: enforcement of the law by prosecutors. Prosecutors ability to enforce the law in the way they see fit is considered an executive function; indeed, it is thought to be implementation of the law in the most basic sense.229 At the same time, decisions by prosecutors about how to enforce a statute are indistinguishable from lawmaking.230 That is, given that the range of permissible enforcement actions under criminal laws (and many other laws) is extremely broad, it is the prosecutors pattern of decisions that shape the meaning of the law, not the underlying statute itself. In such a context, a command to separate lawmaking from law implementation seems incoherent. There is another difficulty with the rule of law idea that relates to its salience. It is difficult to ignore that the rule of law idea is a rationale that has been abandoned as a constitutional constraint on the organization of government. That is, we routinely countenance the combination of what appear to be all three functions of government in a single entity. The acceptance of such entities may be explained by the previous point about the difficulty, and perhaps incoherence, of distinguishing among the three functions of government. Whatever the cause and however we might ultimately define the three functions of government, in the regime we have adopted, the combination of lawmaking, enforcement, and adjudication is routine. Administrative agencies make the point most obviously: they are an example of entities that combine lawmaking, law implementation, and adjudication under the law.231 This is not to assert that our acceptance of the combination of functions is the right outcome; it is only to say that it is the result our institutional practices reflect. It is worth observing, however, that we have embraced a modified version of the rule of law thesis: the Administrative Procedure Act requires some separation of functions

229 230

See supra note ___.

See, e.g, Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law?, 110 HARV. L.REV. 469, 470 (1996) (The orthodox defense of separation of powers rests on a profoundly mistaken understanding of the nature of federal criminal law. The conventional account treats substantive criminal law as exclusively legislative in origin; there are and can be no federal common law crimes. But this view is impossible to sustain on close inspection. .. . . [F]ederal criminal law, as a whole, is best conceptualized as a regime of delegated lawmaking); cf. Kenneth C. Davis, POLICE DISCRETION (1975); Carl McGowan, Rule-Making and the Police, 70 MICH. L.REV. 569 (1972).
231

See TAN ___-___ (Part I.B.1.).

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within an agency,232 and the Due Process Clause sometimes operates to require separation of functions within agencies.233 Neither of these doctrines, though, require that lawmaking, law implementation, and adjudication be separated on the institutional level. This examination of the reasons offered for separating functions underscores the profound conceptual confusion caused by the muddle of the present consensus. A variety of rationales are offered for separating functions. But some, like the concentration of political power justification, do not actually require institutional separation. And the coordination thesis is a common explanation, but, once examined, it is open to devastating objections: it both misdescribes reality and defies the U.S. system of legislative supremacy. Finally, the rule of law rationale, which does map on to institutional separation while not challenging the U.S. form of legislative supremacy, is all but lost in the muddle of the present consensus and it too suffers from serious deficiencies. 3. Underdeveloped Ideas about Balance-of-Power

The balance-of-power conception is just as inadequate as the separation-offunctions conception. And its limits are likewise traceable, at least in part, to muddling the two conceptions together in the present consensus. That is so because the unstated relationship between the two conceptions in the consensus--namely, that separated power (or functions) leads to balanced power234--has heretofore supplied the explanation of just what this conception means. As already demonstrated, however, the connections between the two ideas fail. It is tortured to treat functional separation as a way of achieving tension and competition, and it is fanciful to treat functional separation as a way of creating balance.235 Stripped of those explanations of the meaning of balance-of-power, the conception is virtually devoid of content. We do not know what balance means, and we do not know how it is achieved or

232

See Administrative Procedure Act 556(b); Mashaw, Merrill, & Shane, supra note ___, at Withrow v. Larkin, 421 U.S. 35 (1975). See TAN ___-___ (Part III.B.2.). See TAN ___-___ (Part III.B.2.).

407-410.
233 234 235

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Consider first the meaning of balance in this conception. Its meaning is indistinct. Its recondite character may be due to the ideas origin in the theory of mixed government. That is, the meaning of balance may remain enigmatic because of the difficulty of transitioning from, in the mixed government approach, a balance of classes to, in the U.S. version, a balance of powers.236 Whatever the source of the opacity of balance, however, opacity it is: just how one might compare the power of the executive, legislative, and judicial departments and pronounce them balanced is absent from the balance-of-power conception. Not only is the meaning of balance among the departments of government unstated, the difficulties of supplying a meaning are formidable, if not insuperable. Consider what would be needed if, when faced with an institutional arrangement, a court wanted to determine whether the balance of power among the departments would be upset by that arrangement. The standard supposes that the quantum of power retained in one sphere of government could be measured. And not only must a balance-of-power court measure the quantum of power retained in a single institution, the court must comparatively measure that power--thus, institutions exercising different types of power have to be compared to one another and the balance of power among them must be discerned. To measure power, we would have to start with a definition of power, power in this precise context, governmental institutional power.237 One can suggest some ways to measure the quantum of power held by an institution; the trouble is, it is hard to see whether any of those possible definitions capture what we might want to know. One way of measuring power would be to determine whether one institution routinely prevails over another institution; that is, has its interests vindicated consistently when interests between the two are at odds. For instance, how often does Congress prevail over the executive branch? We do have occasions where the two are directly pitted against one another and perhaps the way to determine which has more power is to see if one entity consistently prevails. But if we focus solely on those moments where
236 237

TAN ___-___ (Part III.A.2.).

For an introduction to the complexity of the problem of measuring institutional power, see Stephen Ansolabehere and James M. Snyder, Jr., Money and Institutional Power, 77 TEX. L. REV. 1667 (1999); Keith Kreihbiel, PIVOTAL POLITICS: A THEORY OF U.S. LAWMAKING (1998).

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there is an explicit conflict--say a veto by the President and an override of that veto in the Congress--we will miss a large part of the picture. Much back and forth occurs in the relationship between the executive and the legislative departments that does not rise to the level of explicit, formal conflict, and yet, it could be said that the executive or the legislature won: a rule promulgated that Congressmen, as a whole, did not want, but their dislike was not sufficiently intense to rise to the level of formal legislation to have it overturned; or, on the flip side, a proposed regulation scuttled because a Congressional committee strongly objected and the administration was not willing to fight to overcome opposition. If the executive wins hundreds of little battles like that, does it still mean that one veto override by Congress on a question of foreign aid means that the Congress has more power? There is still another more vexing inquiry posed by the idea of balance contained in the balance-of-power conception. Not only would we have to measure the quantum of power held by each institution and compare it to the others, we would have to identify a baseline of appropriate power allocation among the spheres of government, and it is against that baseline that we would measure whether one sphere of government had too much power. How would we identify our baseline of the appropriate allocation of power among governmental institutions? Does that baseline allocation remain static or fluid? Perhaps, however, a balance-of-power court could put these questions aside and apply the conception in a different way. It may be that, as long as there is a sufficient level of tension and competition among the departments of government, the distribution of the power among those departments is as close to equilibrium as it could be. Given the difficulties of defining, measuring, and comparing government power sketched here, this is an attractive option. Unfortunately, the balance-of-power conception, as presently developed, does none of the work necessary to allow us to make that determination. The balance-ofpower conception does not identify what exactly creates and maintains competition and tension. This gap may also be traceable to the uneasy transition from mixed government to the modified U.S. form of balance; loyalty to social order is one thing, loyalty to functionally differentiated institutions is another.238 Once again, the muddle of the consensus has prevented us from seeing this deficiency. The consensus would
238

See TAN ___-___ (Part III.A.2.)

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suggest that functional separation, by itself, is enough to create tension and competition. But, as demonstrated earlier, it is untenable to treat functional separation as a way of achieving that tension and competition.239 Stripped of that way of creating tension and competition, the balance-of-power conception does not identify the mechanisms by which tension and competition are created. Consequently, a balance-of-power court would not know which arrangements would dilute that tension and competition. The balance-of-power conception, then, is underdeveloped. Once it is detached from the separation-of-functions conception, it is revealed as almost completely lacking in content. We do not know what balance means, nor do we know what creates and maintains the institutional competition that is so important to the conception. IV. Beyond the Consensus

This Article has argued that the important divide in separation of powers theory and doctrine is not the divide that has dominated the literature for decades: the squabble over formalism and functionalism. That squabble has obscured a much more pressing set of questions about the substantive theory of separation of powers. As this Article has demonstrated, there is a surprisingly robust consensus about separation of powers that is astonishingly underdeveloped. That consensus simultaneously embraces two distinct theories of separation of powers that cannot be conceptually or doctrinally reconciled. The muddled consensus has had far-reaching conceptual consequences: by glossing over the distinctiveness of the ideas contained within the consensus, we have failed to see those two conceptions as independent of one another and failed to think critically about each conception. The lesson of the examination conducted here, then, is that the present consensus must be abandoned. Abandoning the consensus is the first important step toward formulating a new set of ideas about separation of powers. What will follow from abandonment of the present consensus is not clear. It may be that the two conceptions are irreconcilable and that we must choose between them. Or it may be that they can be fit together in some as-yet-undeveloped way. Or it may be that neither idea is sustainable and that we must reject them both. This final
239

See TAN ___-___ (Part III.B.2.a.).

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path is the one Professor Bruce Ackerman urges in his provocative head-on challenge to the U.S. system of separation of powers in which he vigorously defends a modified parliamentary system.240 This Article will not take up the latter steps on the road to a new consensus, but the effort here does clarify the challenges ahead for those who resist alternative models--such as parliamentary government--and would develop a new consensus out of the muddled and confused ideas now contained in the consensus. Those who wish to defend adherence to the separation-of-functions conception face two evident difficulties. First, because the conception requires institutional separation of government functions, it presupposes that we could identify the attributes of each function and, in practice, enforce those lines. Defenders of this conception, then, must start doing the hard work to provide those definitions. The second challenge for those wishing to defend the separation-of-functions conception is deeper: defenders of the conception must supply a satisfactory defense of institutionally separating government functions. The examination conducted here revealed that the one independent reason for institutionally separating functions-namely, the rule of law idea--is a rationale that we have abandoned as a matter of constitutional doctrine. Courts now permit the merger of lawmaking and law implementation within administrative agencies. The rule of law ideal, to be sure, is enforced in a modified way through the statutory and constitutional requirements that require some separation of functions within agencies. But the challenge for those who would adhere to separation-of-functions is to persuade others that these more limited ways of enforcing the rule of law ideal are unsatisfactory. The challenges for advocates of the balance-of-power conception are also substantial. Defenders of this conception must do no less than provide content to the conception where none now exists. Adherents must be able to articulate what is meant by balance; they must provide some way of measuring and comparing the quantum of power possessed by government institutions and, likewise, provide and defend a benchmark against which to measure whether an arrangement would upset that balance. Perhaps as a substitute to that seemingly impossible task, defenders of this conception must identify how tension and competition among the departments are created and maintained. Only once that work is completed could courts be able to assess whether an arrangement would dangerously dilute tension and competition.
240

See Ackerman, supra note ___.

The challenges for each conception are daunting. It may be that they are insurmountable, in which case the conceptions must be modified or perhaps even abandoned altogether. If the debate moves beyond incantations of the anthem that is now the consensus--the brilliance and virtues of separating power and balancing power-- and the tired references to Montesquieu and Madison, the effort conducted here will have been worthwhile.