Balance-of-powers arguments, the structural constitution, and the problem of executive "underenforcement."(Symposium: The Bounds of Executive Discretion in the Regulatory State)

Author:Posner, Eric A.

Balance-of-powers arguments are ubiquitous in judicial opinions and academic articles that address separation-of-powers disputes over the President's removal authority, power to disregard statutes, authority to conduct foreign wars, and much else. However, the concept of the balance of powers has never received a satisfactory theoretical treatment. Possible theories of the balance of powers are examined and all are rejected as unworkable and normatively implausible. Judges and scholars should abandon the balance-of-powers metaphor and instead address directly whether bureaucratic innovation is likely to improve policy outcomes. Additionally, implications for the underenforcement controversy are discussed.

INTRODUCTION I. THE "BALANCE OF POWERS" IN THE COURTS AND IN THE ACADEMIC LITERATURE A. The Courts B. The Academic Literature II. ANALYZING THE BALANCE OF POWER A. Concepts B. Form Versus Substance C. Balance of Power in the Case Law IV. IMPLICATIONS: REVISITING CLAIMS ABOUT PRESIDENTIAL POWER A. Recent "Imperial Presidency" Claims B. Doctrinal Controversies 1. The Removal Power 2. The Legislative Veto C. The Underenforcement Controversy CONCLUSION INTRODUCTION

The central metaphor in judicial opinions that addresses a clash between the Executive and Congress is the balance of power: the idea that neither branch should be powerful enough to dominate the other. In American constitutional law, the metaphor originates from Madison's theory that governments should be divided into three branches--executive, legislative, and judicial--which must always remain in balance. (1) Although Madison meant all three types of power must not be held by one branch and did not suggest the modern idea that incremental shifts in the balance of power could be unconstitutional, Madison's idea is frequently interpreted today to mean that a particular balance must always be maintained and that it is the courts' duty to maintain it. (2)

But what do courts do when they maintain the balance of power between the Executive and Congress? What does this metaphor mean? The idea, which at first glance seems geometrically precise, is elusive under close inspection. Power is famously difficult to define. It is even harder to quantify or assign "weight" to. Does balance of power mean that Congress and the President possess the same amount of power? Or merely that both branches play a role in determining policy outcomes (or some policy outcomes)? Or just that one branch can prevent the other from engaging in abuses (or certain abuses)? Or just that efforts by one branch to implement policy will be systematically questioned, criticized, or opposed by the other? A historical perspective shows just how difficult it is to answer these questions. Scholars agree that the Executive is immensely more powerful today than it was at the Founding and has concentrated power at the expense of the judiciary and Congress. (3) Does that mean that the distribution of power among the branches is "unbalanced," and that courts must try to correct it by withdrawing power from the Executive? At various points, notably starting with the New Deal, Congress delegated vast powers to the executive branch so that officials appointed by the President would be responsible for enacting and enforcing regulations. (4) Did these delegations weaken Congress by transferring powers to the Executive or strengthen Congress by enhancing its ability to achieve its goals? Technological change appears to have enhanced the power of the Executive relative to that of Congress and the judiciary, providing the Executive with additional means to gather information, persuade the public, and enforce the law. (5) Should the courts withdraw power from the Executive in order to compensate for these advantages? Congress has grown in size from ninety-one members in 1789, (6) to 535 today. Did Congress become more powerful as a consequence of its greater size, or weaker because of the difficulties of cooperation among a large group of people? The party system was not anticipated by the Founders. Is the balance of power upset when government is unified under one party, or would the balance be unaffected or improved?

For a possible analogy, consider the role that "balance of power" plays in the theory of international relations. (7) Two states can be said to be at balance when neither is strong enough to conquer the other and hence both refrain from going to war. The potential benefits from victory are outweighed by the risk of loss and the costs that must be incurred even if victory is secured. A third country that seeks to ensure that neither country overwhelms the other can lend military assistance to whichever country might fall behind in an arms race, in this way maintaining the "balance of powers." Here, the balance of powers metaphor is helpful. Another analogy comes from an old constitutional tradition originating in the ancient world, which reflected anxiety about conflicts between the masses of ordinary people and the elites. A "balanced" constitution was one that ensured that neither group was able to take advantage of the other, and conflict between the two of them was minimized. (8) In both analogies, "balance" means peace, either external or internal, which can be observed. By contrast, the Executive and Congress do not try to conquer each other. They do not have territory that can be held or taken, nor do they have resources that can be seized. Instead, they compete to influence public policy outcomes. To determine whether their power is in balance, one needs a theory as to how they influence those public policy outcomes, and what it means for their influence to be equivalent. No such theory has ever been proposed.

In light of the difficulty of defining and measuring power, let alone determining whether the power of different branches "balances," one might be skeptical of the Court's assertion that its task is to maintain that balance of power. In Morrison v. Olson, for example, the Supreme Court acknowledged that the statutory for-cause restriction on the Attorney General's power to fire an independent counsel infringed on executive power, but nonetheless upheld the statute because the infringement was not significant in light of other means of controlling the independent counsel at the President's disposal. (9) By contrast, in Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court struck down a statute that restricted the President's ability to fire members of an administrative body by giving both those members and their bosses, the SEC Commissioners, for-cause protection. (10) The Court's reasoning is that a dual for-cause rule infringes more on the President's power than a single for-cause rule. (11) But can anyone reasonably believe that pension accountants charged with the task of regulating private firms represent a greater threat to presidential power than an independent counsel who can bring criminal charges against the President and his advisors? President Clinton's impeachment, instigated by an independent counsel, (12) should lay such a thought to rest.

In this Article, I supply a framework for analyzing claims about the balance of power between Congress and the Executive.

Power is the ability to force people to act differently from how they would otherwise act, usually by credibly threatening to harm their interests if they do not act as desired. (13) In the context of the U.S. government, one can distinguish two dimensions of power. Vertical power refers to the power of the government to coerce citizens. (14) Horizontal power refers to the relative vertical power of the different agents of government, conventionally divided into executive, legislative, and judicial branches. The Executive has maximum horizontal power if it possesses all the vertical power such that the legislature and judiciary are unable to coerce citizens independently.

The balance-of-power idea refers to horizontal power, but, as I will argue, it cannot be understood without reference to vertical power. A skewed balance of power may be harmless if vertical power is limited, but it will be dangerous if vertical power is great. One point I will make is that the debates in the literature on the balance of power are so removed from practical questions of governance that scholars and courts have lost sight of the social consequences of their positions on the balance of power.

But the focus of my analysis is on horizontal power and the notion of balance. I argue that the balance-of-power metaphor is not used consistently in judicial opinions and academic articles, although I do not claim that the concept of balance of powers is incoherent. (15) My main goal is conceptual: to provide an account of the balance of powers and its role in constitutional adjudication. To do this, I borrow some simple concepts from game theory, which clarify what exactly "power" means. These concepts also make clear the inconsistent ways that "balance of power" is used by the Supreme Court, and I ultimately suggest that the metaphor is not useful. A more promising approach is for the judicial department to address directly the social costs and benefits of proposed changes to government structure that end up in court.


    1. The Courts

      The Sarbanes-Oxley Act created a new agency called the Public Company Accounting Oversight Board, which was given the authority to regulate accounting firms. (16) The Act lodged the Board in the Securities and Exchange Commission (SEC), and gave SEC commissioners the power to appoint and remove the Board members subject to a for-cause standard. (17) The SEC commissioners themselves enjoy independence: the President can also remove them only for cause. (18) Thus, the Board is protected by a double layer of insulation from presidential interference: Board members cannot be removed by the...

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