Beyond powers and branches in separation of powers law.

Author:Magill, M. Elizabeth


The separation of powers provisions of the Constitution are understood as a way of controlling the exercise of state power by fragmenting it among three different institutions and guaranteeing that fragmentation. Conventional separation of powers analysis relies on two mechanisms to achieve and maintain the dispersal of state power: separating legislative, executive, and judicial power in three different branches and preserving a balance among those branches. These ideas are not just the stuff of high school civics class; legal doctrine governing separation of powers questions is built around them. The first concern about the proper allocation of functions arises in many contexts. The Prison Litigation Reform Act was constitutional only if Congress refrained from invading the judicial power, (1) and the Environmental Protection Agency's interpretations of the Clean Air Act were legitimate only if they did not represent legislation. (2) So too with the concern about balance among the branches. Observers claim that the line-item veto upset the balance of authority between the President and the Congress, (3) the legislative veto aggrandized Congress at the expense of the other branches, (4) and the growth of the administrative state has shifted the balance of power to the executive. (5) There is vigorous disagreement about the proper characterization of each of these examples, but there is little controversy about the proper framework within which that debate should proceed.

There should be. The embarrassing secret is that both commitments at the center of separation of powers doctrine are misconceived. The effort to identify and separate governmental powers fails because, in the contested cases, there is no principled way to distinguish between the relevant powers. The available strategies for identifying those differences--and, given the centrality of the question, there are surprisingly few--either rest on formalistic rules that have no content and fail for that reason, or consist of vague normative judgments that cannot work in concrete cases. While there are other possible methods for answering this question that are not yet fully developed in the literature, upon examination, they are not promising. The honest assessment is that we have no way to identify the differences between the powers in contested cases, and we are not likely to have one soon.

The effort to maintain balance among the branches fares no better. An obvious difficulty is that the claims made in the name of interbranch balance--for instance, that a development has upset the balance of power between the branches--are made without conveying why we should care about that balance. Such claims rest on assumed salient differences between the branches of government; the distribution of authority among the branches matters because those institutions will not decide questions in the same way. That intuition about inter-branch difference is taken as truth, but it is weakly supported and open to question. Nonetheless, understanding why we should care about this question is a step forward. It does not, however, rescue the concept. Indeed, it is a hopeless enterprise to talk about balance among the branches of government. We have not come close to articulating a vision of what an ideal balance would look like. Even if we had tackled that normative question, we have no way to measure the distribution of power among the branches at any point in time and no method to predict the effect of an institutional arrangement. In short, we do not know what balance means, how to measure it, or how to predict when it might be jeopardized. All these deficiencies are partly explained by the final and most fundamental difficulty with this idea. Inquiring about inter-branch balance is incoherent because it assumes that branches of government are unitary entities with cohesive interests, but that is not true. The institutions of the national government are made up of individuals and sub-institutions with varying incentives that do not neatly track the institution within which they are located.

This Article argues that the two central commitments of contemporary separation of powers law are a failure. Fine-tuning these ideas will not redeem them. Rather, the criticisms offered here reveal that we are thinking about questions of horizontal constitutional structure in the wrong way. Talk of balancing three branches exercising three powers may be comfortable, but it is also tired and, more important, unhelpful and in some ways incoherent. Abandoning these ideas, as we must, will make room for new ways of thinking about separation of powers law.

Reconstructing separation of powers law will be no easy task. While this Article cannot complete that effort, it starts it by sketching the implications of the criticisms offered here. Taking seriously the failings of current law offers at least two important lessons for its reconceptualization. The most significant lesson is that if one is interested in fragmenting state power and assuring that it remains fragmented, the failure of the conventional approaches is of little moment. Those approaches seek to disperse the three powers in three balanced branches, in part, so that no single institution controls too much state power. This Article will argue that those efforts fail. But in the course of noticing that there is no such thing as three essential powers exercised by three undifferentiated branches, we will also notice that government authority is fragmented, widely so, albeit not according to the three-powers-in-three-branches formula. Instead, government authority is diffused among a large and diverse set of government decisionmakers who have a hand in the exercise of state power. The extent of that diffusion of state power is more than sufficient to put to rest any concerns about dangerous concentrations of government authority. And the character of that fragmentation is such that state power is likely to remain widely dispersed. Because the decisionmakers who share in the exercise of government authority have varied incentives--owing to their diverse constituencies, institutional locations, and ways of doing business--there is little chance that they would collude to concentrate government power in a few hands. If diffusion of state authority is what we are after--and that is what conventional approaches in part are seeking--we have it. To the extent that separation of powers doctrine is driven by worries about the prospect of dangerous concentrations of state power in a single institution of government, those worries are misplaced.

Understanding the character of the distribution of government authority also offers a second lesson for separation of powers law. That law aspires to something more than general diffusion of state power; it seeks to match the exercise of particular powers--legislative, executive, judicial--with corresponding institutions that are best suited to exercise those powers. The criticisms offered here suggest that current efforts go about this ambitious undertaking in exactly the wrong way. Conventional thinking about separation of powers operates as if it is meaningful to talk of powers and branches. There are many flaws in that effort, but one of them is that our system does not operate at those levels; government authority cannot be parceled neatly into three categories, and government actors cannot be understood solely as members of a branch of government. An effort to match particular state powers with particular government decisionmakers must start with an understanding of how those decisionmakers might exercise that authority. That requires a fine-grained appreciation of the forces that push and pull government actors in one direction or another. A doctrine built around such understandings will offer no easy answers, but it will at least ask the right questions.

Part I of this Article presents and criticizes the two central features of current separation of powers thinking. It argues that these ideas fail so completely that they should be abandoned, making room for a reconceptualization of separation of powers law that forgoes reliance on the familiar, but unhelpful, guides of three powers and three branches. Part II starts the reconstruction effort. The criticisms offered here diagnose particular failings of current doctrine and suggest the more promising paths that doctrine should pursue.


Those who analyze separation of powers questions are typically thought to be deeply divided over how to resolve controversies involving the allocation of authority among the departments of the federal government. (6) It's true, there is debate about the proper method for deciding particular cases--a dispute that tracks the familiar choice between a rule or a standard. (7) There is also disagreement about what the principle of separation of powers substantively requires. The deepest of these substantive differences are about the organization of the executive branch--whether the Constitution requires that the President control a hierarchically organized executive branch (8)--and the depth of commitment to requiring that each of the branches exercise only the power assigned to that branch, a controversy that largely revolves around the constitutional status of administrative agencies. (9)

But the depiction of disagreement is also inaccurate. The differing approaches serve the same overarching goal: cabining the exercise of state power by fragmenting that power among three distinct and potent branches of government. The commonalities run deeper than adherence to this general goal. Dominant academic approaches subscribe to specific postulates to achieve that goal and those same postulates are central to judicial approaches to separation of powers. The courts and most commentators are committed to distinguishing, in at least some range of cases, among...

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