A Critical Take on Separation-of-Powers Formalism

• Pages: 441-451
• Date: 01 July 2024
• Published date: 01 July 2024
• Author: Bijal Shah
• Subject Matter: Administrative & Public Law

A Critical Take on Separation-of-Powers

Formalism

BIJAL SHAH*

ABSTRACT

Formalism has come to dominate both legal scholarship and judicial deci-

sionmaking that bears on the separation of powers. Today’s constitutional law

scholars and the Supreme Court characterize formalism’s preferred interpretive

methodologies—originalism and textualism—as rigorous and reliable, and

argue that these approaches can serve progressive aims. This invited sympo-

sium contribution considers the value of these formalist approaches from the

perspective of critical legal theory. First, this essay observes that originalism

and textualism fall short of neutrality, objectivity and determinacy, thus rein-

forcing critical legal studies’ skepticism of formalism. In addition, this piece

suggests that these interpretive methods are inconsistent with critical legal stud-

ies’ emphasis on social change. Notably, this piece continues the author’s work

of integrating the insights of critical theory into structural constitutionalism

and administrative law.

* * *

Formalists assert that the Constitution’s vesting clauses create a clear, complete

division of federal governmental authority,

1

and that this structure provides fortif‌i-

cation against governmental tyranny.

2

Consequently, formalist adherence to a

strict separation between each of the three federal branches is animated by the idea

that their power is granted and constrained by readily ascertainable and enforcea-

ble rules of law or constitutional requirements. More specif‌ically, as Rebecca

Brown explains, “[t]hose who espouse the formalist view of separated powers ...

posit that the structural provisions of the Constitution should be understood solely

* Professor of Law and Provost Faculty Fellow; Boston College Law School. © 2024, Bijal Shah.

1. Ronald J. Krotoszynski, Jr., Transcending Formalism and Functionalism in Separation-of-Powers

Analysis: Reframing the Appointments Power After Noel Canning, 64 DUKE L.J. 1513, 1527 (2015)

(“Formalism generally relies on the Constitution’s allocation of particular powers and duties to create

mandatory lines of demarcation that federal courts must strictly enforce . . . .”); Gary Lawson,

Territorial Governments and the Limits of Formalism, 78 C ALIF. L. REV. 853, 857–58 (1990)

(“Formalists treat the Constitution’s three ‘vesting’ clauses as effecting a complete division of otherwise

unallocated federal governmental authority among the constitutionally specif‌ied legislative, executive,

and judicial institutions.”).

2. THE FEDERALIST NO. 47, at 324 (James Madison) (Jacob E. Cooke ed., 1961) (“The accumulation

of all powers legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and

whether hereditary, self-appointed, or elective, may justly be pronounced the very def‌inition of

tyranny.”); Krotoszynski, Jr., supra note 1, at 1527 (“[N]either the reallocation of a power from one

branch to another (aggrandizement), nor efforts to deny a power given to a particular branch without

reallocating it (encroachment), should be tolerated.”).

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