The Separation-Of-Powers Counterrevolution.

• Author: Bowie, Nikolas

ARTICLE CONTENTS INTRODUCTION 2024 I. THE REPUBLICAN SEPARATION OF POWERS 2032 A. The Theory of the Separation of Powers in England 2034 1. Nondomination 2034 2. Rule of Law 2037 3. Political Equality 2039 B. The Separation of Powers in Early American Practice 2041 II. THE JURISTOCRATIC TURN 2047 A. The Separation of Powers During Reconstruction 2049 B. Dunning and the Idea of Separation-of-Powers Juristocracy 2056 C. Taft and the Making of Separation-of-Powers Juristocracy 2072 D. The Juristocratic Separation of Powers after Myers 2077 III. DECONSTRUCTING THE JURISTOCRATIC SEPARATION OF POWERS 2082 A. Nondomination 2085 1. Arbitrary Entitlements 2086 2. An Impoverished Constitutional Imagination 2093 B. Rule of Law 2096 1. Historical Practice and the Rule of Law 2097 2. Dispensation and the Rule of Law 2100 C. Political Equality 2102 IV. RECONSTRUCTING THE REPUBLICAN SEPARATION OF POWERS 2107 A. Who Decides? 2108 B. Building on Existing Theories of Judicial Deference 2110 1. The Political Character of the Separation-of-Powers Decision 2110 2. Reinterpreting Thayer 2111 C. A Garcia for the Separation of Powers 2113 D. Case Studies 2117 1. The Legislative Veto 2117 2. Regulating the Pardon Power 2119 3. Presidential Removal and the Problem of Legislative Bad Faith 2122 CONCLUSION 2125 INTRODUCTION

Modern separation-of-powers law is premised on a misunderstanding of what the separation of powers is. Today, judges and lawyers from across the political spectrum take for granted that the U.S. Constitution imposes unwritten but judicially enforceable limits on the power of one branch of government to interfere with the others. Even when the legislative and executive branches agree on what the separation of powers should look like--as when Congress and the President enact a statute that regulates how the executive branch should operate - members of the judicial branch have assumed the responsibility to invalidate such agreements if they conflict with a court's interpretation of each branch's implied constitutional prerogatives. Debates over the separation of powers have become debates over which lawyerly method courts should use to establish the Constitution's true limits. (1) Although participants disagree on whether these limits should be defined formally or functionally, (2) or with reference to original public meaning, (3) liquidation, (4) or the gloss of historical practice, (5) they agree that it is the Supreme Court--using the instruments of legalism--that should decide them. (6)

This juristocratic separation of powers is often taken as a natural or inherent feature of American constitutionalism. But it took control of the American imagination only in 1926, after centuries in which a profoundly different understanding of the separation of powers was dominant. When John Locke, the Baron de Montesquieu, and other European intellectuals first popularized the separation of the legislative, executive, and judicial powers, they described a system in which each institution of government enforced its own prerogatives through political negotiation and statecraft. (7) When American revolutionaries incorporated these insights into their first written constitutions, they drafted the blueprints for a republican separation of powers, anticipating that representative institutions would distill constitutional meaning and enforce constitutional limits as part of the deliberation and compromise necessary to pass legislation. (8)

While these republican thinkers never settled on a single version of the separation of powers, they viewed separating governmental responsibilities among different institutions as a strategy for developing a rule of law that, consistent with political equality, could prevent domination by any individual or group--be it a monarch or a tribunal. (9)

"Public opinion sets bounds to every government, and is the real sovereign in every free one," James Madison wrote during the Constitution's opening decade, as he and other politicians determined for themselves whether new institutions of government were necessary and proper to carry into execution the brief document's indeterminate guidelines. (10) Even after Marbury v. Madison, (11) when the Supreme Court emphatically declared that it would decline to enforce statutes that conflicted with its interpretation of the Constitution, the Court spent the next century deferring to Congress and the President's judgment about what the relationship between the Executive and Congress should legally entail. (12)

This republican understanding of the separation of powers was so pervasive that Congress eventually rejected the idea that the constitutionality of an enacted statute could be challenged for violating the separation of powers. After the Civil War, as supermajorities in Congress attempted to reconstruct the South into a racially egalitarian democracy, they also enacted statutes to prevent a hostile President from interfering with their policies. When President Andrew Johnson violated one of these statutes for the asserted purpose of bringing an alleged breach of the separation of powers to the Supreme Court's attention, Congress impeached and nearly convicted him of violating his constitutional duty to take care that the laws be faithfully executed. (13) Observers who opposed the impeachment on partisan grounds nevertheless also rejected Johnson's claim that a President could decline to "execute the laws passed over his veto upon matters which in his opinion touch his executive prerogatives." (14) His argument struck many Americans as resonant of a power to dispense with statutes once claimed by the English Crown--a power that had long been repudiated as tyrannical. (15)

But Reconstruction gave way to a "counter-revolution": one that overturned not only Congress's civil-rights legislation but also its decades-long claim of interpretative supremacy. (16) In the 1870s, an ascendent white South violently returned to power in Washington, determined to end Reconstruction and prevent it from reoccurring. Where members of earlier Congresses had argued that federalism and the separation of powers were both indeterminate ideas subject to statutory amendment, this new generation of politicians, historians, political scientists, and judges argued that the antebellum constitutional order had been permanently settled by the Constitution's text and early precedent. From this new generation's perspective, it was appropriate for President Madison's First Congress to determine which institutional arrangements were necessary and proper to run the American government, but it was blasphemous for the Reconstruction Congress to reconceive those arrangements. Even worse, the Reconstruction Congress's tyrannical goal of establishing "congressional supremacy in the conquered South" was only narrowly avoided. (17) President Johnson was soon remembered as a tragic hero who would have prevented Congress's unconstitutional conduct if not for "the meshes which Congress was so mercilessly weaving about him." (18)

The lesson one law professor drew from this revisionist history was that the Constitution's abstract words revealed an objective and precise separation of powers that public opinion and presidential vetoes had proved incapable of enforcing. Steeped in Lost Cause historiography, then-Professor William Howard Taft wrote that only federal judges could effectively determine when a statute impermissibly constrained the presidency--a task he thought "d[id] not involve politics at all or anything like legislative discretion." (19) When he joined the Supreme Court as Chief Justice in 1921, Taft turned this Lost Cause dogma into Supreme Court doctrine. In the 1926 decision of Myers v. United States, (20) the Court declared the Reconstruction Congress's actions unconstitutional--the first time it had ever limited Congress's power to structure the executive branch. (21) The Court also authorized future presidents to violate similar statutes, an ongoing practice that members of the Court, academia, and the executive branch have continued to condone a century later. (22)

In this Article, we argue that Taft's ongoing counterrevolution is misguided. Rather than treat the separation of powers as a legal principle of interbranch entitlements secured by judicial enforcement, we contend that the separation of powers is a contingent political practice reflecting the policy needs, governance ideas, and political struggles of the moment. This fundamentally unsettled constitutional framework is not a problem for constitutional law to solve. It is a central normative feature of American constitutional government. A provisional constitutional structure, comprised of statutes, advances the normative values of nondomination, the rule of law, and political equality--that is, the values underlying the republican separation of powers. (23) The juristocratic counterrevolution, by design and in its effects, undermines each of these values.

As a principle of constitutional governance, the separation of powers is historically contingent, institutionally arbitrary, and inherently provisional. (24) It comprises a set of broad, vague, conflicting, and contested political ideas (thinly connected to sparse and ambiguous constitutional text) and a set of overlapping, interacting institutions that participate in the messy work of national governance. (25) There is no essential or immutable separation of powers.

Statutes on this account are foundational to the design of constitutional government, but not because statutes comprise evidence of some settled constitutional meaning or interbranch acquiescence. Rather, legislation constitutes the separation of powers; it offers a durable, though not immutable, means of state-building.

Presidents and members of Congress have long disagreed with one another about whether a particular bill is consistent with the Constitution's separation of powers--disagreement...