The Real Separation in Separation of Powers Law (SSRN)

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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

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

A revised version of this paper is forthcoming in

Virginia Law Review, September 2000.





2

Associate Professor of Law, University of Virginia School of Law. Thanks to Kim Forde-*

Mazrui, 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 theUniversity 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.

June Barrow-Green, POINCARE AND THE THREE BODY PROBLEM 7 (1997).1

James Gleick, CHAOS: THE MAKING OF A NEW SCIENCE 145 (1987).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(Draft: Do not cite without permission of the author)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 three-

body system cannot be answered.” Those questions are fundamental; they implicate2

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 relationshipamong 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.



Draft 3

Clinton v. Jones, 520 U.S. 681 (1997).3

Clinton v. New York, 524 U.S. 417 (1998).

4

Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U.PA.L.R EV. 1513, 15175

(1991).

Laura S. Fitzgerald, Cadenced Power: The Kinetic Constitution, 46 DUKE L.J. 679, 6896

(1997).

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 Clinton’s claim to limited immunity from civil suit while in

office and invalidated the popular line-item veto. As those two cases and many3 4

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 Court’s case

law is no more settled than the commentary: it has been called an “incoherent

muddle,” produced by a Court that is “stumped” by separation of powers questions.5 6

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



The Real Separation4

examination reveals the consensus to be underdeveloped, confused, and possiblyincoherent. 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 infavor 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, conventionallydescribed, 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



Draft 5

M.J.C. Vile, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 14 (2d ed. 1998). See also7

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 executive8

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).

U.S. CONST. art. II, § 2, cl. 2.9

commentators actually agree on a theory of separation of powers. That theory isfamiliar, 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 theCourts

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 personnelamong the institutions. Traces of this “pure” doctrine are evident in the Constitution:7

Articles I, II, and III refer to three different types of governmental power and allocate

those powers to three different institutions with separate personnel. At the same8

time, the Constitution contains celebrated departures from pure separation, usually

dubbed checks and balances: the Senate’s advise and consent functions, thought to

be executive in nature ; Congress’ involvement in the judicial function of 9




U.S. CONST. art. I, § 2, cl. 5; art. I, § 3, cl. 6.10

U.S. CONST. art. I, § 7, cl. 2.11

See, e.g., Peter M. Shane & Harold H. Bruff, SEPARATION OF POWERS LAW (1996); 1 Laurence12

H. Tribe, AMERICAN CONSTITUTIONAL LAW § 2 (3d ed. 2000).

impeachment ; the President’s power to approve or veto legislation, involving him10

in the legislative function. Separation of powers, so described, is concerned with an11

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

President’s 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 President’s authority to

initiate policy; the President’s ability to “veto” aspects of legislation; the extent of the

President’s 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



Draft 7

See United States v. Lopez, 514 U.S. 549 (1995) (invalidating Gun-Free School Zones Act13

as beyond the scope of Congress’ commerce power); see also Symposium: Reflections on United States

v. Lopez , 94 MICH.L.R EV. 533 (1995).

Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803).14

See Peter W. Low & John C. Jeffries, FEDERAL COURTS AND THE LAW OF FEDERAL-STATE15

R ELATIONS 213-264 (4th ed. 1998)

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).16

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (striking down provision of the National17

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.R EV. 731-1018 (1999).

Commerce Power ; the legitimacy of judicial review of legislative and executive13

acts ; the scope of Congress’ authority over the jurisdiction of the federal courts.14 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 & Tube --remains the significant16

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 retired --17

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

President’s power to remove an executive officer (in that case, a postmaster first




272 U.S. 52 (1926).18

295 U.S. 602 (1935).19

Id. at 629; see also Wiener v. United States, 357 U.S. 349 (1958) (holding President20

Eisenhower’s removal of Wiener from the War Claims Commission over political differences illegal on

grounds that the Commission’s 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 21

the Fourth Branch, 84 COLUMB. L. R EV. 573, 611-12 (1984).

Though the Court has never provided a more helpfully reasoned explanation, it remains firm22

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 Court’s holding does not cast doubton 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 Court’s holding casts no doubt on agency “lawmaking”).

462 U.S. 919 (1983).23

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 Humphrey’s

Executor v. United States, the Court sustained Congressional restrictions on the19

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.” Though the Court’s reasoning was unhelpful, Humphrey’s remains the20 21

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. Chadha ) and the so-called line-item veto in 1998 (Clinton23



Draft 9

524 U.S. 417 (1998).24

The lower courts similarly have considered a number of separation of powers cases. See Swan25

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 President’s appointments for

replacement); FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C.Cir. 1993), cert. dismissed , 115S.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 Ass’n 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 General’s 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 (10 Cir. 1988) (upholding SECth

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 Reagan’s removal of members

from the Civil Rights Commission).

424 U.S. 1 (1976).26

478 U.S. 714 (1986).27

501 U.S. 252 (1991).28

458 U.S. 50 (1982).29

115 S.Ct. 1447 (1995).30

v. New York )--the Supreme Court alone has considered a steady stream of separation24

of powers controversies. Among its important holdings, the Court invalidated a25

statute providing for Congressional appointment of members of the Federal Election

Commission ( Buckley v. Valeo ); provisions of the Gramm-Rudman-Hollings deficit26

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. Synar ); participation by Congressmen on a review board with authority27

over decisions made by an entity administering National and Dulles airports

( Metropolitan Wash. Airport Authority ); bankruptcy courts whose judges did not28

enjoy Article III protections ( Northern Pipeline Constr. Co. v. Marathon Pipeline

Pipe Line Co. ); and provisions of a securities statute that required federal courts to29

reinstate civil fraud actions that the Court had previously held were time-barred ( Plaut

v. Spendthrift Farm, Inc. ). In the same period, the Court sustained establishment30




487 U.S. 654 (1988).31

488 U.S. 361 (1989).32

478 U.S. 833 (1986).33

418 U.S. 683 (1974)34

433 U.S. 425 (1977).35

Nixon v. Fitzgerald, 457 U.S. 731 (1982) (President possesses absolute immunity from36

damages liability based on official acts).

520 U.S. 681 (1997).37

For a sampling, Thomas O. Sargentich, The Limits of the Parliamentary Critique of 38

Separation of Powers, 34 WILLIAM & MARY L.R EV. 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.R EV. 54 (1987).

of an independent counsel in the executive branch ( Morrison v. Olson ); the31

promulgation of the Sentencing Guidelines by the U.S. Sentencing Commission, “an

independent commission in the judicial branch” ( Mistretta v. United States ); and the32

adjudication of common law counter-claims by an administrative tribunal (Commodity

Futures Trading Comm’n v. Schor ). Also during this period, thanks mostly to the33

Nixon Administration, the Court decided several important cases about the scope of

executive power. In those cases, the Court sustained the Watergate Special

Prosecutor’s subpoena decus tecum against President Nixon’s claim of executive

privilege (United States v. Nixon ); upheld the Presidential Recordings and Materials34

Preservation Act ( Nixon v. Administrator, General Services Administration ); and,35

rejected (in a successor to yet-another Nixon case decided during this period )36

President Clinton’s 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 British-

style parliamentary system. And that debate has been recently renewed in the law38

review literature by Professor Ackerman, who provocatively attacks presidential



Draft 11

See Bruce Ackerman, The New Separation of Powers, 113 HARV. L.R EV. 633 (2000).39

See, e.g., Flaherty, supra note ___, at 1732-1742; Brown, supra note ___, at 1522-1531;40

Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 SUP. CT. R EV. 225,

226, 229-235; William B. Gwyn, The Indeterminacy of Separation of Powers, GO. WASH. L. R EV. 474-

475 (1989); Harold J. Krent, Separating the Strands in Separation of Powers Controversies, 74 VA. L.

R EV. 1253, 1254-55 (1988); Harold H. Bruff, On the Constitutional Status of the Administrative

Agencies, 36 AM. U. L. R EV. 491, 495 (1987); Thomas O. Sargentich, The Contemporary Debate about

Legislative-Executive Separation of Powers, 72 CORNELL L. R EV. 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. R EV. 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 BYUL. R EV. 719; Geoffrey P. Miller, Independent Agencies, 1986 SUP. CT. R EV. 41, 52-

58 (classifying competing separation of powers analyses as neo-classical/pragmatic).

Formalists: Martin H. Redish, THE CONSTITUTION AS POLITICAL STRUCTURE (1995); Gary41

Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. R EV. 1231 (1994); Steven G.

Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105

HARV. L. R EV. 1153 (1992); Carter, supra note __; Lee S. Liberman, Morrison v. Olson: A Formalistic

Perspective On Why the Court Was Wrong , 38 AM. U. L. R EV. 313 (1989); David P. Currie, The

Distribution of Power After Bowsher, 1986 SUP. CT. R EV. 2; Miller, supra note __. Functionalists: Peter

L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions – A Foolish

Inconsistency? , 72 CORNELL

L. R

EV. 488 (1987); Strauss, Place of Agencies, supra note ___; HaroldBruff , 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.R EV. 452, 488-96 (1989); cf. Abner S. Greene, Checks and

Balances in an Era of Presidential Lawmaking , 61 U. CHI. L.R EV. 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.

separation of powers systems and defends a modified version of a parliamentarysystem. But even among those courts and commentators working within the39

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. Commentators are usually40

categorized as adherents of one position or the other, and those few commentators

searching for the ever-elusive third way. Recent commentary in the area is41




McCutchen, Mistake, Precedent, and the Rise of the Administrative State: Toward A Constitutional

Theory of Second Best , 80 CORNELL L. R EV. 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.R EV. 2681 (1996).

See, e.g., Flaherty, supra note ___; Steven G. Calabresi & Saikrishna B. Prakash , The42

President’s Power to Execute the Laws, 104 YALE L. J. 541 (1994); A. Michael Froomkin , The Imperial

Presidency’s New Vestments, 88 NW. U. L. R EV. 1346 (1994); Lawrence Lessig & Cass R. Sunstein, The

President and the Administration, 94 COLUMB. L. R EV. 1 (1994); Calabresi & Rhodes, supra note __.

See Fitzgerald, supra note ___, at 689, 706, 714; Flaherty, supra note ___, at 1733; Strauss,43

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); Humphrey’s Executor v. United States, 295 U.S. 602 (1935).

See Mark Kelman, A GUIDE TO CRITICAL LEGAL STUDIES 15-63 (1987).44

preoccupied by the so-called “unitary executive” debate and that sub-field isdominated by Constitutional text parsing and dueling accounts of the original

understanding of the executive department. For its part, the Supreme Court42

vacillates between what is described as formalist and functionalist approaches, fully

embracing neither, and sometimes borrowing from both. Neither of the dominant43

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. And, yet, in the context of this44

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



Draft 13

Merrill, supra note ___, at 230; see also Redish, supra note __, at 99-102, 113-119, 131-133;45

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.R EV.46

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 (advocatinga 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 isrelevant 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 Carter’s 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).

For the formalist, questions of horizontal governmental structure are to beresolved 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). Beyond a bare45

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. Examination of these sources yields a set of rules; it is in these rules that46

one comprehends the piercing doctrinal bite of the formalist position. As Gary

Lawson, a self-described formalist, explains:




Lawson, Territorial Governments, supra note ___, at 857-858; see also Redish, supra note47

___, at 108; Liberman, supra note ___, at 343.

See, e.g., Flaherty, supra note ___; Froomkin, supra note ___; Greene, supra note ___;48

Strauss, Place of Agencies, supra note ___.

See Merrill supra note ___; Lawson, Rise and Rise, supra note ___; Strauss, Place of 49

Agencies, supra note ___.

Formalists treat the Constitution’s three “vesting” clauses as effecting acomplete 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. Consider a dominant feature of 49

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



Draft 15

Some formalist commentators acknowledge that, on a formalist approach, there should be50

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.R EV. 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 onewants 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 note51

___. On legislative courts, see Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies,

and Article III , 101 HARV. L. R EV. 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. R EV. 1 (1983).

A formalist approach would also mean the end of the appointments arrangements governing so-

called independent agencies such as the Federal Trade Commission. Statutory independence for

commissioners (through, for example, limitations on the President’s 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, formalistsview 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 President’s 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.

is, legislative power. Likewise, adjudication of individualized disputes carried out50

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




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. R EV. 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 beable 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 52

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 53

Separation of Powers (manuscript on file with author).

488 U.S. 361 (1989).54

478 U.S. 714 (1986).55

487 U.S. 654 (1988).56

But it is more than transformative consequences that plague the formalist position. There is an independent problem with the formalist project: the enterprise52

depends heavily upon workable distinctions among the three categories of

governmental power. For in order to “place” correctly, one must “identify”

correctly. When examining the validity of an institutional arrangement--for example,53

the Sentencing Commission, the role of the Comptroller General under the Gramm-54

Rudman-Hollings Act, or the Independent Counsel --a formalist would have to55 56

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



Draft 17

THE FEDERALIST NO. 37, at 196 (Clinton Rossiter ed., 1999).57

William B. Gwyn, The Indeterminacy of Separation of Powers, 30 WM & MARY L R EV 26358

(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 has59

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. R EV. 1377, 1390 n. 47 (1994).

524 U.S. 417 (1998).60

462 U.S. 919 (1983).61

478 U.S. 714 (1986).62

Legislative, Executive and Judiciary[.]” Nor are our learned contemporaries any57

more confident of their ability to define the differences among the three governmental

powers. As Gary Lawson, among others, admits, “[the problem of distinguishing58

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, Bowsher ) are those in which the Court has invalidated the statutory61 62

arrangement under consideration.

2. Functionalism

Formalism’s 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




Merrill, supra note ___, at 231.63

See, Strauss, Formal and Functional Approaches, supra note ___, at 522; see also Flaherty,64

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 Comm’n 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).

488 U.S. 361, 412 (1989).65

Strauss, Places of Agencies, supra note ___; Strauss, Formal and Functional Approaches,66

supra note ___; see also Farina, Statutory Interpretation, supra note ___; Bruff, supra note ___; Greene,

supra note ___.

Strauss, Place of Agencies, supra note ___, at 596-640.67

See Flaherty, supra note ___, at 1810-38; Greene, supra note ___, at 125-126); Farina,68

Statutory Interpretation, supra note ___, at 488-96; see also Lessig & Sunstein, supra note ___.

Strauss, Place of Agencies, supra note ___, at 581.69

designed to advance the ultimate purposes of a system of separated powers.” The63

agreed upon `ultimate purpose’ is to achieve an appropriate balance of power among

the three spheres of government. As the Supreme Court observed in upholding the64

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. Those guidelines are gleaned from and constrained by66

the familiar formalist materials: the text, original understanding, and interpretation

of the relevant provisions of the Constitution. Functionalist commentators tend to67

read those sources differently than formalists. And functionalists, moreover, are68

constrained by a factor that does not constrain formalists: the “reality of existing

government.”69



Draft 19

See, e.g., Curry, supra note ___, at 19-20; Miller, supra note ___, at 41-43.70


Strauss, Place of Agencies, supra note ____, at 596; see also id. at 579 (each must have72

“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.”).


Id.74

Strauss, Place of Agencies, supra note ___, at 578-581; Strauss, Formal and Functional 75

Approaches, supra note ___, at 492-496.

For functionalists, the relevant sources happily suggest constraints that canaccommodate those governmental institutions--administrative agencies--that pose the

most serious challenge to a commitment to separation of powers. Professor Strauss70

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. As to those three named constitutional actors,71

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.” As for the subordinate parts of government--72

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.” Strauss would74

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 arelocated; instead, he would direct focus to the relationship between administrative

agencies and all three of the actors at the apex of government. Those relationships75





See, e.g., Redish, supra note ___, at 125; Liberman, supra note ___, at 345-47 (criticizing77

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).


Id.79

Redish, supra note ___, at 125-28.80

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 President” and the President’s powers over administration and78

Congress’s powers must be “sufficient to give some assurance of maintaining a

continuing tension over ultimate political authority between [the President] and

Congress.” These inquiries, of course, assume that balance, and its specific79

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. When a new arrangement is80

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



Draft 21

Strauss, Formal and Functional Approaches, supra note ___, at 513 (“While `core function’81

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 White’s consistent inability to apply his analysis with bite may itself suggest.”).

See, e.g., Liberman, supra note ___, at 345-347; Redish, supra note ___, at 125-128.82

See Dennis Hutchinson, THE MAN WHO O NCE WAS WHIZZER WHITE 397 (1998).83

Jesse H. Choper, JUDICIAL R EVIEW AND THE NATIONAL POLITICAL PROCESS 260-379 (1980);84

Michael J. Perry, THE CONSTITUTION, THE COURTS, AND HUMAN R IGHTS 49-60 (1982).

context given that the leading functionalist commentator appears to agree. If the81

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. As if to reaffirm that fear about the nature82

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




The most thoughtful of these approaches is the one developed by Professor Tom Merrill. See85

Merrill, supra note ___. In Merrill’s “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. Merrill’s 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 Merrill’s 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 potential86

effect of institutional arrangements on individual due process interests).

See Fitzgerald, supra note ___ (suggesting an approach based on the “nested constituencies”

87

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. R EV. 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).

while avoiding the weaknesses of each. Others articulate alternative conceptions85

of separation of powers: one commentator would have courts explicitly consider

individual due process interests in separation of powers cases, and others emphasize86

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



Draft 23

functionalism, which simply reaffirms the salience of that divide.

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




This objective is an intermediate, not ultimate, objective. That is, adherents of the consensus88

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-and-

balances” 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 thatshould 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-K ENT 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. R EV. 827 (1996).

is intended to prevent a single governmental institution from possessing and exercisingtoo much power. Second, courts and commentators also basically, though not88

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 President’s 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



Draft 25

This Part focuses on the agreement about the consensus among formalists and functionalists.89

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 powersapproach 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.”)

See, e.g., Mistretta v. United States, 488 U.S. 361, 381 (1989).90

Buckley v. Valeo, 424 U.S. 1, 122 (1976); Clinton v. New York, 118 S.Ct. 2091, 2124

91

(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).

becoming dominant.89

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.” As for the90

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 Strauss’s approach works




Strauss, Place of Agencies, supra note ___, at 602 (“[The purpose [of the government92

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 Congress’s 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 Congress’s ability to structure the work of law-

administration 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 Presidentas 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, Place93

of Agencies, supra note ___, at 578-581.

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. But for Strauss,92

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 Strauss’s vocabulary,

core functions) and the various checks that the actors have on one another. At the93

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



Draft 27

The rules are these: the President must appoint the head of the agency; the “agency in doing94

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.

Strauss, Place of Agencies, supra note ____, at 643; see id., at 641, 667.95

Id. at 641.96

The most explicit references to the consensus ends and means appear in the following97

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 newFederal 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 Powell’s

are many and the guidelines rather complex. They are intended to structure the94

relationship among these actors in order to achieve the consensus objective by

“preserving the tension among the named branches”, so that “no one branch95

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




concurrence, furthermore, is filled with references to the consensus position, see id. at 960-63. The

majority opinion in the Court’s 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 Act’s cancellation provisions violate

Article I, §7, of the Constitution, we find it unnecessary to consider the District Court’s alternative

holding that the Act `impermissibly disrupts the balance of powers among the three branches of

government.’”)

Redish, supra note ___, at 99.98

Id. at 100; see also id. at 114 (“the very fact of the concentration of political power in the99

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 own100

limited authority and the means of checking potential excesses of other governmental units”); id., at 105-

06; Steven G. Calabresi and Joan L. Larsen , One Person, One Office: Separation of Powers or

Separation of Personnel , 79 CORNELL L.R EV. 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 alsoid. at 54-55; Currie, supra note ___, at 23, 31, 32.

Martin H. Redish & Elizabeth J. Cisar, “If Angels Were to Govern”: The Need for 101

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

Though more difficult to detect, formalist commentators likewise subscribeto 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;” that is, separated powers is a98

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.” One set of formalist commentators concisely100

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



Draft 29

`to control itself .’”) (quoting THE FEDERALIST No. 51).

See Vile, supra note ___, at 3 (“The doctrine of separation of powers finds its roots in the102

ancient world, where the concepts of governmental functions, and the theories of mixed and balancedgovernment, 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 textbook’s 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: I NSTITUTIONS AND POLICIES 33-35 (7th ed., 1998)

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 Constitution’s design. But a standard depiction of the field paints deep102

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 Montesquieu’s warnings thatseparation 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




Even with respect to the constitutional status of administrative agencies, the story is not that103

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 isrooted 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.

protects liberty.

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). But, if one takes seriously the way in103

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 andBalancing Power

Consider again the consensus: the objective is avoiding excessive

accumulation of power within a single institution of government; the means to achieve



Draft 31

The OXFORD E NGLISHDICTIONARY provides fifteen definitions of the word power, each with104

its own subparts. WEBSTER ’S NEW I NTERNATIONAL 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 any105

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 E NGLISH DICTIONARY, definition 1(a); see also WEBSTER ’S NEW I NTERNATIONAL106

DICTIONARY (2d ed., unabridged), p. 1936, definition 1.

WEBSTER ’S NEW I NTERNATIONAL DICTIONARY (2d ed., unabridged), p. 1936107

WEBSTER ’S NEW I NTERNATIONAL DICTIONARY (2d ed., unabridged), p. 1936.108

this objective are dispersal of governmental functions among three institutions andequipping each institution--through devices such as the limited Presidential veto,

impeachment, the Senate’s 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. Case law and commentary actually reveal strains of two different105

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.” A second meaning of power, however, is107

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.” Each meaning is associated with a distinct108

substantive conception of separation of powers.

a. Separation-of-Functions




THE FEDERALIST NO. 47, at 269 (Rossiter ed. 1999).

109

See TAN ___-___ (Part III.C.2.)110

There is another reason for separating functions that, as I argue later, see infra TAN __-___ 111

(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.

On one understanding, power refers to the ability to act, that is, the functionsassigned 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,” courts and109

commentators rarely specify why governmental functions must be parceled out to

separate institutions. While this issue will be explored soon, a preview of the110

reasons provided for separating functions is useful. The justifications for separating

functions can be reduced to three : avoiding a concentration of political power in111

one sphere of government; “checking” the exercise of governmental power by each

institution; and, promoting the “rule of law”by prohibiting the same institution from

making the law and enforcing the law.

The separation-of-functions understanding is familiar and fits comfortably withsome of the explanations provided by adherents of the consensus position. The oft-

repeated 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



Draft 33

THE FEDERALIST No. 47, at 260 (Rossiter ed. 1999). See also Gordon S. Wood, THE112

CREATION OF THE AMERICAN R EPUBLIC, 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 the113

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); Metropolitan114

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 need115

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’ position116

is more complicated than the one depicted in the text. Strauss’s 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.

definition of tyranny.” Contemporary adherents of the consensus position have this112

understanding of “undue” accumulation of power. This is the idea that the Supreme113

Court often invokes when it explains the importance of separation of powers. So114

too with many of the formalist commentators. Functionalist commentators are115

complicated in this respect. Professor Strauss subscribes to the separation-of-

functions 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 original understanding of the role of judicial review is a question that has occupied many117

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. R EV. 329; Sylvia Snowiss, JUDICIAL R EVIEW AND THE LAW OF THE CONSTITUTION

(1990); Robert Lowry Clinton, M ARBURY V . M ADISON AND JUDICIAL R EVIEW (1989); see also John

Harrison, The Constitutional Origins and Implications of Judicial Review, 84 VA. L.R EV. 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 President’s limited veto power, the Senate’s 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 Senate’s 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, What’s so Great About Constitutionalism, 93 Nw. U. L.Rev.145, 155 (1998); Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 GEO. W.

L.R EV. 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).

b. 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 Constitution’s grant of specific powers

to permit the checking of one department by another (the limited Presidential veto,

the Senate’s confirmation powers, Congressional impeachment powers, and, at least

today, federal courts’ power of judicial review ) are critical because those are the117

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



Draft 35

See, e.g., Buckley v. Valeo, 424 U.S. 1, 122 (1976); see also cases cited in note ___ supra.118

Clinton v. New York, 524 U.S. 417, 451 (Kennedy, J., concurring); see also Printz v. United119

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).

THE FEDERALIST NO. 51, at 289-90 (Rossiter ed. 1999).120

THE FEDERALIST NO. 51, at 290 (Rossiter ed. 1999).121

rivalry and tension among the departments that assures that those checkingmechanisms 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-balances” goes the stock 118

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.” And, usually, balance is thought to be maintained119

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 institutionswhen 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.” As Madison famously advised, the personal ambitions of members of each120

department were critical to this system: “[a]mbition must be made to counteract

ambition” ; “the interest of the man must be connected with the constitutional rights121




THE FEDERALIST NO. 51, at 290 (Rossiter ed. 1999). For a thoughtful contemporary122

exposition of this idea, see Nourse, supra note ___.

See Buckley v. Valeo, 424 U.S. 1, 122 (1976); see also cases cited in supra note ___.123

See discussion of Strauss, TAN ___-___ (Part I.B.2.); Farina, Statutory Interpretation, supra124

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,125

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 dispositionand 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 framer’s 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

of the place.”122

Today, not only are these Madisonian phrases repeatedly invoked, but their

echo can be heard in the Supreme Court’s habitual reference to separation of powers

as a “self-executing safeguard against the encroachment or aggrandizement of one

branch at the expense of another.” Balance is identified here as the objective of 123

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 department’s 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. For the leading functionalist commentator, tension124

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.” But it is not only functionalists who lean on this125



Draft 37

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 functionalist126

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-of-

powers 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).

Miller, supra note ___, at 54.127

Calabresi & Rhodes, supra note ___, at 1156.128

Vile, supra note ___ , at 168-176; Wood, supra note ___, at 602-06; see also Rakove, supra129

note ___, at 245-46 (making the same point with respect to ideas about the Presidency).

conception of separation of powers. Formalist commentators, as well, invoke the ideaof balance (though often without the word balance itself ) through inter-institutional126

rivalry and competition. One touts the system of separation of powers as creating a

“Newtonian structure of attractive and repulsive political forces” and others refer 127

admiringly to our system as “fragmenting power and institutionalizing conflict.”128

2. Historical Antecedents of Today’s 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 government’s later

manifestation in England’s mixed or balanced constitution. Even though they have129

evolved considerably, the two conceptions contained within today’s consensus bear




Rakove, supra note ___, at 244-87; Forrest McDonald, NOVUS ORDO SECLORUM: THE130

I NTELLECTUAL 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 a131

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 mixed132

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 Montesquieu’s 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 King’s

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

unmistakable markings of these antecedents. Fully tracing the historical developmentof 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. Constitution’s famous blend of two different governmental designs

was not an easy intellectual feat. As Gordon Wood observed, “[this new130

[American] interpretation . . . was tending to blur the once distinct theory of balanced

government among social orders with the doctrine of separation of governmental

departments.” The fusion was uneasy because of the independence of and tensions131

between the theories of separation of powers and mixed or balanced government.132



Draft 39

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 note133

___, 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 and134

Vile’s 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 thedefinitive 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.135

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 men’s 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-seventeenthcentury--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.”)

Indeed, the ideas were considered competing blueprints for governmental design.133

W.B. Gwyn’s 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.” Gwyn and others who have described the early134

intellectual history of separation of powers ideas (a century before Montesquieu’s

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. In that sense at least, the theory of separation of 135

powers can be seen as an effort to find an alternative to or modification of mixed

government as conceptualized in seventeenth century England.




Vile, supra note ___, at 14.136

See TAN ___ - ___ (Part III.C.2.).137

Vile, supra note ___, at 37 (mixed government is “based upon the belief that the major 138

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).

The differences between the two models of government organization can beseen 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. There are136

a variety of reasons for so separating governmental functions. At the highest level137

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. In its classical formulations, in Aristotle’s Politics138

and Polybius’s 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 thecrown), 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,



Draft 41

The description of mixed government in this paragraph draws on the following sources:139

J.G.A. Pocock, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC

R EPUBLICAN TRADITION 66-80 (1975); Wood, supra note ___, at 602; McDonald, supra note ___, at 80-

82; Vile, supra note ___, at 58-82.

Pocock, supra note ___, at 361; see also Michael Mendle, DANGEROUS POSITIONS: MIXED140

GOVERNMENT, THE ESTATES OF THE R EALM, AND THE MAKING OF THE A NSWER TO THE XIX PROPOSITIONS

(1985).

Pocock, supra note ___, at 362-63.141

See McDonald, supra note ___, at 80 (“[I]n thinking of government, Americans followed a142

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 Aristotle’s 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

and government will be stable.139

Translated to seventeenth century England, on the eve of the formal start of

the Civil War, the mixed constitution--as famously declared in Charles I’s 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.” This was a dramatic re-explanation of 140

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 I’s 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.” Crown-in-parliament is thus explained as a141

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. But the categories of three are, to state the

142




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 theCommons.”); see also Vile, supra note ___, at 16.

See Rakove, supra note ___, at 245-46; Vile, supra note ___, at 14.143

The blend of the two ideas began in England. See especially Vile, supra note ___, at Chapts.144

3 and 5; Gwyn, supra note ___, at 100-128.

See TAN ___-___ (Part I.A.).145

See Vile, supra note ___, at 166 (“Thus was the whole emphasis of the mid-eighteenth-146

century 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 threeCapital 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.

obvious, different. The divergence between the ideas is starkly illustrated by thedistribution 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. Remnants of 144

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. Though there are traces of 145

mixed government’s 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



Draft 43

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

147

See, e.g., Wood, supra note ___, at 602-615; Vile, supra note ___, at 162-92.148

See Vile, supra note ___, at 131-92; Gwyn, supra note ___, at 100-128.149

See TAN ___-___.150

separation--limited Presidential veto, Senate’s advice and consent, Congress’simpeachment powers--so that one department can check another. Those departures147

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

Today’s 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-of-

functions) as well as a modified version--without the class bias--of mixed government

(balance-of-power). Historians have written about the Constitution’s marriage of

these two ideas. Suffice it to say that the marriage is a troubled one. One difficulty149

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 functionally-differentiated 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




THE FEDERALIST NO. 51, at 289-90 (Rossiter ed. 1999).151

See Gwyn, supra note ___, at 3, 26.152

social class--to the institution in which they find themselves? Perhaps they do, but theconditions 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 today’s conceptions and their forerunners

should not obscure important evolution in the ideas. In particular, today’s balance-of-

power 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: Madison’s

reference in THE FEDERALIST NO. 51 to the “necessary constitutional means, and

personal motives, to resist encroachments of the other” departments evokes the151

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. Today’s Muddling of Distinct and Conflicting Conceptions

Whatever the relationship between the historical precursors and today’s

conceptions, they do share one similarity: just like their historical forerunners,152

today’s conceptions of separation-of-functions and balance-of-power areinappropriately 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



Draft 45

Buckley v. Valeo, 424 U.S. 1, 122 (1976); see supra note ___.153

New York v. United States, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring).154

Greene, supra note ___, at 138.155

Redish, supra note ___, at 105.156

Id. at 106.157

The two conceptions associated with the distinct meanings of power are oftenconflated or treated as obviously related. Consider some illustrations of this tendency.

The Supreme Court’s 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 another” fails to identify the differences between153

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 Kennedy’s 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.” Again, the system of separation of powers is equated with154

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.” Another commentator notes that preserving political liberty155

requires that “the legislative and executive powers cannot be united in the same

body.” Here is a straightforward statement of the need to separate functions.156

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 levelof power sufficient to allow it to subvert popular sovereignty and individual

liberty.” Does “level” of power mean, solely, the exercise of more than one157

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.




Calabresi & Rhodes, supra note ___, at 1156.158

See discussion of Strauss, TAN ___-___ (Part I.B.2.).159

Strauss, Place of Agencies, supra note ___, at 597; id., at 597-604.160

See TAN ___-___ (Part I.B.2.).161

Strauss does acknowledge that there is independent reason (that is, a reason distinct from the162

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

Another set of commentators refers to our system of “fragmented power andinstitutionalized competition.” “Fragmented power” is a reference to the allocation158

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. According to Strauss, the “text and context”159

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.” Such tension, Strauss maintains, can be achieved160

without resort to a thoroughgoing separation of functions. Strauss then identifies a

set of requirements for administrative agencies that, he asserts, will guarantee that thetension 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. The162



Draft 47

to individualized proceedings. That, however, is too narrow an understanding of the independent reasons

for separating functions. See TAN ___-___ (Part III.C.2.).

See TAN ___-___ (Part III.C.2.).163

See TAN ___-___ (discussing the ways commentators conflate the two ideas); Calabresi &164

Rhodes, supra note ___, at 1156 (suggesting a relationship between the two conceptions by referring tofragmented 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.”)

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. Second, allocating government164

functions to different departments, along with the checks like the veto and




Martin Flaherty argues that this idea captures the founding understanding. See Flaherty, supra

165

note ___. Others have made the same argument, although Flaherty’s 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 ___.

impeachment powers, may yield balance among the departments. This latter view165

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 institution’s 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 makesdecisions; 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;



Draft 49

and, individuals with that same set of credentials are among the court system’s mostimportant 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 decision-

making 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 becompetition 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.




One might even put the argument more strongly: functional differentiationcould 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 world’s fastest runner is not as competitive with the

world’s fastest high jumper as he is with the world’s 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 establishinga 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 51

government.

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 legislature’s choice unconstitutional. The

executive’s role in the implementation of statutes, and the judiciary’s 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 decision-

making, 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-in-

Chief 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 andthe 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




U.S. CONST. art. II, § 2, cl. 2.166

enterprise. Articulating more concretely the set of doctrinal concerns prompted byeach 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 isthat 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 President’s ability to remove, at-will, those at the



Draft 53

Myers v. United States, 272 U.S. 52 (1926); Humphrey’s Executor v. United States, 295167

U.S. 602 (1935).

Buckley v. Valeo, 424 U.S. 1 (1976).168

Bowsher v. Synar, 478 U.S. 714 (1986).169

Morrison v. Olson, 487 U.S. 654 (1988).170

See TAN ___-___ (Part III.A.1.b.).171

helm of certain agencies ; the permissibility of direct Congressional participation in167

the appointment or removal of government officials that, for example, administer 168 169

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 President’s 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-of-

power 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. But among the171

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




For a different argument, one that is based on a re-reading of Madison’s famous THE172

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, this173

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 thatgroup of scholars that defends Congress’ ability to insulate certain executive department officers from at-

will 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.

Humphrey’s Executor v. United States, 295 U.S. 602 (1935).174

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 separation-

of-functions conception should be, chiefly, concerned whether the relevant official or

institution is exercising executive power. If the officer is exercising something173

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. Certainly, the President has an argument--though not necessarily a174

dispositive one--that, if the FTC is exercising executive powers, then the President



Draft 55

As I suggest in the text, the President’s ability to fire an officer at-will does not inexorably175

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 Humphrey’s

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 President’s 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 anagent. That expansion might also warrant some limitations on the President’s 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 President’sability to remove officers, it means that even formalists don’t 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.

487 U.S. 654 (1988).176

478 U.S. 714 (1986).177

must have the ability to remove, at-will, Commissioners of the FTC. But, if the175

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, the Comptroller General at176

issue in Bowsher, and the Federal Election Commission members at issue in Buckley177




424 U.S. 1 (1976).178

v. Valeo. On the separation-of-functions conception, the primary question in each178

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 President’s ability

to appoint and remove commissioners of the FTC. The adherent of the balance-of-

power 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 notdiminished, if the Commissioners can be removed at-will, then the balance-of-power

conception and the separation-of-functions conceptions diverge. The balance-of-

power 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 StatesDepartment of Agriculture. The Department is headed by a Secretary who serves at



Draft 57

7 U.S.C. § 2202.179

See, e.g., Rules of Practice Governing Formal Adjudication Proceeding Instituted by the180

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 the181

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 theselarger 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.R EV. 491, 506-514 (1987).

the pleasure of the President. The balance-of-power conception is not concerned179

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. It thus represents the worst case scenario, that is, the accumulation180

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-of-

power 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. Commentators uniformly181




Peter Shane, Political Accountability in a System of Checks and Balances: The Case of 182

Presidential Review of Rulemaking, 48 ARK . L. R EV. 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 legislature’s 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 note183

___, at 196.

See Bruff, supra note ___, at 506-07; Sargentich, Limits of the Parliamentary Critique, supra184

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.185

Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, U.

OF CHI. L.R EV. (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.

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. At other times, accountability refers to a more183

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. For our purposes, however, it is only important to observe that185



Draft 59

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 ___.

accountability does not make the two conceptions studied here compatible with oneanother, 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 thetwo 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-of-

functions 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.




Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring);186

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).

THE FEDERALIST NO. 47, at 244 (Rossiter ed 1999.).187

Id.; see also footnote ___, supra (observing that some version of this phrase is invoked in188

nearly every modern separation of powers opinion).

Buckley v. Valeo, 424 U.S. 1, 122 (1976); see also footnote ___, supra (observing that this189

phrase, too, is invoked in nearly every modern separation of powers opinion).

See TAN ___-___ (Part III.B.1.).190

Merrill, supra note ___, at 225 (footnotes omitted).191

Consider a few examples. There is Justice Jackson’s famous statement, quotedrepeatedly 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.” Likewise, recall the two phrases186

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,” namely, that “the accumulation of 187

all powers legislative, executive and judiciary in the same hands . . . . may be justly

pronounced the very definition of tyranny.” And, there is, on the other, the opaque188

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.” For their part,189

commentators muddle the two conceptions together and are hence not much more

helpful than the courts. Readers of these phrases do not know what they mean,190

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



Draft 61

See e.g., Lawson, supra note ___, at 1248 (first observing that “The constitutional separation192

of powers is a means to safeguard the liberty of the people” and then invoking Madison’s 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. R EV. 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. R EV. 612, 645-48 (1996).

See, e.g., Redish, supra note ___, at 99 (separation of powers is “designed to reduce the193

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.”)

But the conceptual difficulties of the current consensus go beyond a generallack 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 functionally-

differentiated 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. Functional separation, at the institutional level, is a way to192

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. Repeated

193

use of that ambiguous word, power, sheds little light. There is this obvious point:




separating functions is not necessary to disperse power . That is, power can bedispersed 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 waysto 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. Whatdistinctive 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



Draft 63

Paul R. Verkuil, Separation of Powers, the Rule of Law and the Idea of Independence, 30194

WILLIAM & MARY L. R EV. 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.195

Goldwin and Art Kaufman, eds.).

Verkuil, supra note ___, at 303-04 (describing “counterefficiency principle” as a dominating196

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. 417,197

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.”)

justification for the separation-of-functions conception, at least today. One reason toseparate 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. But, among today’s adherents of the194

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 inefficiency ; defenders of 195

the system, in response, largely concede the point and turn it around--they cast

inefficiency as a virtue, not a vice, of the system. Separating functions is designed196

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




Currie, supra note ___, at 19.198

See Redish, supra note ___, at 130 (“[B]y requiring that those who make the laws cannot199

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 ___,

200

at 55, 85-86, 94.

Miller, Rights and Structure, supra note ___, at 199; Lessig & Sunstein, supra note ___, at201

106-110.

Lessig & Sunstein, supra note ___, at 106-110.202

David Currie offers a resonant version: “The distribution of these powers among threeseparate 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.” This thesis is worthy of extended analysis because198

it is a common--even pervasive--reason given for institutional separation of

government functions. Sometimes, this defense of separating functions is presented

(like Currie’s formulation) as about preventing arbitrary government action ; other 199

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, to limit factions, or to200 201

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



Draft 65

should not control all governmental power; to avoid that, the system provides threedifferent 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 executivemay 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

executive’s decision to enforce, the judiciary’s 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 alaw, 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




See Administrative Procedure Act, § 701(a)(1) (chapter of APA authorizing review of 203

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).

See Mashaw, Merrill, & Shane, supra note ___, at 901-948.204

See TAN ___-___ (discussing view that prosecutorial discretion derives from the205

constitution).

See generally, Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights,206

95 HARV. L.R EV. 1193 (1982); Cass R. Sunstein, Section 1983 and the Private Enforcement of Federal

Law, 49 U. CHI. L.R EV. 394 (1982).

See 42 U.S.C. § 2000e et. seq.207

See, e.g., 15 U.S.C. §§ 77k, 771, 78i (express authorization of private causes of action);208

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 Commission’s

review of certain executive actions. In addition, there are a variety of common law,203

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. In these examples, the204

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. Private206

parties are authorized to enforce a variety of federal laws: for example, employment

discrimination laws, securities laws, and environmental laws. Proceeding under 207 208 209



Draft 67

Authority, 107 HARV. L.R EV. 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.R EV.

385 (1982).

See, e.g., Clean Air Act, 42 U.S.C. § 7604; Clean Water Act, 33 U.S.C. § 1365; see also209

Michael S. Greve, The Private Enforcement of Environmental Laws, 65 TULSA L.R EV. 339 (1990).

See Cannon v. Univ. of Chicago, 441 U.S. 677 (1979); see also Susan J. Stabile, The Role210

of Congressional Intent in Determining the Existence of Implied Rights of Action, 71 NOTRE DAME

L.R EV. 861 (1996).

See, e.g., Kimel v. Fla. Bd. of Regents, 120 S.Ct. 631 (2000) (Congress cannot abrogate state211

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

212

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);213

Constitutionality of the Qui Tam Provisions of the False Claims Act, 13 OP. OFF. LEGAL COUNSEL 207

(1989).

these laws, private parties bring suit, and the judgments in those suits determine therights 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

action ; the limitations on private enforcement that flow from sovereign immunity210

when the defendant is a state or federal government actor ; the potential211 212

constitutional limitations on so-called “whistle blower” or qui tam suits, in which a

private party proceeds in the name of the government ; and the Article III case-or-213

controversy requirements that sometimes prevent Congress from authorizing citizen




Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).214

United States v. Armstrong, 517 U.S. 456, 463-465 (1996); Wayte v. United States, 470215

U.S. 598 (1985); cf. Heckler v. Chaney, 470 U.S. 821 (1985) (agency’s refusal to take enforcement

action is presumptively nonreviewable).

Erwin Chemerinsky, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES §9.2 (1997).216

There are many cases that illustrate the point, but the classic ones include Railway Express217

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).

suits. Even so, these rules that sometimes limit private enforcement should not214

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 prosecutor’s 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. Consider, also, challenges under the Equal Protection Clause to social and215

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.



Draft 69

There is a still deeper problem with the coordination thesis. Consider thosecases 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, second-

guess 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

Senate’s confirmation powers, and Congress’ impeachment powers. Return to the

earlier example to see the point: assuming that the hypothesized “arbitrary” law thatCongress 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




487 U.S. 654, 705-08 (Scalia, J., dissenting); cf. United States v. Armstrong, 517 U.S. 456,218

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 Legal219

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)).

department of another are specific and circumscribed. The “checking” featureimplemented 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 one’s 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. Olson --that218

the executive’s prosecutorial discretion emanates, not from pragmatic considerations,

but from the Constitution itself. On this view, Congress could not pass a statute219



Draft 71

The view put forward by Justice Scalia and the Office of Legal Counsel goes far beyond the220

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.R EV. 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 theConstitution), 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.”

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




William Gwyn uses this characterization. See Gwyn, supra note ___, at 16, 42.221

Gwyn, supra note ___, at 35 (“If the same persons both made and executed the law,222

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

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 judiciary’s 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. This rationale for is best understood in the context221

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. To state the idea222



Draft 73

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 note223

___, at 646 and nn. 165-168 (attributing this idea to, among others, Locke, Montesquieu, and

Blackstone).

THE FEDERALIST NO. 47, at 271 (Rossiter ed., 1999).224

See TAN ___-___. For an example of a commentator who provides a more precise225

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).

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. And unlike223

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. As this examination has demonstrated, however, the contention that a225

combination of government functions threatens liberty is open to many meanings. Itcould 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




Epstein, supra note ___, at 127-30; Gwyn, supra note ___, at 35-36, 104-105 (both observe226

that this passage if often invoked and poorly understood; both claim that the passage means the rule of

law idea identified in the text).

See TAN ___-___ (Part I.B.1.)227

See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (striking down provision of the228

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.R EV. 731-1018 (1999).

play is lost. But, as some historians have demonstrated, this passage, andMontesquieu 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. Two examples227

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. It is not only, however, that it is228

difficult to tell the difference between lawmaking and law implementation. The point



Draft 75

See supra note ___.229

See, e.g, Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law?, 110 HARV. L.R EV.230

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 criminallaw 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.R EV. 569 (1972).

See TAN ___-___ (Part I.B.1.).231

may be deeper than that: it may be that a distinction between lawmaking and lawimplementation 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. At the same time, decisions by229

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 thelaw. This is not to assert that our acceptance of the combination of functions is the231

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




See Administrative Procedure Act § 556(b); Mashaw, Merrill, & Shane, supra note ___, at232

407-410.

Withrow v. Larkin, 421 U.S. 35 (1975).233



within an agency, and the Due Process Clause sometimes operates to require232

separation of functions within agencies. Neither of these doctrines, though, require233

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-of-

functions 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, thatseparated power (or functions) leads to balanced power --has heretofore supplied234

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. Stripped of those explanations235

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



Draft 77

TAN ___-___ (Part III.A.2.).236

For an introduction to the complexity of the problem of measuring institutional power, see237

Stephen Ansolabehere and James M. Snyder, Jr., Money and Institutional Power , 77 TEX. L. R EV. 1667

(1999); Keith Kreihbiel, PIVOTAL POLITICS: A THEORY OF U.S. LAWMAKING (1998).

maintained.

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. Whatever the source of the236

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. One can suggest some237

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




See TAN ___-___ (Part III.A.2.)238

there is an explicit conflict--say a veto by the President and an override of that vetoin 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 asideand 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-of-

power 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. Once again, the muddle238

of the consensus has prevented us from seeing this deficiency. The consensus would



Draft 79

See TAN ___-___ (Part III.B.2.a.).239

suggest that functional separation, by itself, is enough to create tension andcompetition. But, as demonstrated earlier, it is untenable to treat functional

separation as a way of achieving that tension and competition. Stripped of that way239

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 consensussimultaneously 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 betweenthem. 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




See Ackerman, supra note ___.240

path is the one Professor Bruce Ackerman urges in his provocative head-on challengeto the U.S. system of separation of powers in which he vigorously defends a modified

parliamentary system. This Article will not take up the latter steps on the road to240

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 whowould 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 arecreated and maintained. Only once that work is completed could courts be able to

assess whether an arrangement would dangerously dilute tension and competition.



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.

The Real Separation in Separation of Powers Law (SSRN)

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