Balance-of-Powers Arguments and the Structural Constitution
Eric A. Posner
University of Chicago - Law School
November 20, 2012
University of Chicago Institute for Law & Economics Olin Research Paper No. 622
Balance-of-powers arguments are ubiquitous in judicial opinions and academic articles that address separation-of-powers disputes over the president’s removal authority, power to disregard statutes, authority to conduct foreign wars, and much else. However, the concept of the balance of powers has never received a satisfactory theoretical treatment. This essay examines possible theories of the balance of powers and rejects them all as unworkable and normatively questionable. Judges and scholars should abandon the balance-of-powers metaphor and instead address directly whether bureaucratic innovation is likely to improve policy outcomes.
Number of Pages in PDF File: 44
Date posted: November 20, 2012
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