A Fourth Way?: Bringing Politics Back into Recess Appointments (and the Rest of the Separation of Powers, Too)
12 Pages Posted: 24 May 2015 Last revised: 26 May 2015
Date Written: May 23, 2015
Abstract
It sounds odd when stated forthrightly, but most separation-of-powers discussions are largely inattentive to politics. Formalist theories tend to assert that the distribution of powers is set in stone; in contrast, functionalist theories tend to focus on abstract considerations of comparative institutional competence or on ossifying past practice into a "historical gloss" binding the present. Both approaches generally ignore the live political context in which the branches continually compete with one another for decision-making power.
"Pragmatic formalist" hybrids, like that proposed by Ron Krotoszynski in his contribution to the Duke Law Journal's annual administrative law symposium, while broadening the list of factors considered in any given case, nevertheless continue to omit live political contexts and concerns. This brief piece, a response to Krotoszynski's analysis of recess appointments, argues for bringing politics back into separation-of-powers analysis. In the process, it previews a number of themes and topics from the author's current book project, Congress's Constitution: Legislative Authority and the Separation of Powers (under contract with Yale Univ. Press).
Keywords: separation of powers, recess appointments, Noel Canning, Congress, politics
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