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Balance-of-Powers Arguments and the Structural Constitution

44 Pages Posted: 20 Nov 2012  

Eric A. Posner

University of Chicago - Law School

Date Written: November 20, 2012

Abstract

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.

Suggested Citation

Posner, Eric A., Balance-of-Powers Arguments and the Structural Constitution (November 20, 2012). University of Chicago Institute for Law & Economics Olin Research Paper No. 622. Available at SSRN: https://ssrn.com/abstract=2178725 or http://dx.doi.org/10.2139/ssrn.2178725

Eric A. Posner (Contact Author)

University of Chicago - Law School ( email )

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United States
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HOME PAGE: http://www.law.uchicago.edu/faculty/posner-e/

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