43 Pages Posted: 16 Aug 2015 Last revised: 12 Nov 2015
Date Written: August 14, 2015
This Article explores the possibility of constitutional self-help, whereby one arm of government takes otherwise impermissible action to redress another arm’s constitutional wrong. As David Pozen provocatively suggests in Self-Help and the Separation of Powers, this system may already be upon us. President Obama, for instance, has pushed against constitutional and statutory limits in immigration, health care, education, environmental regulation, and more — proclaiming “We Can’t Wait!” for Congress to “do its job.” Meanwhile, Republican detractors in Congress often cite the President’s failure to “faithfully execute” the law as a reason for their intransigence, in the form of blocking legislation, blocking presidential nominees for cabinet-level positions, and otherwise. In these recursive showdowns, each branch lays blame with the other to explain or justify their own questionable action. Prescriptively, and more ambitiously, Pozen suggests legalizing separation of powers self-help. This move would transform federal interbranch self-help from something that the President and Congress do to something they may do lawfully under certain circumstances. This Article intervenes.
Pozen dexterously navigates his thesis through a number of separation-of-powers thickets, but he does not factor in federalism. Filling that void, this Article constructs a two-dimensional model of “self-help structuralism” — one that accounts for federalism and separation of powers simultaneously. More specifically, this Article illustrates how states engage in self-help too, often in looping feedback with the federal branches. Appreciation for this cross-dimensional dynamic offers better purchase on the idea that constitutional self-help is happening. Yet it also instigates a fresh mix of anxieties over whether to legalize the practice. For example, should states also be licensed to invoke self-help against each other, or against the federal government? Can federal acts of self-help preempt state law? More generally, what meta-principles should guide the analysis when our dual commitments to federalism and separation of powers collide? This Article takes a first pass at these and related questions. But just asking them advances the idea of constitutional self-help to new ground. Whatever political, legal, and academic battles over constitutional self-help lie ahead, they will need to be fought on the field of “self-help structuralism.”
More broadly, this Article contributes to a larger project of cross-dimensional structuralism. Creative solutions to problems in public governance along one dimension (whether federalism or separation of powers) can have structural spillovers into the other. When separation of powers and federalism overlap and intersect — and, increasingly they do — a cross-dimensional approach of the type modeled here can be analytically necessary. Innovations that may look good in isolation can take on new hue when assayed in full structural context.
Keywords: Separation of Powers, Federalism, Self-Help, Structuralism, Cross-dimensional Structuralism, We Can't Wait, Rule of Law, Nullification
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