Separation of Powers and Centripetal Forces: Implications for the Institutional Design and Constitutionality of Our National Security State
83 University of Chicago Law Review 199 (2016)
22 Pages Posted: 12 May 2016 Last revised: 21 May 2016
Date Written: May 11, 2016
Today’s national-security state is increasingly highly concentrated, centralized, and consolidated across at least three dimensions: the public-private divide, the federal-state divide, and the political–civil servant divide within government agencies. Each of these dimensions of concentration, centralization, and consolidation has been individually examined. Yet notwithstanding careful study, there has been little appreciation of the potentially reinforcing effects of consolidation occurring along any two, let alone all three, of the relevant dimensions. That is to say, scholars and policymakers have generally zeroed in on only one dimension of consolidation at a time — and they have assessed the pros and cons of public-private, federal-state, or intra-agency consolidation against what they treat as an otherwise static backdrop.
This Essay insists that we need to think more capaciously and systemically — to take stock of all of the moving parts and gauge how they work together. We need to do so for purposes of smarter, more careful institutional design that accounts for the multiple dimensions on which federal executive power has become concentrated and consolidated. What’s more, we need to do so for reasons pertaining to constitutional separation of powers. The public-private, federal-state, and intra-agency lines of separation are each constitutionally salient. Even if the weakening or collapsing of any one of those lines of separation does not by itself rise to the level of a constitutional transgression, the weakening or collapsing of multiple lines of separation within a given substantive policy domain may well threaten our constitutional order.
In short, this Essay proffers a multidimensional, aggregate-effects theory of constitutional structure. The sum total of individually minor incursions (on private, state, and bureaucratic autonomy) might constitute a major one as the President and her agency heads accumulate power along multiple dimensions, picking up bits and pieces from dragooned corporations, from co-opted states and municipalities, and from a defanged federal workforce effectively serving at the pleasure of the Administration.
Keywords: separation of powers, constitutional law, national security law, administrative law, institutional design, organizational theory
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