Beyond Powers and Branches in Separation of Powers Law
56 Pages Posted: 30 Nov 2001
This Article critiques the central commitments of contemporary separation of powers theory and doctrine. It then suggests more promising ways to think about separation of powers disputes, suggestions that derive from the criticisms offered here.
The separation of powers provisions of the Constitution are understood as a way of controlling the exercise of state power by fragmenting it among three different institutions and guaranteeing that fragmentation. Conventional separation-of-powers analysis relies on two mechanisms to achieve and maintain the dispersal of state power: separating legislative, executive, and judicial power in three different branches and preserving a balance among those branches. There is vigorous disagreement about the proper characterization of any given dispute, but there is little controversy about the proper framework within which that debate should proceed.
There should be. The embarrassing secret is that both commitments at the center of separation-of-powers doctrine are misconceived. The effort to identify and separate governmental powers fails because, in the contested cases, there is no principled way to distinguish between the relevant powers. The effort to maintain balance among the branches fares no better. We do not know what balance means, how to measure it, or how to predict when it might be jeopardized. The deficiencies are partly explained by the most fundamental difficulty with claims about balance among the branches. Inquiring about inter-branch balance is incoherent because it assumes that branches of government are unitary entities with cohesive interests, but that is not true. The branches are made up of individuals and sub-institutions with varying incentives that do not neatly track the institution within which they are located.
The criticisms offered here reveal that we are thinking about questions of horizontal constitutional structure in the wrong way. Taking seriously the failings of current ideas offers at least two important lessons for its reconceptualization. The most significant lesson is that, if one is interested in fragmenting state power and assuring that it remains fragmented, the failure of the conventional approaches is of little moment. In the course of noticing that there is no such thing as three essential powers exercised by three undifferentiated branches, we will also notice that government authority is fragmented, widely so, albeit not according to the three-powers-in-three-branches formula. The other lesson is that current efforts go about the ambitious undertaking of matching particular powers with specific decisionmakers in the wrong way. That effort must start with an understanding of how those decisionmakers might exercise that authority, which requires a fine-grained appreciation of the forces that push and pull government actors in one direction or another. A doctrine built around such understandings will offer no easy answers, but it will at least ask the right questions.
Suggested Citation: Suggested Citation