Characterizing Power for Separation-of-Powers Purposes

22 Pages Posted: 25 Jun 2018  

Tuan Samahon

Villanova University - School of Law

Date Written: April 3, 2018

Abstract

The U.S. Constitution parcels "legislative," "executive," and "judicial" powers among the separate branches of the federal government, but leaves those powers undefined. Accordingly, characterizing exercises of power becomes an important threshold inquiry in separation-of-powers disputes. This symposium Essay canvasses four competing judicial approaches to the characterization of power: functional inquiry; identity-of-the-officer formalism; historical induction; and skepticism. In this area, Justice Scalia's formalism has been particularly influential but created considerable tension with original public meaning originalism. This Essay explains how Scalia's formalism led to his embrace of delegation and concludes by cautioning against judicial oversimplification in the characterization inquiry.

Keywords: separation of powers, characterizing power, formalism, functionalism, historical induction

Suggested Citation

Samahon, Tuan, Characterizing Power for Separation-of-Powers Purposes (April 3, 2018). University of Richmond Law Review, Vol. 52, 2018. Available at SSRN: https://ssrn.com/abstract=3200122

Tuan Samahon (Contact Author)

Villanova University - School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

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