Characterizing Power for Separation-of-Powers Purposes
22 Pages Posted: 25 Jun 2018
Date Written: April 3, 2018
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
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