Litigating the Separation of Powers

51 Pages Posted: 1 Apr 2021

See all articles by Elizabeth Earle Beske

Elizabeth Earle Beske

American University - Washington College of Law

Date Written: February 25, 2021


The Roberts Court, in marked contrast to its predecessor, has embraced the role of the federal judiciary in resolving clashes between coordinate branches, but it has done so without adequately grappling with Rehnquist-era justiciability hurdles. Constrained by Raines v. Byrd, the 1997 case in which Chief Justice Rehnquist purported in broad strokes to shut down institutional standing, the Roberts Court has relied primarily on individual litigants to raise separation-of-powers claims as defenses in enforcement proceedings. Primary reliance on individual litigants is problematic. First, it is difficult to square with conventional conceptions of injury in fact. Individual litigants have traditionally lacked litigable interests in properly appointed or removable regulatory decision makers, and the separation-of-powers issues they assert often have no bearing on the substantive results of their proceedings. Second, the Court’s admitted effort to incentivize these litigants by offering them new hearings before different decision makers rests uneasily with its reluctance to create private attorney general mechanisms or implied remedies in other contexts. Finally, reliance on individual litigants is necessarily scattershot. Some regulatory entities do not act directly on individuals, and certain constitutional claims, like those under the Emoluments Clause, may be difficult to conceive in individual terms. Because primary reliance on individual claimants to assert separation-of-powers claims is both practically and doctrinally problematic, this article urges reexamination of Raines to decouple it both from its dicta and its anachronistic shut-it-down mood, making the case that limited institutional standing is consistent with existing doctrine where an institutional actor claims the actions of another branch have deprived it of a constitutionally-prescribed role in the process and plaintiffs are sufficiently numerous that, had they played their prescribed role, the result would have been different. Raines, this article contends, must be seen for what it actually does, and much of its dicta should be understood as a relic of another Court, another era, and another conception of the judicial function.

Keywords: federal courts, separation of powers, justiciability, standing, political question doctrine

Suggested Citation

Beske, Elizabeth Earle, Litigating the Separation of Powers (February 25, 2021). Alabama Law Review, Forthcoming, Available at SSRN:

Elizabeth Earle Beske (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Ave NW, Washington, DC
4300 Nebraska Ave NW, Washington, DC
Washington, DC 20016
United States

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