Subordination and Separation of Powers

Abstract

This Article calls for the incorporation of antisubordination into separation-of-powers analysis. Scholars analyzing separation-of-powers tools—the laws and norms that divide power among government actors—consider a long list of values ranging from protecting liberty to promoting efficiency. Absent from this list are questions of equity: questions of racism, sexism, and classism. This Article problematizes this omission and begins to rectify it. For the first time, this Article applies critical-race and feminist theorists’ subordination question—“are marginalized groups disproportionately burdened?”—to three important separation-of-powers tools: legislative appropriations, executive conditions, and constitutional entrenchment. In doing so, it reveals that each tool entails subordination by creating generalized benefits at the expense of marginalized groups. It illustrates this skewed distribution through novel case studies tracing harm to Native peoples to the use of appropriations to empower Congress, harm to residents of Puerto Rico to the use of executive conditions to empower the President, and disparate coronavirus harms to Black communities to the use of nonentrenchment to empower the future and disempower the “dead hand” of the past.

The Article’s descriptive insight that separation-of-powers tools can and do entail subordination motivates its call for the incorporation of antisubordination into both institutional and doctrinal separation-of-powers analysis. The antisubordination movement’s rights-focused approach has stagnated. By shifting attention to other political actors, the separation of powers offers a desirable, upstream means through which to pursue the goal of antisubordination. Moreover, considering antisubordination in separation of powers analysis has historical precedent, is consistent with the aspiration for “neutral principles,” and advances already established separation-of-powers values such as liberty and accountability.

Incorporating antisubordination into the separation of powers is also achievable. The Article specifies interventions for institutional analysis, doctrinal analysis, and separation-of-powers theory. For institutional analysis, two new steps are needed. First, when allocating power brings particularized costs, explore their distribution. The subordination question (“who pays?”) should be as familiar to separation-of-powers analysis as the legal-process question (“who decides?”). This question might be used to interrogate particular separation-of-powers tools, categories of such tools, or overarching doctrinal and conceptual approaches. Second, institutional actors should consider not just whether a separation-of-powers tool is cost-justified, but also whether it might be replaced with alternatives whose harms are fairly distributed. Widespread harm can be a feature rather than a bug. It is better, all else being equal, that everyone be hurt to protect liberty or avoid tyranny than only the marginalized. These questions are also relevant for doctrinal analysis. Antisubordination should be a counterweight to courts’ use of historical gloss. This is because antisubordination requires a new, creative agenda for separation-of-powers theory that focuses not on evaluating existing arrangements or the relative power of the branches, but instead on developing alternative arrangements that maintain the balance of power without imposing skewed costs. The Article illustrates these interventions with novel prescriptions for ongoing legal controversies about the debt ceiling, foreign affairs, legislative standing, and government shutdowns.

Keywords: separation of powers, health law, law and political economy, critical race theory, vulnerability theory, appropriations, administrative law, constitutional law, Congress