Checks, Not Balances

75 Pages Posted: 28 Dec 2022 Last revised: 18 Mar 2023

See all articles by Joshua Macey

Joshua Macey

Yale Law School

Brian Richardson

Cornell Law School

Cornell Law Library RPS Submitter

affiliation not provided to SSRN

Date Written: December 19, 2022

Abstract

Critics of the administrative state who would revive the nondelegation doctrine and embrace the unitary theory of executive power often assume that each branch’s powers are capable of precise definition, functionally distinct from the others, and that the formal boundaries between each branch are sacrosanct. This Article situates these critiques in Founding Era and nineteenth century debates about the structure of the Constitution. In the 1780s, the AntiFederalists objected to the Constitution for failing to enumerate a precise taxonomy of each branch’s powers, for failing to specify that each branch’s powers were exclusive, and for failing to make government officials sufficiently accountable to the voting public. The drafters responded that the Anti-Federalist approach would neither support effective government nor prevent the branches from acting tyrannically. Rather than develop a scheme of discrete and precisely divided powers, as the Anti-Federalists proposed, the drafters preferred precise rules of inter-branch coordination to ensure that no one branch dominates the others. This debate continued throughout the nineteenth and early twentieth centuries, with influential legal minds such as Daniel Webster and Joseph Story rejecting the Anti-Federalist theory of separation of powers.

We call this a theory of separation of powers based on a principle of antidomination. On this view, the separation of powers is breached only if one branch deprives another of its procedural capacity to check the others. We further argue that this theory (a) provides a plausible account of the Framers’ understanding; (b) has had significant purchase in the development of interbranch relations since the Founding and thus can serve as a kind of rational reconstruction of historical practice; and (c) is consistent with the relevant constitutional text and the overall constitutional structure.

Suggested Citation

Macey, Joshua and Richardson, Brian and RPS Submitter, Cornell Law Library, Checks, Not Balances (December 19, 2022). Texas Law Review, Forthcoming, U of Chicago, Public Law Working Paper No. 824, Available at SSRN: https://ssrn.com/abstract=4307216

Joshua Macey (Contact Author)

Yale Law School ( email )

127 Wall Street
New Haven, CT 06510
United States

HOME PAGE: http://https://law.yale.edu/joshua-macey

Brian Richardson

Cornell Law School ( email )

Cornell Law Library RPS Submitter

affiliation not provided to SSRN

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