55 Pages Posted: 28 Mar 2023
Date Written: March 27, 2023
When federal judges are called on to adjudicate separation-of-powers disputes, they are not mere arbiters of the separation of powers. By resolving a case (or declining to), federal courts are participants in the separation of powers. Stemming from this idea, this Article introduces the concept of separation-of-powers avoidance. Judges employ familiar techniques to avoid compelling high-level coordinate-branch officials to act.
Undertaking an original review of cases ranging from executive privilege to Congress’s subpoena power to congressional standing, this Article documents and models separation-of-powers avoidance. It explores how courts have dug a protective moat around the separation of powers through transdoctrinal principles that can, if taken beyond the courtroom, distort the interpretation of the separation of powers. From constitutional rights to statutory interpretation, scholarship has recognized that judicial expositions of legal principles are not necessarily coterminous with underlying law.
This Article extends that insight to the structural Constitution. It then theorizes this form of avoidance as a phenomenon reflecting uniquely judicial considerations. Finally, it offers normative prescriptions for the resolution of separation-of-powers conflict outside of federal courts. Separation-of-powers doctrine refracted through the lens of avoidance should not be taken outside of the courtroom. Bilateral negotiations between Congress and the President should not incorporate this form of doctrine, and both public and legal discourse should adjust to account for avoidance’s distortionary effects on the structural Constitution.
Keywords: separation of powers, federal courts, constitutional law, congress, OLC, executive privilege, supreme court
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