The Limits of Formalism in the Separation of Powers

16 Journal of Legal Analysis 178 (2024)

33 Pages Posted: 10 Jul 2024 Last revised: 19 Nov 2024

See all articles by Shalev Gad Roisman

Shalev Gad Roisman

University of Arizona - James E. Rogers College of Law

Date Written: June 21, 2024

Abstract

Formalism is the dominant mode of separation of powers analysis on the Supreme Court and one of two paradigmatic approaches in the academy. It seeks to resolve disputes between Congress and the President by asking which branch has exclusive power over the relevant matter. This method is thought to work because, if one branch has exclusive power over the matter, then, by definition, the other branch does not. Although this method is coherent and workable in some relatively straightforward cases, it is of no use in areas where both branches' "exclusive" powers overlap-as formalists routinely concede is possible. This is a major problem because almost all the disputes that actually arise today involve areas of overlapping power. In such cases, both branches have relevant power to act and come into conflict. This Article argues that separation of powers formalism has never built-and can never build-a coherent method that tells us which branch to prioritize in such instances. These are the limits of formalism in the separation of powers. Formalism might help us understand some uncontroversial separation of powers questions, but it cannot resolve the disputes that actually matter today. 

Keywords: Separation of Powers, Constitutional Law, Formalism, Administrative Law, Constitutional Structure, Foreign Relations Law, Executive Privilege, Removal, Executive Power

Suggested Citation

Roisman, Shalev, The Limits of Formalism in the Separation of Powers (June 21, 2024). 16 Journal of Legal Analysis 178 (2024), Available at SSRN: https://ssrn.com/abstract=4882081 or http://dx.doi.org/10.2139/ssrn.4882081

Shalev Roisman (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

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