Joshua Macey (Yale University – Law School) & Brian Richardson (Cornell University – Law School) have posted Structural Indeterminacy and the Separation of Powers on SSRN. Here is the abstract:
Despite ongoing disagreement about how the Constitution allocates powers among the different branches, the two dominant schools of thought in American separation-of-powers debates— formalism and functionalism—agree on three premises: Certain powers inhere in certain government branches, some powers are vested exclusively in one or another branch, and the judiciary is the final arbiter of separation-of-powers disputes. Disagreement is largely about how powers should be parsed and which should be shared. Yet over the long lifespan of our constitutional tradition, momentous doctrinal upheavals are relatively commonplace. This Article describes four tectonic shifts in separation-of-powers doctrine: Founding-era debates about how to define and blend powers, nineteenth-century debates about the constitutionality of the nascent civil service, Lochner-era debates about legislatures’ authority to define and regulate public utilities, and mid-nineteenth-century debates about the sources of international law. The first, which we call the Inherency Theory, assumes that certain powers and functions are vested by force of the Constitution, are core to a single branch, and are discernible by the judiciary. This is a taxonomical theory of how the Constitution allocates powers, and it animates nearly all of today’s separation-of-powers debates. The second, an Antidomination Theory, denies that the words executive, legislative, and judicial imply any new or distinct powers and instead creates formal separation between the three branches based on the procedures federal actors deploy to enact, enforce, and interpret policy. The third, a rights-based Public Utility Theory, distinguishes between a public sphere that is subject to congressional, presidential, and administrative control, and a private sphere that is not. Recently, this public-private distinction has been marshalled to define the judicial power. Historically, however, it was used to deduce a whole panoply of structural limits, including the constitutionality of agency adjudication and deference. And the fourth, a General Law approach, discerns the limits of government power by reference to the eclectic authority of the common law and right reason. Recovering these theories reveals a rich set of tools for resolving interdepartmental disputes, highlights that current receptions of past settlements are nearly unintelligible without understanding the theoretical context in which they emerged, and suggests that, while different theories have risen and fallen, no one theory of separation of powers has been liquidated in our constitutional tradition.
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