Thomas A. Smith (University of San Diego School of Law) has posted The Reconstructed Bench: Executive Autarchy and the Return to Imperium on SSRN. Here is the abstract:
The Federalist promised that courts would be the least dangerous branch because they hold neither force nor will, only judgment. That promise rested on an unstated structural condition. The official who defines a legal duty must not be the official who finds the facts, and neither may command the force that punishes. This Article argues that the separation of these functions is the load-bearing wall of legality. Remove it, and a legal institution reverts to what the Romans called imperium: the sovereign sitting in judgment of himself. The regression is structural rather than moral. It runs the same course whether honest or corrupt actors operate the machinery.
The Article traces this pathology across five episodes that span twenty-five centuries and share no common culture or political form. Rome forced the functions apart over two centuries of class conflict and perfected the separation in the formula procedure, where a private iudex found the facts the magistrate could not. The Spanish Inquisition rebuilt the outward forms of procedure while collapsing investigation and judgment into one tribunal that held a financial stake in conviction. The English Star Chamber abolished the jury and compelled self-incrimination through the ex officio oath, until Parliament destroyed it in 1641 on expressly structural grounds. The American administrative state revived the fusion under the banner of expertise and necessity. The Israeli constitutional crisis of 2023 displayed it running in two opposing directions at once within a single democracy.
Recent decisions have begun to restore the lost friction. Loper Bright, Jarkesy, and Seila Law each address one fused function: definition, fact-finding, and enforcement. The correction is real but incomplete. It operates at the level of judicial doctrine rather than institutional architecture, and doctrine applied case by case is a weaker protection than design that makes the pathology impossible from the outset. The separation of law-defining power from enforcement power is not a procedural technicality. It is the first constraint sovereign power imposes on itself, and the first to fall when legal institutions decay.
Recommended!