Edward Cantu (University of Missouri at Kansas City – School of Law) has posted The Separation of Powers and the Least Dangerous Branch on SSRN. Here is the abstract:
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Separation-of-powers scholarship can often seem lacking because it regularly approaches the separation-of-powers as one would any other constitutional mandate having freestanding conceptual coherence and authority: as being a part of a larger body of “doctrine” or “jurisprudence” with discernible parameters. The resulting scholarship can leave the nagging impression that the commentary is out of synch with how this thing we call the “separation of powers” actually effects adjudication.
Focusing primarily on the effects of Court decisions and considering how those effects systemically interact with one another, the primary argument of this article is that the Court has always relegated enforcement of the separation-of-powers to the political process, and that all of its case law — even that seeming to strictly limit bureaucratic experimentation among the political branches — is an important part of this relegation. The argument rests on two primary premises: (1) that traditional “separation-of-powers decisions,” especially those in which the Court appears to strictly enforce the separation-of-powers, are doctrinally inconsequential, but have the systemic effect of allowing the Court to bow out of the most consequential separation-of-powers disputes in order to accommodate governmental creativity; and (2) that the most meaningful manifestation of the separation-of-powers arises in cases where the Court, out of concerns for its own institutional competence, abdicates rigorous enforcement of doctrines not facially implicating the separation-of-powers. The article ultimately urges scholars to focus on the implications of this “sub-constitutional” influence of the separation-of-powers on the evolution of doctrine generally.