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Gerard Conway - One of the best experts on this subject based on the ideXlab platform.
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Recovering a Separation of Powers in the European Union: Separation of Powers in the EU
European Law Journal, 2011Co-Authors: Gerard ConwayAbstract:The attributed sui generis character of the EU as a polity has often been cited as the basis for not applying a classic Separation of Powers analysis to it. Yet it is a logical non sequitur to infer the inapplicability of a Separation of Powers framework to the EU on this basis: no particular proposition of political or legal morality can be automatically inferred or excluded from the attributed generic novelty of the EU relative to States. The EU certainly has some novel features, but that observation of itself does not establish that such novelty requires an entirely new conception of institutional normativity (rather, it needs to be explained how whatever particular novelty the EU possesses is such as to require the exclusion of Separation of Powers thinking). This article argues that a Separation of Powers analysis is: first, descriptively accurate, to a large extent, for much of the working of the EU apart from the law‐making role of the ECJ; and, secondly, normatively attractive as a means of practically safeguarding the principles of democracy and the rule of law. This view is supported by an analysis of the substitute for a Separation of Powers in the caselaw of the ECJ, namely the principle of institutional balance, which it is argued is too vague and indeterminate to be a satisfactory alternative.
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Recovering a Separation of Powers in the European Union
European Law Journal, 2011Co-Authors: Gerard ConwayAbstract:The attributed sui generis character of the EU as a polity has often been cited as the basis for not applying a classic Separation of Powers analysis to it. Yet it is a logical non sequitur to infer the inapplicability of a Separation of Powers framework to the EU on this basis: no particular proposition of political or legal morality can be automatically inferred or excluded from the attributed generic novelty of the EU relative to States. The EU certainly has some novel features, but that observation of itself does not establish that such novelty requires an entirely new conception of institutional normativity (rather, it needs to be explained how whatever particular novelty the EU possesses is such as to require the exclusion of Separation of Powers thinking). This article argues that a Separation of Powers analysis is: first, descriptively accurate, to a large extent, for much of the working of the EU apart from the law-making role of the ECJ; and, secondly, normatively attractive as a means of practically safeguarding the principles of democracy and the rule of law. This view is supported by an analysis of the substitute for a Separation of Powers in the caselaw of the ECJ, namely the principle of institutional balance, which it is argued is too vague and indeterminate to be a satisfactory alternative.
Victoria Nourse - One of the best experts on this subject based on the ideXlab platform.
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The Vertical Separation of Powers
Social Science Research Network, 1999Co-Authors: Victoria NourseAbstract:Standard understandings of the Separation of Powers begin with the concept of function. The author argues that function alone cannot predict important changes in structural incentives and thus serves as a poor proxy for assessing real risks to governmental structure. To illustrate this point, the article returns to proposals considered at the Constitutional Convention and considers difficult contemporary cases such as Morrison v. Olson, Clinton v. Jones, and the Supreme Court's more recent federalism decisions. In each instance, function appears to steer us wrong because it fails to understand Separation of Powers questions as ones of structural incentive and political relationship. In order to move away from function as the sole proxy for structural risk, the article suggests a "vertical" approach toward Separation of Powers questions. That approach reconceives departmental power less as the power to perform a set of tasks fitting a particular constitutional description (e.g., adjudication, execution, legislation) than as a set of constitutionally created political relationships between the people and those who govern them. Put another way, the Separation of Powers becomes less a search for transcendental descriptions of the departments than a means of considering how shifting structure affects liberty -- how structural incentives may incline governmental actors to act toward the people in ways that risk the electoral Powers of both majorities and minorities.
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The Vertical Separation of Powers
Duke Law Journal, 1999Co-Authors: Victoria NourseAbstract:Standard understandings of the Separation of Powers begin with the concept of function. Professor Nourse argues that function alone cannot predict important changes in structural incentives and thus serves as a poor proxy for assessing real risks to governmental structure. To illustrate this point, the Article returns to proposals considered at the Constitutional Convention and considers difficult contemporary cases such as Morrison v. Olson, Clinton v. Jones, and the Supreme Court’s more recent federalism decisions. In each instance, function appears to steer us wrong because it fails to understand Separation of Powers questions as ones of structural incentive and political relationship. In order to move away from function as the sole proxy for structural risk, the Article suggests a “vertical” approach toward Separation of Powers questions. That approach reconceives departmental power less as the power to perform a set of tasks fitting a particular constitutional description (e.g., adjudication, execution, legislation) than as a set of constitutionally created political relationships between the people and those who govern them. Put another way, the Separation of Powers becomes less a search for transcendental descriptions of the departments than a means of considering how shifting structure affects liberty—how structural incentives may incline governmental actors to act toward the people in ways that risk the electoral Powers of both majorities and minorities. † Victoria Nourse, Associate Professor of Law, University of Wisconsin. Special thanks to Ann Althouse, Neil Komesar, and Jane Schacter for reading early drafts of this Article, as well as to the members of the Columbia Legal Theory Workshop and, in particular, to Michael Dorf, George Fletcher, and Peter Strauss for listening to the some of the ideas presented in an early version of this Article. I would also like to thank the students in Professor Komesar’s Law and Economics seminar, who read and commented on a later draft. The editors of the Duke Law Journal, in particular Scott Thompson, provided excellent assistance. All errors are, of course, my own. NOURSE TO PRINTER 06/09/00 3:26 PM 750 DUKE LAW JOURNAL [Vol. 49:749
Jon D. Michaels - One of the best experts on this subject based on the ideXlab platform.
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of constitutional custodians and regulatory rivals an account of the old and new Separation of Powers
Social Science Research Network, 2016Co-Authors: Jon D. MichaelsAbstract:The theory and reality of “administrative Separation of Powers” requires revisions to the longstanding legal, normative, and positive accounts of bureaucratic control. Because these leading accounts are often insufficiently attentive to the fragmented nature of administrative power, they tend to overlook the fact that internal administrative rivals — perhaps as much as Congress, the President, and the courts — shape agency behavior. In short, these accounts do not connect what we might call the old and new Separation of Powers. They thus fail to capture the multidimensional nature of administrative control in which the constitutional branches (the old Separation of Powers) and the administrative rivals (the new Separation of Powers) all compete with one another to influence administrative governance.Connecting novel insights regarding administrative Separation of Powers to old — and seemingly settled — debates over the design and desirability of bureaucratic control, this Article (1) characterizes the administrative sphere as a legitimate, largely self-regulating ecosystem, (2) recognizes the capacity of three rivals — politically appointed agency heads, politically insulated civil servants, and members of the public — to internally police the administrative process, and (3) recasts judges, presidents, and legislators as custodians tasked with preserving a well-functioning, internally rivalrous administrative Separation of Powers.
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The Cycles of Separation-of-Powers Jurisprudence
Yale Law Journal, 2016Co-Authors: Aziz Z. Huq, Jon D. MichaelsAbstract:The Supreme Court’s approach to the Constitution’s Separation of Powers is a puzzle. Although all Justices appear to agree on the doctrine’s goals, in almost every important line of cases the Court oscillates between two basic approaches of hard-edged rules and open-textured standards. Its seemingly erratic shifts cannot be wholly explained by changes in the bench’s personnel or methodological fads. This Article isolates and analyzes pervasive doctrinal cycling between rules and standards as a distinctive element of Separation-of-Powers jurisprudence. Breaking from previous scholarship critical of the Court’s zigzagging, we consider whether purposeful cycling between rules and standards might be justified as a judicial strategy for implementing the Separation of Powers. We develop a new theoretical account of the Separation of Powers in which doctrinal cycling can be justified on two key assumptions: First, the Separation of Powers promotes a plurality of normative ends, and second, it does so in the context of a more heterogeneous institutional environment than a focus on the three branches alone would suggest. Doctrinal cycling between rules and standards could be used, at least in theory, to manage normative pluralism and police this “thick political surround” when simpler, more straightforward regulatory strategies would fail. This rational reconstruction of the feasible judicial role in the Separation-of-Powers context provides a benchmark for evaluating observed doctrinal oscillations, and, more generally, determining whether courts possess the necessary institutional resources to promote Separation-of-Powers values.
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An Enduring, Evolving Separation of Powers
Social Science Research Network, 2014Co-Authors: Jon D. MichaelsAbstract:This Article sets forth the theory of an enduring, evolving Separation of Powers, one that checks and balances state power in whatever form that power happens to take. It shows how this constitutional commitment was first renewed and refashioned in the 1930s and 1940s, wherein the construction of a secondary regime of administrative checks and balances triangulated regulatory power among politically appointed agency leaders, an independent civil service, and a vibrant and pluralistic civil society. And it supplies the legal precedent, corrective blueprint, and normative imperative for subsequent generations (including ours) to reaffirm that commitment whenever new threats to limited, rivalrous government arise. This commitment to an enduring, evolving Separation of Powers helps explain our past and our present — and it readies us for the future. First, reframing the administrative state through the lens of an enduring, evolving Separation of Powers provides a more seamless connection to the Founding. The twentieth-century shift to administrative governance toppled the Framers’ tripartite constitutional regime. But the subsequent construction of an administrative Separation of Powers represented an act of constitutional restoration, anchoring the modern administrative state firmly within the constitutional tradition of employing rivalrous, heterogeneous institutional counterweights to promote democratic accountability and compliance with the rule of law. Second, this reframing resolves seemingly intractable normative and jurisprudential struggles in contemporary administrative law, harmonizing today’s leading (but conflicting) theories and doctrines of public administration. And, third, this reframing prepares us for life in the post-administrative state, a reality that is already beckoning. Increasingly the forces of privatization are consolidating state and commercial power in ways that compromise administrative Separation of Powers. Understanding privatization not as a sui generis phenomenon but instead simply as the latest, perhaps greatest, threat to an enduring, evolving Separation of Powers enables us to employ the grammar and doctrinal imperatives of constitutional Separation of Powers to insist that privatization’s proponents take on the responsibility for reestablishing limited and rivalrous governance amid the dynamic turn to the market — or else abandon the enterprise altogether.
Nicholas W. Barber - One of the best experts on this subject based on the ideXlab platform.
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The Principles of Constitutionalism - The Separation of Powers
The Principles of Constitutionalism, 2018Co-Authors: Nicholas W. BarberAbstract:The point of the Separation of Powers is examined, and it is argued that accounts of the principle that identify liberty as the guiding purpose of the principle are flawed, the products of an unattractive account of the state. A richer understanding of the state produces a richer understanding of the principle. The second and third parts of the chapter outline such an account, reflecting on the institutional framework required by the Separation of Powers: the divisions and connections that the principle demands. Different state institutions are well-placed to identify different aspects of the common good and, through their differing skills and instruments, well-suited to modify the policies of the state in light of these assessments. The constitution then combines these decisions into a single state action. The chapter then considers apparent exceptions to the Separation of Powers.
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Prelude to the Separation of Powers
The Cambridge Law Journal, 2001Co-Authors: Nicholas W. BarberAbstract:This article examines the doctrine of Separation of Powers, and attempts to defend the validity of a diversity of different conceptions of the doctrine. It also links Separation of Powers to efficiency, arguing that at the core of every manifestation of the doctrine is the efficient allocation of function to form. The structure of the courts and legislature are examined, and it is argued that that a link can be drawn between these institutions and the legislative and judicial task. The relationship between political theory and constitutional theory is also discussed.
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Prelude to the Separation of Powers
Social Science Research Network, 2001Co-Authors: Nicholas W. BarberAbstract:This article is an exploration of the concept of the Separation of Powers. It does not seek to advance a fully formulated account of the doctrine; rather, it seeks to show what the many different interpretations of the concept have in common, and defend the validity of a diversity of conceptions. The essence, though not the whole, of Separation of Powers lies in the meeting of form and function; the matching of tasks to those bodies best suited to execute them. The core of the doctrine is not liberty, as many writers have assumed, but efficiency. This article will attempt to show the considerations generated by the Separation of Powers when the concept is animated by a thin political theory, that is, principles which are so uncontroversial virtually all political theorists would endorse them. Relying on these thin normative assumptions, the article will examine how far it is possible to claim that the structures of the courts and the legislature have implications for the tasks that ought to be assigned to them; how far a link can be drawn between the institutions of the legislature and judiciary, and the legislative and judicial function. Though the considerations identified are of weak force, their strength is such that they will continue to apply once a thicker normative theory is introduced. By adopting thin normative assumptions we are able to identify the structural concerns that are at the core of the concept, even if they are too shallow to allow us to build a complete model of the Separation of Powers. This paper should now be read alongside Barber, 'Self-Defence for Institutions'.
Curtis A. Bradley - One of the best experts on this subject based on the ideXlab platform.
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historical gloss constitutional conventions and the judicial Separation of Powers
Social Science Research Network, 2016Co-Authors: Curtis A. Bradley, Neil S SiegelAbstract:Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the Separation of Powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the Separation of Powers between the political branches and the federal judiciary—what this Article calls the “judicial Separation of Powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial Separation of Powers. First, such practice might be invoked as an appeal to “historical gloss”—a claim that the practice informs the content of constitutional law. Second, historical practice might be invoked to support non-legal but obligatory norms of proper governmental behavior, something that Commonwealth theorists refer to as “constitutional conventions.” To illustrate how both gloss and conventions enrich our understanding of the judicial Separation of Powers, the Article considers the authority of Congress to “pack” the Supreme Court, and the authority of Congress to “strip” the Court’s appellate jurisdiction. This Article shows that, although the defeat of Franklin Roosevelt’s Court-packing plan in 1937 has been studied almost exclusively from a political perspective, many criticisms of the plan involved claims about historical gloss; other criticisms involved appeals to constitutional conventions; and still others blurred the line between those two categories or shifted back and forth between them. Strikingly similar themes emerge in debates in Congress in 1957-58, and within the Justice Department in the early 1980s, over the authority of Congress to prevent the Court from deciding constitutional issues by restricting its appellate jurisdiction. The Article also shows, based on internal executive branch documents that have not previously been discovered or discussed in the literature, how Chief Justice John Roberts, while working in the Justice Department and debating office of Legal Counsel head Theodore Olson, failed to persuade Attorney General William French Smith that Congress has broad authority to strip the Court’s appellate jurisdiction. The Article then reflects on the implications of gloss and conventions for the judicial Separation of Powers more generally.
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Historical Gloss and the Separation of Powers
Harvard Law Review, 2012Co-Authors: Curtis A. Bradley, Trevor W. MorrisonAbstract:Arguments based on historical practice are a mainstay of debates about the constitutional Separation of Powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, most accounts of how historical practice should inform the Separation of Powers require “acquiescence” by the branch of government whose prerogatives the practice implicates, something that is viewed as critical to giving historical practice the force of law. Yet the concept of acquiescence has been treated much too casually in the literature. Claims about acquiescence are typically premised on a Madisonian conception of interbranch competition, pursuant to which Congress and the Executive Branch are each assumed to have the tools and the motivation to guard against encroachments on their authority. It has become apparent from political science scholarship, however, that the Madisonian model does not accurately reflect the dynamics of modern congressional-executive relations. This requires a reexamination of the premises and implications of the idea of institutional acquiescence in particular, and of the role of historical practice more generally. Ultimately, we argue, the problems with the Madisonian model are not fatal to crediting historical practice in interpreting the Separation of Powers. But they do require more attention to the reasons why such practice is invoked, the extent to which the reasons demand institutional acquiescence, and the precise method by which such acquiescence is identified. To illustrate the importance of each of these questions, we present three case studies of constitutional debates concerning the Separation of Powers in which practice-based arguments are prominent - war Powers, congressional-executive agreements, and removal of executive officers.
