Separation of Powers as Ordinary Interpretation

Beginning of article

  The Supreme Court applies the structural provisions of the
  Constitution by relying on an overarching framework of "separation of
  powers." Its cases reflect two distinct visions of the doctrine.
  Functionalist decisions presuppose that Congress has plenary
  authority to compose the government under the Necessary and Proper
  Clause, subject only to the requirement that a particular
  governmental scheme maintain a proper overall balance of power.
  Formalist opinions, in contrast, assume that the constitutional
  structure adopts a norm of strict separation which may sharply limit
  presumptive congressional power to structure the government. This
  Article contends that, to the extent that these theories each rely on
  a freestanding separation of powers principle derived from the
  structure of the document as a whole, both contradict the idea that
  the Constitution is a "bundle of compromises" that interpreters must
  respect if they are to show fidelity to the constitutionmaking
  process. The historical record reveals that the founding generation
  had no single baseline against which to measure what "the separation
  of powers" would have required in the abstract. The U.S.
  Constitution, moreover, not only separates the powers of the three
  branches, but also blends them in order to provide mutual checks
  among the branches. In so doing, it strikes many different balances
  and expresses its purposes at many different levels of generality.
  When a provision carefully specifies which branch will exercise a
  given power and in what manner, interpreters must respect that
  specific compromise by prohibiting alternative means of exercising
  that power. Conversely, when the Constitution speaks indeterminately
  to a particular question, constitutionmakers should not rely on
  abstract notions of separation of powers to displace Congress's
  assigned power to compose the federal government. Rather than
  invoking any overarching separation of powers theory, interpreters
  should apply tools of ordinary textual interpretation to construe the
  particular clauses that make up the constitutional structure.

INTRODUCTION

The Supreme Court routinely decides whether particular governmental arrangements contravene "the separation of powers." (1) Such cases touch on questions as diverse and important as the validity of a one-house legislative veto, (2) the extent of congressional authority to limit presidential removal power, (3) the scope of executive privilege, (4) the requirements for Article III standing to sue, (5) the capacity of non-Article III courts to conduct Article III business, (6) and countless other issues relating to the operation of the modern federal government. Because every statutory scheme entails some choice about the distribution of power between or among branches, the composition of virtually any federal instrumentality potentially raises questions under the separation of powers doctrine.

Although the Court does not describe its work in this area in categorical terms, legal academics have accurately discerned two basic approaches to separation of powers doctrine. In one set of cases, the Court takes a functionalist approach. In that mode, it rejects the idea "that the Constitution contemplates a complete division of authority between the three branches," (7) stressing instead "that the separation of powers contemplates the integration of dispersed powers into a workable Government." (8) Cases applying a functionalist approach assume that the constitutional text itself answers very little about the allocation of governmental power among the branches. (9) Instead, functionalists tend to take a consciously purposive approach in which the primary concern is whether a challenged governmental scheme "disrupts the proper balance between the coordinate branches." (10)

Resting as it does upon a freestanding separation of powers principle, (11) this approach tends to privilege general constitutional purpose over specific textual detail. For example, given their overarching view of the document's elasticity, functionalists are loath to draw conventional negative implications from specific texts that condition the exercise of particular powers (such as the enactment of legislation) upon compliance with carefully detailed constitutional procedures (such as bicameralism and presentment). (12) Rather, because the Necessary and Proper Clause gives Congress express authority to enact legislation "necessary and proper" to implement not only its own powers but also "all other Powers" vested in the federal government, (13) functionalists believe that Congress has substantially free rein to innovate, as long as a particular scheme satisfies the functional aims of the constitutional structure, taken as a whole.

In a second set of cases, the Court takes a formalist approach. This approach generally presupposes that the Constitution draws sharply defined and judicially enforceable lines among the three distinct branches of government. (14) The conventional wisdom assumes that formalists reach this conclusion by applying standard textualist approaches. (15) And in important ways they do. Consistent with usual rules of textual implication, some formalist decisions enforce the detailed procedural requirements of specific texts such as the Appointments Clause or the Bicameralism and Presentment Clauses. (16) Subject to wrinkles discussed below, formalists similarly resist efforts to reallocate power outright from the particular branch to which a given Vesting Clause has assigned it. (17) In such cases, formalists merely seek to enforce what they regard as the text's formal lines of separation.

Less well known is the fact that formalists also assume that the Constitution embodies a freestanding separation of powers doctrine. (18) This aspect of formalism makes itself felt in so-called "encroachment" cases, which deal with the claim that Congress has violated the separation of powers through its regulation or oversight of the executive or judicial powers. Because the Necessary and Proper Clause, as noted, gives Congress at least some authority to prescribe--and thus to shape and channel--the means by which all the branches carry their powers into execution, (19) one cannot demonstrate impermissible legislative encroachment merely by showing that a statute regulates or structures the exercise of another branch's powers. Rather, the challenged arrangement must somehow affect those powers in a manner or to a degree that the Constitution otherwise prohibits. Formalists sometimes locate that prohibition not in any specific understanding of a discrete structural clause, but rather in a general norm of strict separation derived from the document as a whole. In so doing, they reason from general structural inferences to specific limitations on legislative power.

This Article contends that, contrary to these understandings of functionalism and formalism, the Constitution adopts no freestanding principle of separation of powers. The idea of separated powers unmistakably lies behind the Constitution, but it was not adopted wholesale. The Constitution contains no Separation of Powers Clause. (20) The historical record, moreover, reveals no one baseline for inferring what a reasonable constitutionmaker would have understood "the separation of powers" to mean in the abstract. Rather, in the Constitution, the idea of separation of powers, properly understood, reflects many particular decisions about how to allocate and condition the exercise of federal power. Indeed, the document not only separates powers, but also blends them in many ways in order to ensure that the branches have the means and motives to check one another. (21) Viewed in isolation from the constitutionmakers' many discrete choices, the concept of separation of powers as such can tell us little, if anything, about where, how, or to what degree the various powers were, in fact, separated (and blended) in the Philadelphia Convention's countless compromises.

Of particular importance, like most political compromises, the ones evident in the first seven articles of the Constitution find expression at many different levels of generality. Some provisions--such as the Bicameralism and Presentment Clauses, (22) the Appointments Clause, (23) or the Impeachment Clauses (24)--speak in specific terms, both about the locus of a given power and about the manner in which it is to be exercised. Other provisions are more open-ended, perhaps leaving some play in the joints. Most prominently, the Vesting Clauses speak in general terms about the legislative, executive, and judicial powers, (25) and say nothing about how these clauses intersect with Congress's broad coordinate power to compose the government under the Necessary and Proper Clause. Like most bargained-for texts, the Constitution's structural provisions thus leave many important questions unaddressed. Because the structural provisions come in many shapes and sizes, no one-size-fits-all theory can do them justice.

It is precisely this feature of the Constitution that functionalists and formalists misapprehend when they imagine that the document embraces any overarching separation of powers doctrine. By blessing schemes that preserve an adequate overall balance of power, functionalists undervalue the specificity with which the Constitution makes certain assignments of power or prescribes procedures for its exercise. By invalidating schemes on the ground that they offend a freestanding norm of strict separation, formalists undervalue the indeterminacy of the Vesting Clauses relative to Congress's authority to shape government under the Necessary and Proper Clause. In so doing, formalists attribute to parts of the document a specificity of purpose that the text may not support.

Both sides come by this generality shifting honestly. Drawing broad purposive inferences from the overall constitutional structure represents an important interpretive tradition. Professor Charles Black famously urged that constitutional adjudication should properly rest upon "the method of inference from the structures and relationships created by the constitution in all its parts or in some principal part." (26) In its broad form, this approach lies squarely within the tradition of reading legal texts to implement their overall "spirit," even when the resultant interpretation transcends what the detailed "letter" of the law specifically requires. (27) As Professor Thomas Merrill has put it, the Court's separation of powers doctrine assumes that "the Constitution contains an organizing principle that is more than the sum of the specific clauses that govern relations among the branches." (28) Within that framework, what counts for functionalists is the apparent background purpose of balance among the branches. What counts for formalists is the apparent background purpose of strict separation.

This wholesale approach to separation of powers law is ripe for reconsideration. In the past quarter century, the Court's statutory interpretation cases have raised fresh questions about the legitimacy of inferring a broad overall purpose from the specific provisions of an enacted text. The Court has emphasized that lawmaking necessarily entails compromise, and that no enacted law can therefore be expected to pursue its main purposes at all costs. (29) Because lawmakers must agree to the means as well as the ends of legislation, judges should respect the specific choices legislators have made about how to implement a law's background purposes. (30) An interpreter, in other words, must not invoke background purpose as a way to convert rules into standards or standards into rules. (31) Any approach that tries to elevate a general separation of powers doctrine above the many specifics of the Constitution's power-allocating provisions contradicts that principle.

Of course, an important, perhaps dominant, strain of constitutional theory holds that the norms governing statutory interpretation--especially those norms that insist upon close attention to statutory detail--do not translate comfortably into constitutional law. The Constitution is a broad charter of government that was meant for the ages. By design, moreover, the document is nearly impossible to amend. Hence, the "living Constitution" theory holds that one should read the Constitution as a broad statement of principle rather than as a detailed code. (32)

Whatever the arguments for or against the living Constitution in general, several considerations suggest that the Court's modern insights about reading statutory texts translate well into the Constitution's structural provisions. (33) First, rather than embracing an overarching separation of powers principle, the document, as noted, reflects countless context-specific choices about how to assign, structure, divide, blend, and balance federal power. (34) Second, constitutionmakers expressly provided for the living Constitution problem by adopting the Necessary and Proper Clause. (35) In doing so, however, they neither gave Congress free rein to innovate nor subjected it to a strict, unenumerated norm of separation. (36) Third, even if one wished to read into the document an unwritten separation of powers principle, it would be difficult, if not impossible, to identify a universally agreed-upon external template for the appropriate mix of separation and blending. Founding-era political theory and governmental practice suggest that a wide array of arrangements was thought to satisfy the requirement of adopting a system of separated powers. (37)

To say that there is no freestanding separation of powers doctrine is not to say that the Constitution contains no judicially enforceable separation of powers. Rather, this position insists merely that the Court must focus on the meaning of particular structural clauses by reference to conventional theories of textual interpretation, rather than try to impose some grand theory upon the document. As Professor William Van Alstyne writes, "the separation of powers to be respected is that which the Constitution itself establishes." (38) Where the Constitution is specific, the Court should read it the way it reads all specific texts. If the Appointments Clause supplies a precise method of appointing "Officers of the United States," the Court should not permit Congress to adopt a contrary approach under the more general authority it possesses under the Necessary and Proper Clause. (39) Conversely, where no specific clause speaks directly to the question at issue, interpreters must respect the document's indeterminacy. If legislation regulating the powers of the coordinate branches neither contradicts an identifiable background understanding of one of the Vesting Clauses nor effectively reallocates power from its specified branch, interpreters should not invalidate such legislation by reading abstract notions of the separation of powers into those otherwise open-ended clauses. (40)

Apart from harmonizing the method of constitutional interpretation with the process of constitutionmaking that produced the original Constitution, a clause-centered approach would also break the stalemate between formalists and functionalists. Because neither fully articulates its position at a level of generality at which the constitutional structure is expressed, neither has a firm basis for identifying its level of generality as superior. (41) A clause-centered approach would sidestep this problem by refocusing the inquiry onto the specific ways in which constitutionmakers did, and did not, resolve structural issues in the bargained-for constitutional text.

This Article elaborates on the idea of reading structural constitutional provisions, not through an overarching theory of separation of powers, but rather through clause-centered methods of textual interpretation that track the diverse levels of generality at which constitutionmakers framed the structural provisions. Part I discusses functionalism and formalism, offering examples of the Court's use of broadly purposive reasoning under each approach. Examining the text, structure, and history of the structural provisions, Part II argues that the Constitution does not adopt a freestanding separation of powers doctrine. Part III suggests preliminary criteria for a more clause-centered approach to the document's structural provisions.

Before I turn to the analysis, two caveats are needed. First, functionalism and formalism describe the approaches of many judges and scholars. No canonical form of either approach exists. In describing methodological difficulties with each approach, I do not suggest that all functionalists or formalists always commit the generality-shifting errors I identify. (42) Rather than attempt a compendious survey of both philosophies, I try to distill the essential characteristics of the modern judicial opinions that make these tendencies most evident.

Second, by referring to "ordinary interpretation," I do not mean to suggest that there is any agreed-upon version of what judges should do when they interpret statutes, much less when they interpret the Constitution. Rather, I use "ordinary interpretation" here to distinguish between reliance on some overarching theory of the document and more clause-specific interpretation. In drawing that contrast, the analysis invokes some techniques--most prominently, certain forms of negative implication--that represent conventional and deeply rooted, but still contested, methods of textual exegesis. Obviously, I do not expect the reader to agree with every detail of the interpretive framework I apply here. Rather, my aim is to show how a generality-shifting or penumbral approach compares with one that, by some set of conventional standards, seeks to excavate the historically understood meanings of particular clauses, read in context.

I. MODERN SEPARATION OF POWERS DOCTRINE

Analysis of formalism and functionalism typically stresses the differences between them. Functionalism emphasizes standards. Formalism favors rules. Functionalism looks primarily at constitutional purposes. Formalism draws more upon constitutional text and original understanding. This Part tries to show that focusing upon these differences, however real, overlooks an important tendency that the two approaches have in common: in some contexts, each approach relies on a freestanding separation of powers doctrine that transcends the specific meaning of any given provision of the Constitution. Perceiving a broad constitutional purpose to achieve checks and balances among the branches, functionalists tend to validate schemes as long as they preserve an appropriate balance, even if doing so entails rejecting the detailed procedural requirements of a discrete structural provision. Formalists tend to do better along those particular dimensions--typically insisting on the fine points of the document's specific assignments of power and specifications of procedure. But they also invoke a freestanding separation of powers doctrine when they rely on a background norm of strict separation to displace Congress's presumptive authority to make laws "necessary and proper" to "carry[] into Execution" all the powers conferred upon the federal government. (43)

This Part explores the purposive, generality-shifting elements of both approaches. Section I.A examines the generality-shifting nature of functionalism. Section I.B attempts to show that freestanding separation of powers doctrine also plays some role in formalist jurisprudence.

A. Functionalism

1. A Sketch of Functionalist Principles.--No canonical definition of functionalism exists. But with forgivable oversimplification, it is possible to identify some recurrent themes. Functionalists believe that the Constitution's structural clauses ultimately supply few useful details of meaning. Professor Peter Strauss thus writes:

  One scanning the Constitution for a sense of the overall structure of
  the federal government is immediately struck by its silences. Save
  for some aspects of the legislative process, it says little about how
  those it names as necessary elements of government--Congress,
  President, and Supreme Court--will perform their functions, and it
  says almost nothing at all about the unelected officials who, even in
  1789, would necessarily perform the bulk of the government's work.
  (44)

Given the document's many "silences," functionalists believe that almost all important aspects of "the job of creating and altering the shape of the federal government" fall within the authority granted to Congress by the Necessary and Proper Clause. (45) That clause, as noted, gives Congress the power to make laws that are "necessary and proper for carrying into Execution" not only its own powers, but also "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (46) Functionalists thus argue that "the text on its own terms contemplates that Congress will determine how [the government's] powers are best exercised." (47)

In light of those starting premises, functionalists view their job as primarily to ensure that Congress has respected a broad background purpose to establish and maintain a rough balance or creative tension among the branches. (48) As Professor Kathleen Sullivan once put it, under a functionalist approach, "Congress's choice of demonstrated social benefits" in a particular institutional arrangement prevails over the formalities of separation of powers, "as long as the policies underlying the original structure are satisfied." (49) In this regard, functionalists emphasize that the founders created a "governmental structure ... [that] embodies both separated powers and interlocking responsibilities." (50) That is, the Constitution not only separates powers, but also establishes a system of checks and balances through power-sharing practices such as the presidential veto, senatorial advice and consent to appointments, and the like. (51) In light of that complex structure, functionalists view the Constitution as emphasizing the balance, and not the separation, of powers. (52)

This emphasis, I submit, results in a systematic overvaluation of the general purposes of the Constitution and a systematic undervaluation of the specific requirements of particular structural clauses. As explained below, when an enacted text establishes a new power and specifies a detailed procedural framework for that power's implementation, conventional principles of textual exegesis suggest that the resultant specification should be treated as exclusive of any other alternative. (53) (Why would constitutionmakers go to the trouble to spell out in exquisite detail the procedures for enacting legislation, appointing federal officers, or impeaching those officers if they viewed alternative procedures as equally acceptable?) If so, then the Constitution's "silences" about alternative assignments of power or forms of procedure may, at times, reflect a negative implication, and not the sort of indeterminacy that leaves Congress free to innovate under the Necessary and Proper Clause. (54) In functionalist jurisprudence, those specific textual implications yield as long as the general balance of powers is intact.

2. Examples of Functionalist Generality Shifting.--The Court has applied a functionalist approach to numerous separation of powers questions, ranging from the validity of statutory restrictions on presidential removal power (55) to the scope of extratextual doctrines of executive and legislative privilege. (56) Rather than catalogue them all here, this subsection discusses two prominent functionalist opinions that typify the generality-shifting tendencies of that approach. The first--a majority opinion--uses functionalist reasoning to uphold the reallocation of (what the Court described as) "core" Article III business to a non-Article III tribunal. The second--one of Justice White's canonical functionalist dissents (57)-- illustrates his use of functionalism to validate a one-house legislative veto despite the specific requirements of the Bicameralism and Presentment Clauses.

(a) Underreading a Vesting Clause.--In Commodity Futures Trading Commission v. Schor, (58) the Court sustained a statute that had reallocated core Article III business to an administrative agency lacking Article III protections of life tenure and salary protection. (59) Schor, an investor in commodity futures, had filed an action before the Commodity Futures Trading Commission (CFTC) alleging that his broker had violated the Commodity Exchange Act (60) (CEA). The broker, in turn, brought a state common law counterclaim for debt, seeking unpaid brokerage fees. (61) Both the parties and the Court assumed that the CEA claim involved a so-called "public right"--that is, a category of disputes that our constitutional tradition has, since the early days of the Republic, treated as appropriate matters for executive, as well as judicial, disposition. (62) In contrast, the Court viewed the state common law counterclaim as "core" Article III business. (63) Accordingly, by its own reckoning, the Court was faced with a statutory scheme that reassigned core Article III business to a non-Article III agency.

From that starting point, one might have thought the case relatively straightforward. (64) Applying conventional principles of negative implication, Justice Brennan observed in dissent: "On its face, Article III, [section] 1, seems to prohibit the vesting of any judicial functions in either the Legislative or the Executive Branch." (65) Constitutionmakers vested "[t]he judicial Power" in federal courts having specified characteristics--namely, judges with life tenure and salary protection. (66) In that light, the Court had long made clear that Congress may not "withdraw from [Article III] judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty." (67) In other words, matters "at the core of the historically recognized judicial power" had to remain within the purview of an Article III adjudicator. (68)

In classical functionalist reasoning, however, Schor explained that the validity of the scheme hinged, not on the terms of Article III's Vesting Clause, but rather on "the purposes underlying the requirements of Article III." (69) Under this approach, the Court found that, for several reasons, "the congressional authorization of limited CFTC jurisdiction over a narrow class of common law claims as an incident to the CFTC's primary, and unchallenged, adjudicative function does not create a substantial threat to the separation of powers." (71) First, the CFTC exercised narrow authority over Article III counterclaims in a "particularized area of law." (70) Second, the scheme left Article III courts with considerable authority to check the agency's decisions and denied the agency certain key attributes of Article III power. (72) Third, invocation of the agency forum depended wholly on the initiative of the parties, mitigating concerns about any intrusion upon Article III. (73)

Finally, the Court--with no apparent hint of irony--took into account "the concerns that drove Congress to depart from the requirements of Article III." (74) If brokers could not bring counterclaims before the CFTC, then customers faced with such counterclaims would have to bring their CEA actions in federal court if they wished to avoid litigation in two fora. (75) And this outcome, the Court said, would defeat Congress's intention "to create an inexpensive and expeditious alternative forum [the CFTC] through which customers could enforce ... the CEA against professional brokers." (76)

Having concluded that "the magnitude of any intrusion on the Judicial Branch can only be termed de minimis," (77) the Court found "no genuine threat" to "separation of powers principles" from the challenged scheme. (78) Even if the reallocation of common law adjudication to an agency technically violated Article III's text, what counted was the broader purpose of Article III in the overall scheme of separation of powers.

(b) Specific Procedures and General Purposes.--Justice White's dissent in INS v. Chadha (79) provides another classic example of functionalist generality shifting. Under the Immigration and Nationality Act of 1952 (80) (INA), one house of Congress could "veto" the Attorney General's exercise of delegated authority to suspend an order of deportation. (81) Because the one-house veto altered "the legal rights, duties, and relations" of persons outside the legislative branch, the Court held that it constituted legislation that did not comply with the "[e]xplicit and unambiguous provisions" of the Bicameralism and Presentment Clauses of Article I, Section 7. (82) Whatever its other merits or demerits, the one-house veto's inconsistency with the Constitution's "express procedures ... for legislative action" was, for the Court, the end of the matter. (83)

Justice White's dissent typifies modern functionalism. He wrote that "[t]he Constitution does not directly authorize or prohibit the legislative veto." (84) Accordingly, Justice White concluded that the relevant question is whether "the legislative veto is consistent with the purposes of Art. I and the principles of separation of powers which are reflected in that Article and throughout the Constitution." (84) Indeed, given that Congress routinely delegates broad rulemaking authority to administrative agencies, (85) Justice White maintained that the legislative veto actually promoted the balance of powers prescribed by the constitutional structure:

  Without the legislative veto, Congress is faced with a Hobson's
  choice: either to refrain from delegating the necessary authority,
  leaving itself with a hopeless task of writing laws with the
  requisite specificity to cover endless special circumstances across
  the entire policy landscape, or in the alternative, to abdicate its
  law-making function to the Executive Branch and independent agencies.
  To choose the former leaves major national problems unresolved;
  to opt for the latter risks unaccountable policymaking by those not
  elected to fill that role. (87)

In other words, in modern society, the legislative veto served as "an important if not indispensable political invention." (88) For Justice White, it thus clearly fell within Congress's broad authority under the Necessary and Proper Clause. (89)

While Justice White did invoke the text of the Constitution--to argue that it did not speak to the legislative veto--his reliance on general constitutional purpose, in fact, displaced the specific requirements of the Bicameralism and Presentment Clauses. It is perhaps true that those clauses do not "directly" speak to the legislative veto, (90) but only in the most crassly literal sense. (91) Justice White's characterization of the text overlooks the standard implication of exclusivity that interpreters conventionally draw from specific procedural texts such as the Bicameralism and Presentment Clauses. (92) In the absence of the INA's legislative veto provision, Congress surely could not have nullified the Attorney General's exercise of suspension authority without passing legislation. (93) If Congress could delegate to itself the power to alter legal rights and duties through means short of legislation, it could freely circumvent the procedural conditions that constitutionmakers attached to Congress's exercise of its "legislative Powers." (94) Accordingly, in the face of an elaborately detailed set of procedural requirements for enacting legislation, Justice White's invocation of general constitutional purposes did not fill a gap in the document, but rather trumped the specific textual implications of discrete constitutional provisions.

Of course, one might say that Justice White's overlooking a negative implication (if that is what he did) merely reflects ordinary interpretation gone awry, and not the sort of generality-shifting functionalism that is of concern here. (95) But to draw such a conclusion would be to minimize the systematic influence of functionalist premises in the dissent's reasoning. Given his view that the Constitution's central purpose is to blend and balance power, Justice White predictably understated the preclusive effect of the sharp-edged specification of legislative procedure in Article I, Section 7. His failure even to acknowledge the possibility of a negative implication was not, therefore, a random interpretive misstep, but rather one born of a larger philosophy of the constitutional structure.

B. Formalism

1. A Sketch of Formalist Principles.--Formalist theory presupposes that the constitutional separation of powers establishes readily ascertainable and enforceable rules of separation. Perhaps because of this emphasis, scholars commonly associate formalism with textualist interpretive approaches, which insist upon a close adherence to rules reflected in the public meaning of some authoritative text, such as a statute or the Constitution. (96) Conventional wisdom further holds that, in contrast with functionalism, formalism calls upon interpreters to adhere to the conventional meaning of the text instead of resorting to the broad purposes underlying it. (97)

That characterization accurately describes important elements of formalist reasoning. In particular, many formalist decisions simply enforce the apparent exclusivity of the detailed procedures specified in provisions such as the Bicameralism and Presentment Clauses or the Appointments Clause. (98) Also within the tradition of ordinary textual interpretation (though perhaps more challenging in practice (99)) are formalist opinions resisting the perceived reassignment of a power from one branch to another, contrary to the allocation originally effected by one of the Vesting Clauses. (100)

Rather than focus on such cases (to which this Article later returns), (101) the analysis here examines an important but overlooked category of cases in which formalists risk relying on generality-shifting purposivism. Like functionalists, formalists subscribe to the idea that the Constitution adopts a freestanding separation of powers doctrine. (102) Bereft of any express Separation of Powers Clause, formalists derive their position not from any identifiable provision of the Constitution, but rather from the overall structure of the Vesting Clauses and other clauses suggesting a purpose to separate powers. (103) As one leading formalist scholar put it:

  Formalists treat the Constitution's three "vesting" clauses as
  effecting a complete division of otherwise unallocated federal
  governmental authority among the constitutionally specified
  legislative, executive, and judicial institutions. Any exercise of
  governmental power, and any governmental institution exercising that
  power, must either fit within one of the three formal categories thus
  established or find explicit constitutional authorization for such a
  deviation. The separation of powers principle is violated whenever
  the categorizations of the exercised power and the exercising
  institution do not match and the Constitution does not specifically
  permit such blending. (104)

Starting from the premise that "[t]he declared purpose of separating and dividing the powers of government ... was to 'diffus[e] power the better to secure liberty,'" (105) formalists favor unyielding enforcement of what they see as a strict norm of separation even where the resultant separation might yield inefficiencies. (106) Of particular interest here, formalists carry the norm of separation beyond the (previously described) enforcement of the allocations of power effected by the Vesting Clauses. Perhaps reflecting the founders' special concern about the potential for legislative usurpation of other branches' powers, (107) formalists are quick to equate certain forms of legislative regulation or oversight of executive or judicial functions with encroachment on the coordinate branches. (108) It is in this context that formalists are most attracted to generality shifting.

To understand the nature of this generality shifting, it is necessary to say a few preliminary words about the Necessary and Proper Clause, to which the analysis returns in greater detail below. (109) As noted, the clause gives Congress express authority to make laws for "carrying into Execution" all the powers vested "in the Government of the United States, or in any Department or Officer thereof." (110) While the scope of and limits upon this power are contested, it is hard to deny that the clause contemplates at least some congressional authority to shape and structure the way the coordinate branches carry their functions into execution. (111) To be sure, any resulting laws must be "necessary and proper" for executing a constitutional power, (112) limitations that seem to require at least that implemental statutes not be otherwise unconstitutional. Whatever the precise scope of those limitations may be, (113) because the Necessary and Proper Clause expressly empowers Congress to implement the executive and judicial powers, one cannot condemn an instance of legislative regulation or oversight simply because it applies to "executive" or "judicial" functions. Rather, there must be some additional basis for concluding that the Constitution does not allow the particular form of regulation. (114)

Formalist opinions, however, sometimes lack that additional step. Instead of showing that some identifiable background understanding of "[t]he executive Power" (115) or "[t]he judicial Power" (116) would have contradicted a particular form of legislative regulation or oversight, formalists may deem the legislation objectionable simply because it touches functions belonging to another branch of government and because the Constitution adopts a separation of powers. In such cases, formalists reason from a general principle of separation of powers to quite specific prohibitions against particular governmental practices. No particular clause is the source of the proscription; rather, an abstract norm of strict separation, derived from the structure of the Constitution as a whole, supplies the rule of decision. When operating in that fashion, formalists are, in short, insufficiently formalistic.

2. Examples of Formalist Generality Shifting.--The following cases illustrate the generality-shifting aspects of the anti-encroachment strand of formalism. In both, the opinion moves from a general structural inference of strict separation to a highly specific conclusion that a given institutional arrangement violates the Constitution. As in the previous section, I illustrate the generality-shifting problem with one prominent majority opinion and one canonical dissent by a leading proponent of the approach--in this case, Justice Scalia. (117)

(a) Freestanding Limits on Legislative Oversight.--In Bowsher v. Synar, (118) the Court invalidated deficit reduction legislation because the act permitted Congress to control the execution of the laws. To deal with a burgeoning deficit, the Gramm-Rudman-Hollings Act (119) provided in part that, if Congress did not meet deficit reduction targets specified in the statute, the President was to issue a sequestration order implementing spending reductions that the Comptroller General specified pursuant to a statutory formula. (120) The plaintiffs, who faced cuts in federal benefits under the statute, alleged that Congress violated the separation of powers by assigning an essentially executive function to the Comptroller General, who was subject to congressional control. In particular, although the President appointed the Comptroller General by and with the advice and consent of the Senate, Congress reserved limited authority to remove that official--through ordinary legislation--for "permanent disability," "inefficiency," "neglect of duty," "malfeasance," or "a felony or conduct involving moral turpitude." (121)

Reasoning that the Comptroller General's preparation of binding budget reductions constituted law execution, (1220 the Court applied a classically formalist conception of separation of powers to invalidate the scheme:

  Even a cursory examination of the Constitution reveals the influence
  of Montesquieu's thesis that checks and balances were the foundation
  of a structure of government that would protect liberty. The Framers
  provided a vigorous Legislative Branch and a separate and wholly
  independent Executive Branch, with each branch responsible ultimately
  to the people. The Framers also provided for a Judicial Branch
  equally independent. ... (123)

From that general starting point, the Court drew the specific conclusion that "[a] direct congressional role in the removal of officers charged with the execution of the laws ... is inconsistent with separation of powers." (124)

Although I suggest below a clause-centered justification for the result in Bowsher, (125) the Court's decision did not rest on an established understanding of any particular constitutional clause. Rather, the Court gleaned the purpose of strict separation from the overall structure of, and relationship among, the Vesting Clauses--from the simple fact that the document divides power three ways. The Court reinforced that inference with the rather general observation that "[t]he debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches." (126) Indeed, the Court cited particular clauses of the Constitution only to reinforce the general inference that the Constitution adopted a separation of powers (127) and to show that nothing in the document affirmatively contemplated a general role for Congress in the appointment and removal of executive officers. (128) Thus, it reasoned from a high-level inference (the separation of powers) to a very specific one--that, in a system of separated powers, the legislature cannot exercise removal authority, however limited, over any official performing an executive function.

That specific inference, however, does not necessarily follow from the general proposition. Congress has considerable authority to influence law execution, inter alia, through its powers under both the Necessary and Proper Clause and the Spending Clause. (129) Congress can adjust an agency's budget to affect enforcement priorities or to express approval or disapproval of the agency's policymaking initiatives. (130) Indeed, as Professor Charles Black once wrote, without violating the Constitution, Congress "could at the start of any fiscal biennium reduce the president's staff to one secretary for answering social correspondence." (131) More directly, Congress can and does attach substantive riders to appropriations bills, restricting the ways agencies may spend appropriated money. (132) Congress can even use its appropriations authority to compel the executive to settle claims that the executive thinks unmeritorious. (133) If Congress can permissibly influence the execution of the law in those ways without violating the separation of powers as such, it is at least not self-evident why that general principle should condemn Congress's reserving the option to influence law administration through the threat of removal, at least when it can do so only for carefully circumscribed reasons and only through bicameralism and presentment. At a minimum, to reason from a general purpose of "separation" to the specific result of "no legislative removal" requires the introduction of an extra step that Bowsher's reasoning did not identify.

Nowhere did the Court establish a specific, antecedent understanding of "legislative" or "executive" power that would preclude such removal. Nor is it utterly obvious that constitutionmakers, in fact, would have subscribed to such an understanding. (134) Accordingly, the Court ultimately rested its decision upon general principles of separation of powers, rather than the specific historical meaning of any particular clause. (135)

(b) Overreading a Vesting Clause.--In Morrison v. Olson, (136) the Court divided over the proper method of considering the constitutionality of Congress's efforts to establish an independent counsel for the investigation and prosecution of specified serious crimes by top government officials. Enacted in the wake of the Watergate scandal, the Ethics in Government Act (137) sought to insulate high-level prosecutions from complete presidential control. To ensure impartiality, once the Attorney General determined that it was necessary to appoint an independent counsel to investigate a covered case, he or she applied to a Special Division of the U.S. Court of Appeals for the D.C. Circuit, which made the appointment and defined the independent counsel's jurisdiction. (138) Once appointed, the independent counsel could be removed "only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties." (139)

Theodore Olson, then a target of an independent counsel investigation, challenged both the appointment and removal provisions of the Act. Relevant here is the removal question. Using quintessentially functionalist reasoning, the Court held that the restriction on removal passed muster because the majority did "not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President." (140) The Court made clear that the independent counsel exercised only limited powers and jurisdiction, and that the President retained some meaningful supervisory authority over the prosecution by virtue of the Attorney General's ability to remove the independent counsel for "good cause." (141) Viewed in that light, the degree of the removal limitation did not "interfere impermissibly with [the President's] constitutional obligation to ensure the faithful execution of the laws." (142)

Of interest here, Justice Scalia's dissent stands as one of the most prominent formalist opinions in the U.S. Reports. It is often cited for its deft institutional analysis of the practical dangers of overreaching implicit in a scheme of independent prosecution. (143) For present purposes, however, the opinion merits attention because it helps to frame the often subtle distinctions between generality-shifting reliance on a Vesting Clause and ordinary interpretation of such a clause.

On its face, Justice Scalia's dissent purported to engage in ordinary interpretation of Article II's Vesting Clause. He emphasized that the clause does not assign the President "some of the executive power, but all of the executive power." (144) He added that, in contrast with the other Vesting Clauses, Article II, Section 1 vests "[t]he executive power" in a single actor--"a President of the United States" (145)--and that the records of the Philadelphia Convention confirm that this choice of words reflected a conscious design to create a unitary rather than a plural executive. (146) Noting that no party had disputed the executive character of criminal prosecution, (147) Justice Scalia found it impermissible to "deprive[] the President of exclusive control over that quintessentially executive activity." (148)

Despite the obvious effort to tie his analysis to a discrete clause, however, Justice Scalia's reading of Article II's Vesting Clause could not alone justify his position that Congress may not regulate the tenure of an independent counsel. To be sure, if Congress assigned the executive power to an official wholly beyond the President's control, Justice Scalia's reading of the Vesting Clause would suffice. For that arrangement would separate the President from the executive power and create a plural executive. (149) But for a statutory scheme that constrains and structures--but does not cut off--the President's relationship with a prosecutor, an additional step is necessary to establish unconstitutionality.

The reason lies, again, in the Necessary and Proper Clause. Because that clause, as noted, expressly grants Congress at least some authority to structure the way the executive and judicial powers are "carr[ied] into Execution," (150) one cannot establish a constitutional violation simply by showing that Congress has constrained the way "[t]he executive Power" is implemented. (151) To conclude otherwise would be to condemn familiar statutes that structure and constrain the implementation of executive authority, for example, by prescribing administrative procedures for executive agencies, (152) setting term limits for their officers, (153) or protecting executive functionaries from various forms of discrimination. (154) Thus, to invalidate a legislative regulation of executive power (such as the "good cause" provision at issue in Morrison), an interpreter must be able to articulate reasons why the particular constraint shifts from permissible regulation to impermissible intrusion upon "[t]he executive Power."

In his dissent, Justice Scalia tried to supply this missing element by moving from general separation of powers principles to the specific conclusion that a "good cause" restriction on removal was unconstitutional. (155) Rather than focus on the semantic question of whether "[t]he executive Power" was a term of art that dealt with the removal question as such, he emphasized that "the principle of separation of powers, and the inseparable corollary that each department's 'defense must ... be made commensurate to the danger of attack,' ... determines the appropriate scope of the removal power." (156) Starting from that premise, Justice Scalia noted that the founders sought to prevent the gradual concentration of power in any one branch by giving each "the necessary constitutional means and personal motives to resist encroachments of the others." (157) Given the tendency of the legislature to predominate, he reasoned that the founders sought to fortify the executive, in part, by ensuring plenary presidential control over the executive branch. (158) In that light, he found that any limitation on the President's control over criminal prosecution obviously threatened the "equilibrium of power" established by the first three articles of the Constitution. (159)

In contrast, consider the way Chief Justice Taft approached the removal question in his opinion for the Court in Myers v. United States, (160) which invalidated a statute conditioning the removal of an executive officer upon the advice and consent of the Senate. (161) Although classically formalist in the sense that it sought to enforce sharp lines of demarcation in the constitutional structure, the Court's analysis did not read "[t]he executive Power" in light of broader separation of powers principles, but rather focused on whether the technical meaning of that term, in historical context, embraced the concept of an illimitable removal power. The opinion, which occupies seventy-two pages in the U.S. Reports, is too extensive to permit full examination of its reasoning. Three aspects of its analysis, however, suffice to illustrate Chief Justice Taft's efforts to determine whether the technical semantic meaning of Article II historically addressed the removal question.

First, the Myers Court argued that, because the common law concept of "executive" power included the removal power, the founders would have understood such authority to be an …