William Rehnquist, the Separation of Powers, and the Riddle of the Sphinx

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INTRODUCTION
I. THE ROOTS OF REHNQUIST'S SEPARATION OF POWERS JURISPRUDENCE
      A. Rehnquist as a Law Clerk for Justice Robert Jackson
      B. Rehnquist in the Office of Legal Counsel
          1. OLC's role as an institution
          2. Rehnquist's watch at OLC
II.  REHNQUIST ON THE COURT
      A. Associate Justice Rehnquist
          1. The nondelegation doctrine and implied causes of action
          2. Foreign affairs and national security
          3. The appointments, bicameralism, and presentment cases
      B. Chief Justice Rehnquist
III. ANOTHER ANSWER TO THE RIDDLE: TWO WILLIAM REHNQUISTS?
CONCLUSION

INTRODUCTION

William Rehnquist's tenure on the Supreme Court presents a Sphinx-like riddle for students of the separation of powers: "What animal is that which in the morning goes on four, at noon on two, and in the evening on three feet?" (1) One might well answer: "Rehnquist's separation of powers jurisprudence, as it is a difficult creature to characterize, arguably evolving over time." (2) In adolescence, it appeared an originalist on all fours, (3) in manhood it walked erect, a Byron White functionalist, (4) and in old age ... well, perhaps the Sphinx might just devour one after all! Indeed, it is difficult to identify a principle unifying the late Chief Justice's separation of powers cases.

And how does one explain the absence of any separation of powers revolution to accompany federalism's rebirth? (5) No separation of powers opinion ever announced, "We start with first principles." (6) Unlike federalism, well-favored and judicially policed by the Federalism Five, the separation of powers has arguably been neglected (salutarily, some might say). But that neglect, salutary or not, has been inconsistent. Rehnquist did police (or attempt to police) the horizontal "parchment barriers" of separation from time to time. (7) What principle explains Rehnquist's philosophy of the separation of powers?

To explain the pattern of his cases, we resort to Rehnquist's first principles and our own primary research to suggest Rehnquist was consistent at the most fundamental level: From his days as a law clerk to Justice Robert Jackson during Youngstown to his service as the head of the Justice Department's Office of Legal Counsel (OLC) through his tenure on the Supreme Court, Rehnquist's separation of powers jurisprudence has been marked by an inductive, common law approach to constitutional adjudication. It is an approach that eschews categorical, a priori bright-line rules but favors precedent and the lessons of history. (8) When Rehnquist believes the constitutional text speaks clearly, he follows its specific commands. (9) Absent such clarity, though, he would defer to Congress, "the dominant balancer of public policy in our democratic society," and not the courts. (10) By that same token, Rehnquist enforced the separation of powers by forcing Congress to take responsibility for its duty to make public policy and not impermissibly pass the buck to the executive branch or to the courts.

I. THE ROOTS OF REHNQUIST'S SEPARATION OF POWERS JURISPRUDENCE

In this Part, we briefly assess the importance of Youngstown, decided during Rehnquist's clerkship for Justice Jackson, in the development of Rehnquist's views on the separation of powers. Then, we consider how Rehnquist approached the separation of powers during his tenure as Assistant Attorney General in the Office of Legal Counsel in order to evaluate whether his views have remained constant, such that a consistent principle might explain the pattern of his judicial decisions.

A. Rehnquist as a Law Clerk for Justice Robert Jackson

Rehnquist's first professional brush with the separation of powers came soon after the start of his legal career as a junior law clerk to Justice Robert Jackson. It was an auspicious start. Rehnquist began his clerkship in February 1952, just months prior to the famous Youngstown separation of powers litigation at the Supreme Court. …