Separation of Powers as Ordinary Interpretation
Manning, John F., Harvard Law Review
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.
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. …