Cooperative Federalism, the New Formalism, and the Separation of Powers Revisited: Free Enterprise Fund and the Problem of Presidential Oversight of State-Government Officers Enforcing Federal Law
Krotoszynski, Ronald J., Jr., Duke Law Journal
Formalism has returned, displacing the flexible, functionalist separation-of-powers analysis that often characterized the Supreme Court's separation-of-powers decisions during the Rehnquist Court. Free Enterprise Fund v. Public Co. Accounting Oversight Board provides powerful evidence of this emerging trend. Moreover, a reliable majority of the Justices have strongly embraced formalism in other important separation-of-powers decisions as well. A new formalism now appears to govern the Court's contemporary separation-of-powers jurisprudence--with the defenders of more flexible, functional approaches to separation-of-powers questions relegated to writing dissents. The Roberts Court, however, has failed to elucidate fully the precise scope and meaning of its new formalist vision for separation-of-powers doctrine. Even so, if the Roberts Court's decisions mean what they appear to say, serious constitutional questions exist about the constitutional validity of cooperative-federalism programs in which states have primary responsibility for the administration of important federal labor, environmental, and healthcare programs. Simply put, the new formalism renders such programs open to serious constitutional attack on separation-of-powers grounds because the president arguably lacks sufficient direct oversight and control of the state-government officers who administer and enforce federal law on a day-to-day basis. But the Supreme Court need not follow the logic of its more recent separation-of-powers decisions to this ultimate conclusion; plausible arguments exist to support the claim that cooperative-federalism programs do not violate separation-of-powers doctrine even under a demanding formalist analysis. Until the full implications of the Roberts Court's embrace of the new formalism are known, legal scholars, federal judges, and administrative-law practitioners should consider carefully whether cooperative-federalism programs can successfully be reconciled with the imperatives of the unitary executive and its requirement of direct presidential control and oversight of the administration or federal law.
TABLE OF CONTENTS Introduction I. Reconsidering Formalism and Functionalism in Separation-of-Powers Analysis: Some Definitional Considerations II. The Roberts Court and the New Formalism A. Free Enterprise Fund B. Stern v. Marshall C. New Process Steel, L.P. v. NLRB D. Lujan and Printz: Earlier Examples of Formalism and the Unitary-Executive Theory E. Seeing the Forest in the Trees: The Emerging New Formalism in Separation-of-Powers Jurisprudence III. Cooperative Federalism in Action: Three Examples A. The OSH Act of 1970 and the Occupational Safety and Health Administration B. The Clean Water Act and the EPA C. The Patient Protection and Affordable Care Act, Health and Human Services, and the States D. Common Oversight Provisions and Problems in Cooperative-Federalism Programs IV. Reconsidering Cooperative Federalism and the Separation of Powers A. The Constitutional Imperative of Presidential Oversight of the Execution of Federal Law B. Government Accountability C. The Problem of Nonuniformity in Federal Law V. Potential Objections and Rejoinders to a Broad Reading of Free Enterprise Fund A. States Do Not Enforce Federal Law in Cooperative-Federalism Programs B. Adequate Mechanisms of Presidential Oversight Exist To Satisfy Separation-of-Powers Concerns C. The Supreme Court Does Not Really Mean What It Seems To Say Conclusion
The Supreme Court has vacillated between strictly enforcing separation-of-powers principles--often denominated formalism--and balancing the potential policy benefits of a novel governmental structure against derogation from the assignment of legislative, executive, and judicial tasks under the Constitution--often denominated functionalism. …