Separation of Powers as a Safeguard of Federalism
Clark, Bradford R., Texas Law Review
With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.1
[T]he equal vote allowed to each State [in the Senate] is at once a constitutional recognition of the portion of sovereignty remaining in the individual States and an instrument for preserving that residuary sovereignty.2
During the last century, courts and commentators have accepted various forms of unconventional federal lawmaking-that is, lawmaking that appears to yield "the supreme Law of the Land,"3 but fails to comply with the procedures established by the Constitution for adopting the "Constitution," "Laws," and "Treaties" of the United States.4 Examples include administrative rules adopted pursuant to broad delegations of legislative power, non-treaty agreements, and federal common law.5 Opponents of these innovations generally rely on the constitutional separation of powers to question the legitimacy of unconventional federal lawmaking. Proponents counter that such reliance is excessively formal, and urge courts to employ a more flexible, functional approach. Both sides, however, have failed to recognize that unconventional federal lawmaking implicates not only separation of powers, but also federalism-- at least to the extent that such lawmaking purports to displace state law.
The Founders understood that the means established for adopting federal law would have a direct impact on federalism. Some of the most potent safeguards of federalism, for example, derive from a surprising source: the Supremacy Clause. Although the Supremacy Clause performs the familiar function of securing the primacy of federal law over contrary state law, it also necessarily constrains the exercise of federal power by recognizing only three sources of law as "the supreme Law of the Land. "6 These sources are the "Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States."7 The Founders, in turn, prescribed "finely wrought and exhaustively considered"8 procedures elsewhere in the Constitution to govern the adoption of each type of law recognized by the Supremacy Clause. Although federal lawmaking procedures are generally regarded as "integral parts of the constitutional design for the separation of powers,"9 they also preserve federalism both by making federal law more difficult to adopt, and by assigning lawmaking power solely to actors subject to the political safeguards of federalism.10 The text, structure, and history of the Constitution, moreover, suggest that these procedures were meant to be the exclusive means of adopting "the supreme Law of the Land." Permitting the federal government to avoid these constraints would allow it to exercise more power than the Constitution contemplates, at the expense of state authority. Accordingly, "federal law" adopted outside these procedures does not clearly Wall within the terms of the Supremacy Clause, and thus provides a questionable basis for displacing state law.
In this sense, federal action that violates the Constitution's separation of powers may also "invade rights which . . . are reserved by the Constitution to the several states."11 For example, some of the Supreme Court's most prominent separation-of-powers decisions have invalidated attempts by each branch of the federal government to circumvent constitutionally prescribed lawmaking procedures.12 These decisions also safeguard federalism by permitting designated agents of the federal government to adopt federal law only if they employ procedures that "impose burdens . . . that often seem clumsy, inefficient, even unworkable."13 In other words, enforcement of federal lawmaking procedures not only implements the Constitution's formal separation of powers, but also functions to preserve "the governance prerogatives of state and local institutions. …