Subordination and Separation of Powers
abstract. This Article calls for the incorporation of antisubordination into separation-of-powers analysis. Scholars analyzing separation-of-powers tools—laws and norms that divide power among government actors—consider a long list of values ranging from protecting liberty to promoting efficiency. Absent from this list are questions of equity: questions of racism, sexism, and classism. This Article problematizes this omission and begins to rectify it. For the first time, this Article applies critical-race and feminist theorists’ subordination question—are marginalized groups disproportionately burdened?—to three important separation-of-powers tools: legislative appropriations, executive conditions, and constitutional entrenchment. In doing so, it reveals that each tool entails subordination by creating generalized benefits at the expense of marginalized groups. It illustrates this skewed distribution through novel case studies tracing harm to Native peoples to the use of appropriations to empower Congress, harm to residents of Puerto Rico to the use of executive conditions to empower the President, and disparate coronavirus harms to Black communities to the use of nonentrenchment to empower the future and disempower the “dead hand” of the past.
The Article’s descriptive insight that separation-of-powers tools can and do entail subordination motivates its call for the incorporation of antisubordination into both institutional and doctrinal separation-of-powers analysis. The antisubordination movement’s rights-focused approach has stagnated. The separation of powers offers a desirable, upstream means through which to pursue the goal of antisubordination by shifting attention beyond the courts and toward other political actors. Moreover, considering antisubordination in separation-of-powers analysis has historical precedent, is consistent with the aspiration for “neutral principles,” and advances already established separation-of-powers values such as liberty and accountability.
Incorporating antisubordination alters institutional analysis, doctrinal analysis, and the agenda of separation-of-powers theory. The subordination question (“who pays?”) should be as familiar to institutional analysis of separation-of-powers questions as is the legal-process question (“who decides?”). This question might be used to interrogate particular separation-of-powers tools, categories of such tools, or overarching doctrinal and conceptual approaches. Antisubordination should also change doctrinal analysis, where courts should at the very least include antisubordination among the structural values they consider in resolving ambiguities, weighing interpretive tools, and conceptualizing constitutional questions. In this context, antisubordination’s greatest impact may be as a counterweight to courts’ use of historical gloss. Finally, antisubordination requires a new, creative agenda for separation-of-powers theory that focuses not on evaluating existing arrangements or the relative power of the branches, but instead on developing alternative arrangements that maintain the balance of power without imposing skewed costs. The Article illustrates these interventions with novel prescriptions for ongoing legal controversies about the debt ceiling, foreign affairs, legislative standing, and government shutdowns.
author. Associate Professor of Law, Emory Law; Affiliate Faculty, Harvard Law School, Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics. Professor Dorothy Brown’s suggestion that I interrogate appropriations from a critical perspective inspired this Article. Special thanks to Nicholas Bagley, Jesse Cross, Mary Dudziak, Dan Epps, Martha Albertson Fineman, Aila Hoss, Aziz Huq, Howell Jackson, Arminda Lawrence, Arminda Lawrence Jr., Medha Makhlouf, Jonathan Nash, Rafael Pardo, Michael Pollack, Polly Price, Zachary Price, Robert Schapiro, Bijal Shah, Joanna Shepherd, Fred Smith Jr., Raquel Spencer, Kevin Stack, Martin Sybblis, Sasha Volokh, and Carly Zubrzycki, as well as workshop audiences at Emory Law and Dickinson Law. Zahra Ahmed and Nina Goodall-Bernal provided excellent research and Bluebook-ing assistance. Liam Gennari and his colleagues at the Yale Law Journal provided insightful, invaluable editorial assistance and have my gratitude. I am responsible for any errors that remain.
“[T]he values of liberty and accountability protected by the separation of powers belong . . . to the Nation as a whole.”1
—Chief Justice Roberts
“[I]n February, um, we just ate less.”2
At the end of 2018 and stretching into the early days of 2019, a power struggle between the House of Representatives and President Trump produced a partial government shutdown which, among other things, caused a forty-day gap in Supplemental Nutrition Assistance Program (SNAP) benefits not only for the family quoted in the epigraph above but also for millions of other SNAP recipients like them.3 Were their stress and hunger justified? Put aside for a moment the specifics of the dispute between former President Trump and House Speaker Nancy Pelosi and consider instead the laws that empowered them to shut down the government in the first place. Congress could change those laws to prevent shutdowns once and for all. But legal scholars, including myself, have cautioned that if it did, Congress would relinquish its “power of the purse” and thereby undermine values, such as liberty and accountability, advanced by the separation of powers.4 Do you think the SNAP recipients who will go hungry during the next extended shutdown share that view? Will they experience their personal, involuntary sacrifice as worthwhile for the benefits the separation of powers brings the nation as a whole?
Separation-of-powers scholarship does not ask such questions. Legal scholars consider a broad range of values in analyzing “separation-of-powers tools”—that is, the laws and norms that allocate power among actors in the federal system.5 These values include liberty, accountability, deliberation, transparency, antityranny, the rule of law, efficiency, general welfare, and partisan balance.6 Different scholars consider these values in different proportions because there is no “consensus on which values, exactly, the separation of powers is supposed to protect.”7 There is uniformity, however, in this regard: ideals of equity—like whether it is right to make SNAP recipients sacrifice in order to secure liberty and accountability for the nation as a whole—are not among the constellation of values that they consider.8 Indeed, when separation-of-powers scholars have mentioned equity, they have tended to doubt its relevance.9 When allocating power among the branches involves tradeoffs between costs and benefits, separation-of-powers scholars do not ask “who benefits?” or “who pays?”. This leaves what critical-race and feminist theorists call the “subordination question”—are marginalized groups disproportionately burdened?10—unexplored and leaves instances of subordination through separation-of-powers tools unrecognized.11 This Article begins to address this oversight.12
For the first time, this Article asks the subordination question of important separation-of-powers tools and concludes, through case studies and theoretical analysis, that they entail subordination. In other words, these tools burden marginalized groups in order to create generalized benefits for the nation as a whole.13 It then explains that this insight makes it desirable to incorporate antisubordination in the separation of powers; describes how institutional analysis, doctrinal analysis, and the agenda of separation-of-powers theory can do so; and illustrates the relevance of antisubordination to separation-of-powers controversies including the debt ceiling, government shutdowns, Congress’s role in foreign affairs, and legislative standing.
The Article’s foundation is its descriptive contribution. It considers in depth the distribution of costs and benefits associated with three tools that are central to the modern-day functioning of the federal government: legislative appropriations,14 executive conditions,15 and constitutional (non)entrenchment.16 Proponents cite long-term institutional benefits in support of each of these tools. Yet each brings with it real-world harms.17 When scholars and legal policymakers weigh such conflicts between institutional benefits and real-world harms, they compare net overall harms to net overall benefits.18 But asking “who pays?” reveals a pattern: each tool’s benefits are generalized, but its costs are particularized. What’s more, those particularized costs are targeted at marginalized groups, including Native peoples, the poor (which disproportionately means Black people),19 and family caretakers (which disproportionately means women).20
Three case studies centering marginalized perspectives are at the heart of this descriptive contribution. First, the story of Native peoples who rely on the Indian Health Service (IHS) showcases who pays to empower the House and Senate through the “power of the purse.” IHS patients have a saying, “don’t get sick after June,”21 when the fiscal year ends and budgets wane. Many felt the pain of those words during the 2019 government shutdown when they were forced to go weeks with disrupted medical services, including mental-health treatment.22 They paid, and still pay, for the power that the House and Senate derive from leaving Native-trust obligations and other programs that serve the nation’s most vulnerable to annual appropriations while insulating middle-class entitlements with permanent funding.
Second, the story of relief for Puerto Ricans left without food, housing, and electricity after Hurricanes Maria and Irma demonstrates who can pay when the Executive empowers itself by imposing conditions on the implementation of federal programs. Puerto Rico had to wait almost two years for President Trump to release legislatively provided disaster-relief funds on his condition that the territory pay its contractors less than the applicable minimum wage.23 Its residents paid the price for the power that agencies and the Office of Management and Budget (OMB) derive from threatening to withhold funds as a source of policy control.
Third, the story of the Affordable Care Act’s (ACA) ill-fated Prevention and Public Health Fund (PPHF) demonstrates the harms of nonentrenchment rules, which determine the extent to which laws and policies may be changed once set. In 2010, the ACA attempted to guarantee national public-health investment through the PPHF.24 But subsequent Congresses repeatedly raided the fund in the years leading up to the coronavirus pandemic in order to raise reimbursements for doctors and lower taxes for the wealthiest Americans.25 Today, all Americans—but especially Black Americans—are paying the price for the country’s inability to entrench pandemic preparedness.
Each of these case studies reveals a mismatch between the generalized benefits of the laws and norms that empower institutional actors and their problematically targeted costs. Together, they also raise concern about a larger pattern: when empowering actors in the federal system has a particularized price, marginalized groups seem to be the ones who pay it.
This descriptive contribution sets up and motivates the Article’s normative and prescriptive contributions, which call for the incorporation of antisubordination into separation-of-powers analysis and describe how this can be done. Incorporating antisubordination makes sense from both critical and traditional “structural” perspectives. From critical perspectives, the fact that laws and norms allocating power within government are yet another place where the law can be a barrier to equity will surely be no surprise.26 That said, Part III highlights four reasons why laws and norms allocating power are a particularly promising front on which to pursue antisubordination: (1) separation-of-powers laws and norms have the distinctive potential to protect against subordination regardless of which politicians or political parties happen to win office; (2) they are controlled by untapped policy actors who may be amenable to antisubordination arguments; (3) pursuing antisubordination in the design of laws and norms that allocate power within the government would mitigate the biasing influence of economic power in the political process;27 and (4) focusing on the separation of powers shifts focus from individuals to the legal and social structures that shape individual behavior.
Moreover, including antisubordination among the pantheon of values considered in separation-of-powers theory makes sense even from a traditional “structural” perspective. Antisubordination should be considered a “structural” value that is protected at the level of institutional design because it tends to lose out in day-to-day choices about the exercise of power. There is also historical precedent, from the Founding through Reconstruction and the New Deal, for considering antisubordination in structuring the federal system. And even if antisubordination were not appropriately considered an independent separation-of-powers value, it is an important means of advancing other such values, especially liberty and accountability.
The Article differentiates interventions for institutional analysis, doctrinal analysis, and the agenda of separation-of-powers theory. For institutional analysis, all those involved in constructing the separation of powers, from scholars to legislative- and executive-branch policymakers, must be mindful not only of the total costs and benefits of particular arrangements but also of the distribution of those costs and benefits. The subordination question (“who pays?”) should be as familiar to separation-of-powers analysis as is the legal-process question (“who decides?”).28 Asking this simple question can call into doubt prevailing practices and theories. For example, it reveals a powerful distributive argument against choosing the “least unconstitutional option” in the event of a debt-ceiling impasse, as advocated by Neil H. Buchanan and Michael C. Dorf.29
The role of values in doctrinal separation-of-powers analysis is more limited, but courts still have an important part to play. Courts can and should consider antisubordination alongside other structural values in adjudicating separation-of-powers cases. In doing so, antisubordination’s most salient effect may be as a counterweight to historical-gloss and antinovelty arguments, which tend to preserve a status quo which antisubordination seeks to replace.
More inclusive institutional and doctrinal analysis of separation-of-powers questions is only a starting point, however. The recognition that existing separation-of-powers tools entail subordination should motivate a new agenda for the separation of powers focused on creativity and compromise. Actors in the legislative, executive, and judicial branches, as well as civil society and legal scholars, should develop new, fairer alternatives to replace problematic existing arrangements while maintaining the branches’ powers. For example, a “shutdown tax” would ensure the “power of the purse” threatens the nation as a whole, not only those who rely on spending programs.
The stakes are high. The specific instances of subordination described in this Article impact food, housing, health, welfare, and other life essentials for tens of millions of people. They have given rise to some of the most significant public controversies and governmental failures of the past several decades, dominating headlines and livelihoods.30 But by the time disparate harms are actually threatened by particular political actors, it is often far too late to prevent or rectify them through legal processes. Only by intervening at the level of institutional design can harms to marginalized groups be forestalled, regardless of who wins the next election, or the one after that.31
The Article proceeds in four parts. Part I provides background on the means and ends of the separation of powers, describing how modern separation-of-powers scholarship employs a long but incomplete set of values to evaluate laws and norms that empower actors within the federal system. Part II applies the subordination question to three important means of institutional influence: legislative appropriations, executive conditions, and constitutional (non)entrenchment. It uses these case studies to reveal that each tool entails particularized harms that are disproportionately targeted at marginalized groups. In light of this insight, Part III explains that incorporating antisubordination within the separation of powers advances goals of both antisubordination advocates and separation-of-powers theorists. Part IV describes specific interventions for institutional analysis, doctrinal analysis, and the agenda of separation-of-powers theory. It then turns to unanswered questions, including the generalizability of the Article’s descriptive contribution beyond the tools (appropriations, executive conditions, and (non)entrenchment) and context (resource allocation) analyzed here. It illustrates the salience of antisubordination for the separation of powers with novel prescriptions for legal controversies about the debt ceiling, foreign affairs, legislative standing, and government shutdowns.