The Separation-of-Powers Counterrevolution

abstract. Most jurists and scholars today take for granted that the U.S. Constitution imposes unwritten but judicially enforceable limits on how Congress and the President may construct their interrelationships by statute. This “juristocratic” understanding of the separation of powers is often regarded as a given or inherent feature of American constitutionalism. But it is not. Instead, it emerged from a revanchist reaction to Reconstruction. As an ascendent white South violently returned to power in Washington, its intellectual supporters depicted a tragic era in which an unprincipled Congress unconstitutionally paralyzed the President in pursuit of an unwise and unjust policy of racial equality. Determined to prevent Reconstruction from reoccurring, historians, political scientists, and a future Supreme Court Justice by the name of William Howard Taft demanded judicial intervention to prevent Congress from ever again weaving obstructions around the President. This Lost Cause dogma became Supreme Court doctrine in Myers v. United States. Authored by Chief Justice Taft, the opinion was the first to condemn legislation for violating an implied legal limit on Congress’s power to structure the executive branch. It is today at the heart of an ongoing separation-of-powers counterrevolution.

That counterrevolution has obscured, and eclipsed, a more normatively compelling conception of the separation of powers—one that locates in representative institutions the authority to constitute the separation of powers by statute. This “republican” conception accepts as authoritative the decision of the political branches as to whether a bill validly exercises the Necessary and Proper Clause to carry into execution the powers and interrelationships of Congress, the President, and the executive branch. Where the juristocratic separation of powers undermines both the legal legitimacy of the Court and the democratic legitimacy of the political branches, the republican separation of powers sustains an inherently provisional constitutional order—one grounded in deliberation, political compromise, and statecraft.

authors. Nikolas Bowie is Assistant Professor of Law, Harvard Law School. Daphna Renan is Peter B. Munroe and Mary J. Munroe Professor of Law, Harvard Law School. For generous engagement with this project at various stages, the authors are grateful to Jack Balkin, Andrew Crespo, John Dearborn, Chris Desan, Ryan Doerfler, Ben Eidelson, Blake Emerson, Dick Fallon, Jonathan Gienapp, Annette Gordon-Reed, Mark Graber, Jamal Greene, Steve Griffin, Rick Hills, Vicki Jackson, Alan Jenkins, Mike Klarman, Genevieve Lakier, Daryl Levinson, Sanford Levinson, John Manning, Gillian Metzger, Frank Michelman, Martha Minow, Sam Moyn, David Pozen, Noah Rosenblum, Larry Schwartztol, Ganesh Sitaraman, Stephen Skowronek, Matthew Steilen, Matthew Stephenson, Cass Sunstein, Laura Weinrib, and participants of the Harvard Law School Public Law Workshop. For superb research and editorial assistance, the authors thank Katie Cion, Daniel Ergas, Molly Gupta, Emily Hatch, Ben Miller-Gootnick, Matt Morris, Krupa Patel, Julia Solomon-Strauss, and the editors of the Yale Law Journal.

Introduction

Modern separation-of-powers law is premised on a misunderstanding of what the separation of powers is. Today, judges and lawyers from across the political spectrum take for granted that the U.S. Constitution imposes unwritten but judicially enforceable limits on the power of one branch of government to interfere with the others. Even when the legislative and executive branches agree on what the separation of powers should look like—as when Congress and the President enact a statute that regulates how the executive branch should operate—members of the judicial branch have assumed the responsibility to invalidate such agreements if they conflict with a court’s interpretation of each branch’s implied constitutional prerogatives. Debates over the separation of powers have become debates over which lawyerly method courts should use to establish the Constitution’s true limits.1Although participants disagree on whether these limits should be defined formally or functionally,2 or with reference to original public meaning,3 liquidation,4 or the gloss of historical practice,5 they agree that it is the Supreme Court—using the instruments of legalism—that should decide them.6

This juristocratic separation of powers is often taken as a natural or inherent feature of American constitutionalism. But it took control of the American imagination only in 1926, after centuries in which a profoundly different understanding of the separation of powers was dominant. When John Locke, the Baron de Montesquieu, and other European intellectuals first popularized the separation of the legislative, executive, and judicial powers, they described a system in which each institution of government enforced its own prerogatives through political negotiation and statecraft.7 When American revolutionaries incorporated these insights into their first written constitutions, they drafted the blueprints for a republican separation of powers, anticipating that representative institutions would distill constitutional meaning and enforce constitutional limits as part of the deliberation and compromise necessary to pass legislation.8 While these republican thinkers never settled on a single version of the separation of powers, they viewed separating governmental responsibilities among different institutions as a strategy for developing a rule of law that, consistent with political equality, could prevent domination by any individual or group—be it a monarch or a tribunal.9

“Public opinion sets bounds to every government, and is the real sovereign in every free one,” James Madison wrote during the Constitution’s opening decade, as he and other politicians determined for themselves whether new institutions of government were necessary and proper to carry into execution the brief document’s indeterminate guidelines.10 Even after Marbury v. Madison,11 when the Supreme Court emphatically declared that it would decline to enforce statutes that conflicted with its interpretation of the Constitution, the Court spent the next century deferring to Congress and the President’s judgment about what the relationship between the Executive and Congress should legally entail.12

This republican understanding of the separation of powers was so pervasive that Congress eventually rejected the idea that the constitutionality of an enacted statute could be challenged for violating the separation of powers. After the Civil War, as supermajorities in Congress attempted to reconstruct the South into a racially egalitarian democracy, they also enacted statutes to prevent a hostile President from interfering with their policies. When President Andrew Johnson violated one of these statutes for the asserted purpose of bringing an alleged breach of the separation of powers to the Supreme Court’s attention, Congress impeached and nearly convicted him of violating his constitutional duty to take care that the laws be faithfully
executed.13 Observers who opposed the impeachment on partisan grounds nevertheless also rejected Johnson’s claim that a President could decline to “execute the laws passed over his veto upon matters which in his opinion touch his executive prerogatives.”14 His argument struck many Americans as resonant of a power to dispense with statutes once claimed by the English Crown—a power that had long been repudiated as tyrannical.15

But Reconstruction gave way to a “counter-revolution”: one that overturned not only Congress’s civil-rights legislation but also its decades-long claim of interpretative supremacy.16 In the 1870s, an ascendent white South violently returned to power in Washington, determined to end Reconstruction and prevent it from reoccurring. Where members of earlier Congresses had argued that federalism and the separation of powers were both indeterminate ideas subject to statutory amendment, this new generation of politicians, historians, political scientists, and judges argued that the antebellum constitutional order had been permanently settled by the Constitution’s text and early precedent. From this new generation’s perspective, it was appropriate for President Madison’s First Congress to determine which institutional arrangements were necessary and proper to run the American government, but it was blasphemous for the Reconstruction Congress to reconceive those arrangements. Even worse, the Reconstruction Congress’s tyrannical goal of establishing “congressional supremacy in the conquered South” was only narrowly avoided.17 President Johnson was soon remembered as a tragic hero who would have prevented Congress’s unconstitutional conduct if not for “the meshes which Congress was so mercilessly weaving about him.”18

The lesson one law professor drew from this revisionist history was that the Constitution’s abstract words revealed an objective and precise separation of powers that public opinion and presidential vetoes had proved incapable of enforcing. Steeped in Lost Cause historiography, then-Professor William Howard Taft wrote that only federal judges could effectively determine when a statute impermissibly constrained the presidency—a task he thought “d[id] not involve politics at all or anything like legislative discretion.”19 When he joined the Supreme Court as Chief Justice in 1921, Taft turned this Lost Cause dogma into Supreme Court doctrine. In the 1926 decision of Myers v. United States,20 the Court declared the Reconstruction Congress’s actions unconstitutional—the first time it had ever limited Congress’s power to structure the executive branch.21 The Court also authorized future presidents to violate similar statutes, an ongoing practice that members of the Court, academia, and the executive branch have continued to condone a century later.22

In this Article, we argue that Taft’s ongoing counterrevolution is misguided. Rather than treat the separation of powers as a legal principle of interbranch entitlements secured by judicial enforcement, we contend that the separation of powers is a contingent political practice reflecting the policy needs, governance ideas, and political struggles of the moment. This fundamentally unsettled constitutional framework is not a problem for constitutional law to solve. It is a central normative feature of American constitutional government. A provisional constitutional structure, comprised of statutes, advances the normative values of nondomination, the rule of law, and political equality—that is, the values underlying the republican separation of powers.23 The juristocratic counterrevolution, by design and in its effects, undermines each of these values.

As a principle of constitutional governance, the separation of powers is historically contingent, institutionally arbitrary, and inherently provisional.24 It comprises a set of broad, vague, conflicting, and contested political ideas (thinly connected to sparse and ambiguous constitutional text) and a set of overlapping, interacting institutions that participate in the messy work of national governance.25 There is no essential or immutable separation of powers.

Statutes on this account are foundational to the design of constitutional government, but not because statutes comprise evidence of some settled constitutional meaning or interbranch acquiescence. Rather, legislation constitutes the separation of powers; it offers a durable, though not immutable, means of state-building.

Presidents and members of Congress have long disagreed with one another about whether a particular bill is consistent with the Constitution’s separation of powers—disagreement reflected in the broader polity, and on the Court. We also believe, as do most, that some readings of the Constitution are better than others. But the republican separation of powers relies on representative institutions using political negotiation, statecraft, and the check of public opinion to decide which reading of the Constitution’s abstract commitments to build upon.26 It rejects a juristocratic process by which five jurists who disagree with Congress and the President about which reading of the Constitution’s unfinished blueprint is best can invalidate all institutional arrangements that reflect an alternative, yet still plausible, interpretation.

To be sure, the Constitution uses some explicit language to lay out the terms of engagement between Congress and the President. Article II, for example, guarantees the President’s power “to grant Reprieves and Pardons.”27 But even these explicit rules are remarkably underdetermined. The Constitution does not specify whether other institutions beyond the President may also grant amnesty, nor does it specify whether a President may sign a statute imposing time, place, and manner restrictions on how the pardon power may be exercised. Instead, as Dean John Manning writes in his rejection of a “freestanding separation of powers doctrine,”28 the Constitution’s Necessary and Proper Clause gives Congress broad authority to “compose the government” by enacting legislation that prescribes not only its own powers but also the powers of the other branches.29 Despite the Constitution’s writtenness, therefore, readers “have no basis for displacing Congress’s default authority” merely by showing that a statute regulates another branch’s powers.30

Our account of the separation of powers—which we call the republican separation of powers in contrast with the juristocratic separation of powers—argues that Congress and the President, working through the interbranch legislative process, should decide whether any particular institutional arrangement is compatible with the Constitution’s separation of powers. That is, it is for the representative branches to decide whether a bill validly exercises the Necessary and Proper Clause to carry into execution the powers and interrelationships of Congress, the President, and the executive branch.31 When the Supreme Court confronts a statute that allegedly violates the separation of powers, the normative values underlying the republican separation of powers suggest that the Court should defer to the judgment of the representative branches about what the Necessary and Proper Clause tolerates. We are aware of no statutory design, enacted to date, that we think would violate this standard. Our argument thus repudiates the separation-of-powers counterrevolution, and the demise of the many statutes that it has laid to waste.

In arguing that the separation of powers is a political principle that should be realized through the political process of lawmaking, not judicial review, we recognize that our current moment of hyperpartisanship and antidemocratic politics might prompt unease. A central problem of American political polarization, however, is the inability to act collectively, despite pressing social problems and public concerns. A constitutional doctrine oriented to striking down those legislative compromises that do materialize, merely because they depart from one (or five) jurist’s contested idea of a more desirable interinstitutional template, is a doctrine that inhibits those rare moments of effective self-rule.

This casts a different light on Justice Frankfurter’s familiar observation that “[t]he process of Constitutional adjudication does not thrive on conjuring up horrible possibilities that never happen in the real world and devising doctrines sufficiently comprehensive in detail to cover the remotest contingency.”32 It is not just that a legal doctrine designed to cover these “remotest contingencies” unduly inhibits those innovations in governance that enable the state to meet contemporary problems and changing normative commitments. It is also that such an approach to constitutional adjudication misperceives the features of governance that sustain a working constitutional government. We thus orient our prescription of broad judicial deference around characteristics of provisionality, political compromise, and statecraft—qualities vital to structuring, and sustaining, a republic constituted by statutes.

The Article aims to reconstruct the republican separation of powers in the American constitutional imagination—not because it came first but because we think it is more normatively compelling. Part I elucidates the republican conception in early constitutional theory and practice. Part II documents the juristocratic counterrevolution and offers a historical explanation of its doctrinal and cultural ascendance. The anti-Reconstruction roots of the juristocratic separation of powers reveals the contingency of its current form. Once put in historical context as a twentieth-century phenomenon, as opposed to an eighteenth-century branch of Madisonian thought, we can ask whether there is anything in how it is currently applied that should make us want to preserve it.

Part III takes up that question. It deconstructs the analytical features of the juristocratic separation of powers and their implications for the values of political equality, nondomination, and the rule of law. The juristocratic conception rests on a set of (incompatible) arguments about presidential dispensation. Each is flawed on its own terms, and, moreover, the Constitution supplies no principle for how to choose among them. Instead, the juristocratic separation of powers relies on historical practice—not to contextualize the political development of the state but to produce myths about its fixed character. Ultimately, then, the juristocratic separation of powers makes the discretion of five Justices supreme over institutions that better represent political equality. Judicial domination inhibits the statutory design of the state and makes government less answerable to the people. It also makes it more difficult to hold the President accountable under the law.

Political morality and the norms that comprise it are fundamental features of American constitutional democracy.33 The concern, however, is that our current separation of powers does more to undermine than to promote them. The separation-of-powers counterrevolution is the story of a mythic constitutional presidency increasingly emboldening individual incumbents to defy statutory enactments, finding legitimation and vindication through an ever more politicized judiciary. Perhaps counterintuitively, the legalistic turn has resulted in both juristocracy and a “more than kingly”
Executive.34 Part IV charts a doctrinal path back to the republican separation of powers and investigates, through a few case studies, what its recovery would mean in practice.