Separation of powers - Horizontal distribution of national power Distribution of national power - Why does separation of powers matter?

• Separation of Powers vs. Checks and Balance

• Separation of Powers. Independence of legislative, executive, and judicial branches.

• Checks and Balances. Interdependence of branches, each needing help of other to accomplish its ends.

• Historical Context

• These devices were not present in AOC, but got added in USC in order to ameliorate expansion of central power.

• These two devices and federalism are the two big restraints on federal government: which is more important?

• Federalist 47(Madison)

• Three branches are not totally separate and distinct.

• However, if any two branches were totally combined, then we would risk tyranny.

• Federalist 48 (Madison)

• Congress needed most checking, because some of constraints envisioned by Federalist 10 would not operate against Congress.

“Congress is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions by means which reason prescribes.”

• As with federalism, point of SOP and CAB is to protect individuals, not institutions.

• Various checks secure realm of private liberty by preventing government from becoming strong enough to invade those liberties.

• What if vigorous government action is necessary to preserve or promote those liberties?

• Political Safeguards argument (JR is unnecessary because each of these institutions can take care of itself.) Does this have more or less persuasiveness here than in context of federalism?

Formalism vs. Functionalism

• Formalism – separation of powers doctrine is governed by relatively clear rules that demarcate separate spheres of governmental authority.

• Formalism is defended on originalist grounds.

• Some formalists argued that SC has good reason to decide cases in formalist way so as to ensure against various problems presented by modern legislative initiatives, even if formalism is not defensible historically.

• Functionalism – advocates more fluid approach that prohibits an “aggrandizement of power” or “undue mingling of functions,” but that allows some overlap and is more receptive to changing boundaries so as to deal with changing situations.

• Some functionalists use originalism to criticize formalism (shown by Flaherty’s argument below).

• Other functionalists concede that formalism is defensible on originalist grounds, but defend functionalism as best way to make sense of constitutional structure under modern circumstances, in which president’s power threatens to undermine constitutional structure.

• Flaherty – originalist defense for flexible approach to separation of powers: Judiciary should not be shielding presidency (most powerful office in nation) from congressional regulation.

• Founders intended for separation of powers to fulfill several goals: balance among branches, accountability to electorate, energetic/efficient government.

• Balance cuts against unitary presidency, but accountability and energy cut in favor of unitary presidency.

• Examination of founders’ intentions shows we do not need to consider balance and accountability/energy as mutually exclusive goals.

1. Founders took balance very seriously. Thus, given rise of administrative state, congressional regulation of executive branch is more crucial than ever before.

2. Contrary to usual assumptions, Founders sought to tame, not further empower, those divisions of government claiming special responsiveness to electorate. Thus, need for congressional regulation is necessary precisely because of modern president’s claim to electoral accountability.

• Werhan. Proposal for reconciling formalism and functionalism

• Separation of powers concept is sufficiently flexible to allow government to make a showing that its departure from the norm is justified and therefore legitimate.

• Government action violating separation norm would survive judicial review only if it were (1) explicitly authorized by USC, or (2) narrowly tailored to achieve an important, overriding government interest.