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Realism in Separation of Powers Thinking, 30 William & Mary Law Review 343 (1989)


The basic difficulty of defining a judicial role in enforcing structural relationships between the branches of the national government is that the various policies informing those relationships seem quite contradictory: separated powers, yet shared and overlapping powers; independence of branch functions, yet functions that check and balance each other; and, in the duality with which Paul Verkuil begins his essay, promoting efficient specialization, but avoiding the tyranny of too much efficiency. Given these dualities, the courts have three options. They must either adopt simplifying mediating principles, or engage in some form of case-by-case balancing to assess the tradeoffs in particular situations, or abandon the project of trying to enforce separation of powers norms.

The Supreme Court in recent years has often invoked mediating principles based on a textual literalism that is very unsatisfactory. Even taking account of the valuable prophylactic functions that rigid, even simplistic, rules can sometimes perform, the Court's approach in cases like Bowsher v. Synar, INS v. Chadha, and Northern Pipeline Construction Co. v. Marathon Pipe Line Co., does not inspire praise. These opinions suffer the sort of flaw that law cannot survive: they describe a normative and actual universe that we all know to be false. Their rigid categories of branch power simplistically disregard the real complexities of government structure as we know it and as our country has known it for a very long time.

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