The Constitutional Principle of Separation of Powers

Merrill, Thomas W.

The "constitutional principle of separation of powers" could be understood to mean any one of several different things. It could mean, as the formalists argue, that each branch has exclusive power to perform a single designated function, unless the Constitution expressly permits an exception. Or it could mean, as the functionalists believe, that courts should strive to maintain a diffusion of power among the branches. Conceivably, it could mean nothing -- the constitutional principle of separation of powers could just be a shorthand reference for the sum of all specific clauses that govern relations among the branches, but add nothing to what these clauses individually require. Each of these interpretations would have serious drawbacks. The exclusive functions construction would be too rigid, the diffusion of power understanding too flexible, and neither comports with the full range of Supreme Court decisions defining the structural Constitution. The conclusion that the principle adds nothing to the specific clauses would be more consistent with the pattern of outcomes reached by the Supreme Court, but would be an open invitation to create a Fourth Branch of government that would permit massive evasions of those clauses in the future.

A better strategy would be to interpret the principle as incorporating a minimal requirement that there be only three branches, with every federal office accountable to one of the constitutional branches. Such an understanding would provide substantial continuity with the past: it would be consistent with the text of the Constitution and with Madison's explanation of the mechanism for preserving the constitutional structure, and would not contradict any of the Supreme Court's judgments in major separation-of-power cases. For the future, it would prevent Congress from circumventing the specific clauses of the Constitution that limit the power of the branches, and would preserve the dynamic tension among the branches that has worked well for over 200 years in maintaining "the liberty and security of the governed."


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University of Chicago Press
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November 5, 2015