Most legal scholarship today takes place outside the public view—in faculty workshops, in academic journals, and sometimes in amicus briefs on issues of national importance. But as the law has become more central to our personal and national lives, it seems more necessary than ever to connect the academy to the larger world. The best work being done at Virginia and at other top schools attempts to make sense of discrepancies that arise (or persist) in the law and examine them in a way that invites understanding or, better still, change. In this way, the practice of law and the production of legal scholarship are very much alike. They both require a broad view of the problem, but also a ceaseless curiosity in teasing out every material issue.
An excellent example of this approach is the series of pieces done by Elizabeth Magill ’95, Joseph Weintraub-Bank of America Distinguished Professor and a respected observer of the grant and reach of executive power. Below is an excerpt from a foundational article on the subject she published in 2001. We think it is a fine introduction to Scholar’s Corner, an occasional feature we debut here to show you more of the daily work and intellectual life of Law School faculty.
“Beyond Powers and
Branches in Separation of
150 U. Penn. L. Rev. 603 (2001)
Elizabeth Magill ’95
The separation of powers provisions of the Constitution are understood as a way of controlling the exercise of state power by fragmenting it among three different institutions and guaranteeing that fragmentation. Conventional separation of powers analysis relies on two mechanisms to achieve and maintain the dispersal of state power: separating legislative, executive, and judicial power in three different branches and preserving a balance among those branches. These ideas are not just the stuff of high school civics class; legal doctrine governing separation of powers questions is built around them …. There is vigorous disagreement about the proper characterization of each of these examples, but there is little controversy about the proper framework within which that debate should proceed.
There should be. The embarrassing secret is that both commitments at the center of separation of powers doctrine are misconceived. The effort to identify and separate governmental powers fails because, in the contested cases, there is no principled way to distinguish between the relevant powers. The available strategies for identifying those differences—and, given the centrality of the question, there are surprisingly few—either rest on formalistic rules that have no content and fail for that reason, or consist of vague normative judgments that cannot work in concrete cases. … [Realistically], we have no way to identify the differences between the powers in contested cases, and we are not likely to have one soon.
The effort to maintain balance among the branches fares no better. An obvious difficulty is that the claims made in the name of inter-branch balance—for instance, that a development has upset the balance of power between the branches—are made without conveying why we should care about that balance. Such claims rest on assumed salient differences between the branches of government; the distribution of authority among the branches matters because those institutions will not decide questions in the same way. That intuition about inter-branch difference is taken as truth, but it is weakly supported and open to question. … Indeed, it is a hopeless enterprise to talk about balance among the branches of government. We have not come close to articulating a vision of what an ideal balance would look like. Even if we had tackled that normative question, we have no way to measure the distribution of power among the branches at any point in time and no method to predict the effect of an institutional arrangement. In short, we do not know what balance means, how to measure it, or how to predict when it might be jeopardized. All these deficiencies are partly explained by the final and most fundamental difficulty with this idea. Inquiring about inter-branch balance is incoherent because it assumes that branches of government are unitary entities with cohesive interests, but that is not true. The institutions of the national government are made up of individuals and sub-institutions with varying incentives that do not neatly track the institution within which they are located.
This Article argues that the two central commitments of contemporary separation of powers law are a failure. Finetuning these ideas will not redeem them. Abandoning these ideas, as we must, will make room for new ways of thinking about separation of powers law.
Reconstructing separation of powers law will be no easy task. Taking seriously the failings of current law offers at least two important lessons for its reconceptualization. The most significant lesson is that if one is interested in fragmenting state power and assuring that it remains fragmented, the failure of the conventional approaches is of little moment. Those approaches seek to disperse the three powers in three balanced branches, in part, so that no single institution controls too much state power. That effort fails. But in the course of noticing that there is no such thing as three essential powers exercised by three undifferentiated branches, we will also notice that government authority is fragmented, widely so, albeit not according to the three powers- in-three-branches formula. Instead, government authority is diffused among a large and diverse set of government decision-makers who have a hand in the exercise of state power. The extent of that diffusion of state power is more than sufficient to put to rest any concerns about dangerous concentrations of government authority. And the character of that fragmentation is such that state power is likely to remain widely dispersed. Because the decision-makers who share in the exercise of government authority have varied incentives—owing to their diverse constituencies, institutional locations, and ways of doing business—there is little chance that they would collude to concentrate government power in a few hands. If diffusion of state authority is what we are after—and that is what conventional approaches in part are seeking—we have it.
Understanding the character of the distribution of government authority also offers a second lesson for separation of powers law. That law aspires to something more than general diffusion of state power; it seeks to match the exercise of particular powers—legislative, executive, judicial—with corresponding institutions that are best suited to exercise those powers. The criticisms offered here suggest that current efforts go about this ambitious undertaking in exactly the wrong way. Conventional thinking about separation of powers operates as if it is meaningful to talk of powers and branches. But our system does not operate at those levels; government authority cannot be parceled neatly into three categories, and government actors cannot be understood solely as members of a branch of government. An effort to match particular state powers with particular government decision-makers must start with an understanding of how those decision-makers might exercise that authority. That requires a fine-grained appreciation of the forces that push and pull government actors in one direction or another. A doctrine built around such understandings will offer no easy answers, but it will at least ask the right questions.