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Posted September 28, 2004

Magill Explains Failure of Rehnquist Court to Revolutionize Separation of Powers

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Prof. Elizabeth Magill said the Rehnquist Court has not been bold on decisions regarding separation of powers.

While the Rehnquist Court is known for pushing federalism in decisions that promote states’ rights, a similar revolution has not occurred with the separation of powers doctrine, said law professor Elizabeth Magill at an American Constitution Society brown-bag lunch Sept. 27. The Court has less incentive to change the doctrine because it protects their own powers and such a shift would not radically change how the federal government operates now.

“The Rehnquist Court is going to be known for good or ill for its federalism revolution,” Magill said. It has tightened up the commerce clause—which allows Congress to regulate interstate commerce and has been used in the past to broaden Congress’ reach—for the first time since the 1930s. The Court has also limited congressional powers through the 10th Amendment, which delegates government powers not outlined in the Constitution to the states and citizens. Under the 11th Amendment the Court has limited citizens’ ability to sue states for money damages. In contrast, the Court upheld the constitutionality of the U.S. Sentencing Commission, an independent agency in the judicial branch that was established by Congress; it invalidated the line-item veto, which had increased the power of the executive branch; and it would not allow the president to delay the lawsuit brought by Paula Jones. There were “no cases that really transformed the doctrine.”

Magill said that because the separation of powers set forth by the Constitution defines what government decision-makers can do, the doctrine may not be as vulnerable to change. On the other hand, federalism may garner more judicial enforcement because of its lack of rules.

Some have explained the lack of a separation of powers revolution by claiming that federalism decisions were previously not in line with the Constitution and the separation of powers decisions were. “This is just a poppycock kind of answer,” Magill said. The scope of what the executive branch does has radically changed since the Constitution was written, for example, with the proliferation of alphabet bureaucracies that have assumed some of Congress’ legislative powers.

Magill posited that there were fewer reasons for Court justices to tamper with separation of powers. Judges have incentives to protect the exercise of their own clout; they would not want Congress to re-open judges’ decisions, for example. The Court has been “protecting its interests in all sorts of odd ways.” The Rehnquist Court upheld the right of district courts to appoint private prosecutors when government prosecutors can’t or won’t proceed with a case because of a conflict of interest or failure to perform. However, the private prosecutor can only seek to be heard by the Supreme Court with the approval of the solicitor general—who, as part of the Department of Justice, is a member of the executive branch.

During the Marshall Court (1801-1835), the justices believed that because congressional powers were broad, they needed broad powers as well. “I think that connection is broken today,” Magill said.

Many separation of powers cases concern the Article II appointments clause, which requires high-level officials like the Secretary of State to be confirmed by the Senate. Whether executive branch appointees are “principal” or “inferior” officers, or just employees, determines whether they need Senate approval.
The appointments clause in action can appear to conflict with the nondelegation doctrine, which says Congress may not delegate its duties under the Constitution to other branches of government without violating the separation of powers. Congress has given away its legislative powers to executive branch agencies—OSHA for example—but the Supreme Court has been silent. “The Court is just completely resistant to changing this approach,” Magill said.

So why, in contrast, has the federalism revolution succeeded? Magill cited the work of a Yale scholar who has argued that the time was right for change. Many forces pushed the country toward a centralized government in the first half of the 20 th century, but now central economic regulations seem less effective. The federal government also lost stature as a moral force after the Vietnam War and Watergate. These changes made it possible to think about transferring authority back to states, Magill summarized.

The forces that push against allowing Congress to delegate broad powers would have to challenge more than regulation itself, Magill said—they would have to question the agency’s role. If the Court invalidated an administrative body, Congress would just re-enact it with it with more specific rules or have a private actor fulfill the function of the agency.

Administrative agencies were designed to solve problems Congress could not directly attend to, but fears emerged in the mid-1960s that the agencies were incompetent or that they were beholden to the forces they were trying to regulate. Magill suggested that such skepticism came at the wrong time, when the question was not on the constitutional table. And now doesn’t seem like the right time to try to invalidate most of the federal government, she added. Furthermore, courts’ statutory review of agencies transformed the regulatory state so agencies could pass muster.

Reactions to the federalism movement are heated—people are excited about it or they hate it, Magill said. Some like the idea that they can live in the state whose laws they prefer. But the question of whether the Securities and Exchange Commission or Congress should craft SEC guidelines yields less debate. “It’s just a puny little decision. It’s just not that significant,” Magill said. The rules likely would not be dramatically different either way. Magill said although many politicians have adopted a federalist stance, it would be hard to imagine anyone running on a separation of powers revolution platform.

The Rehnquist Court has not been bold in all areas of law, as some have suggested, she concluded. “There’s not even a hint of a change in separation of powers.”
• Reported by M. Wood

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