Yale Law Journal – The Separation-of-Powers Counterrevolution

abstract. Most jurists and scholars
today take for granted that the U.S. Constitution imposes unwritten but
judicially enforceable limits on how Congress and the President may construct
their interrelationships by statute. This “juristocratic” understanding of the
separation of powers is often regarded as a given or inherent feature of
American constitutionalism. But it is not. Instead, it emerged from a
revanchist reaction to Reconstruction. As an ascendent white South violently
returned to power in Washington, its intellectual supporters depicted a tragic
era in which an unprincipled Congress unconstitutionally paralyzed the
President in pursuit of an unwise and unjust policy of racial equality.
Determined to prevent Reconstruction from reoccurring, historians, political
scientists, and a future Supreme Court Justice by the name of William Howard
Taft demanded judicial intervention to prevent Congress from ever again weaving
obstructions around the President. This Lost Cause dogma became Supreme Court
doctrine in Myers v. United States. Authored by Chief Justice Taft, the
opinion was the first to condemn legislation for violating an implied legal
limit on Congress’s power to structure the executive branch. It is today at the
heart of an ongoing separation-of-powers counterrevolution.

That counterrevolution has obscured,
and eclipsed, a more normatively compelling conception of the separation of
powers—one that locates in representative institutions the authority to
constitute the separation of powers by statute. This “republican” conception
accepts as authoritative the decision of the political branches as to whether a
bill validly exercises the Necessary and Proper Clause to carry into execution
the powers and interrelationships of Congress, the President, and the executive
branch. Where the juristocratic separation of powers undermines both the legal
legitimacy of the Court and the democratic legitimacy of the political
branches, the republican separation of powers sustains an inherently
provisional constitutional order—one grounded in deliberation, political
compromise, and statecraft.

authors. Nikolas Bowie is Assistant
Professor of Law, Harvard Law School. Daphna Renan is Peter B. Munroe and Mary
J. Munroe Professor of Law, Harvard Law School. For generous engagement with
this project at various stages, the authors are grateful to Jack Balkin, Andrew
Crespo, John Dearborn, Chris Desan, Ryan Doerfler, Ben Eidelson, Blake Emerson,
Dick Fallon, Jonathan Gienapp, Annette Gordon-Reed, Mark Graber, Jamal Greene,
Steve Griffin, Rick Hills, Vicki Jackson, Alan Jenkins, Mike Klarman, Genevieve
Lakier, Daryl Levinson, Sanford Levinson, John Manning, Gillian Metzger, Frank
Michelman, Martha Minow, Sam Moyn, David Pozen, Noah Rosenblum, Larry
Schwartztol, Ganesh Sitaraman, Stephen Skowronek, Matthew Steilen, Matthew
Stephenson, Cass Sunstein, Laura Weinrib, and participants of the Harvard Law
School Public Law Workshop. For superb research and editorial assistance, the
authors thank Katie Cion, Daniel Ergas, Molly Gupta, Emily Hatch, Ben
Miller-Gootnick, Matt Morris, Krupa Patel, Julia Solomon-Strauss, and the
editors of the Yale Law Journal.


Modern separation-of-powers law is premised on a
misunderstanding of what the separation of powers is. Today, judges and lawyers
from across the political spectrum take for granted that the U.S. Constitution
imposes unwritten but judicially enforceable limits on the power of one branch
of government to interfere with the others. Even when the legislative and
executive branches agree on what the separation of powers should look like—as
when Congress and the President enact a statute that regulates how the executive
branch should operate—members of the judicial branch have assumed the
responsibility to invalidate such agreements if they conflict with a court’s
interpretation of each branch’s implied constitutional prerogatives. Debates
over the separation of powers have become debates over which lawyerly method
courts should use to establish the Constitution’s true limits.
participants disagree on whether these limits should be defined formally or
or with reference to original public meaning, liquidation, or the gloss of
historical practice,
they agree that it is the Supreme
Court—using the instruments of legalism—that should decide them.

This juristocratic
separation of powers is often taken as a natural or inherent feature of
American constitutionalism. But it took control of the American imagination
only in 1926, after centuries in which a profoundly different understanding of the separation of powers was dominant.
When John Locke, the Baron de Montesquieu, and other European intellectuals
first popularized the separation of the legislative, executive, and judicial
powers, they described a system in which each institution of government
enforced its own prerogatives through political negotiation and statecraft.
When American revolutionaries
incorporated these insights into their first written constitutions, they
drafted the blueprints for a republican separation
of powers, anticipating that representative institutions would distill
constitutional meaning and enforce constitutional limits as part of the
deliberation and compromise necessary to pass legislation.
While these republican thinkers never
settled on a single version of the separation of powers, they viewed separating
governmental responsibilities among different institutions as a strategy for
developing a rule of law that, consistent with political equality, could
prevent domination by any individual or group—be it a monarch or a tribunal.

“Public opinion sets bounds to every government, and is the
real sovereign in every free one,” James Madison wrote during the Constitution’s
opening decade, as he and other politicians determined for themselves whether
new institutions of government were necessary and proper to carry into
execution the brief document’s indeterminate guidelines.
Even after Marbury v. Madison, when the Supreme
Court emphatically declared that it would decline to enforce statutes that
conflicted with its interpretation of the Constitution, the Court spent the
next century deferring to Congress and the President’s judgment about what the
relationship between the Executive and Congress should legally entail.

This republican understanding of the separation of powers was so
pervasive that Congress eventually rejected the idea that the constitutionality
of an enacted statute could be challenged for violating the separation of
powers. After the Civil War, as supermajorities in Congress attempted to
reconstruct the South into a racially egalitarian democracy, they also enacted
statutes to prevent a hostile President from interfering with their policies.

When President Andrew Johnson violated one of these statutes for the asserted
purpose of bringing an alleged breach of the separation of powers to the
Supreme Court’s attention, Congress impeached and nearly convicted him of
violating his constitutional duty to take care that the laws be faithfully

Observers who
opposed the impeachment on partisan grounds nevertheless also rejected Johnson’s
claim that a President could decline to “execute the laws passed over his veto
upon matters which in his opinion touch his executive prerogatives.”
His argument struck many Americans as
resonant of a power to dispense with statutes once claimed by the English
Crown—a power that had long been repudiated as tyrannical.

But Reconstruction gave way to a “counter-revolution”: one
that overturned not only Congress’s civil-rights legislation but also its
decades-long claim of interpretative supremacy.
In the 1870s, an ascendent white
South violently returned to power in Washington, determined to end
Reconstruction and prevent it from reoccurring. Where members of earlier
Congresses had argued that federalism and the separation of powers were both
indeterminate ideas subject to statutory amendment, this new generation of
politicians, historians, political scientists, and judges argued that the
antebellum constitutional order had been permanently settled by the
Constitution’s text and early precedent. From this new generation’s
perspective, it was appropriate for President Madison’s First Congress to
determine which institutional arrangements were necessary and proper to run the
American government, but it was blasphemous for the Reconstruction Congress to
reconceive those arrangements. Even worse, the Reconstruction Congress’s
tyrannical goal of establishing “congressional supremacy in the conquered South”
was only narrowly avoided.

President Johnson was soon remembered as a tragic hero who would have prevented
Congress’s unconstitutional conduct if not for “the meshes which Congress was
so mercilessly weaving about him.”

The lesson one law professor drew from this revisionist
history was that the Constitution’s abstract words revealed an objective and
precise separation of powers that public opinion and presidential vetoes had
proved incapable of enforcing. Steeped in Lost Cause historiography,
then-Professor William Howard Taft wrote that only federal judges could
effectively determine when a statute impermissibly constrained the presidency—a
task he thought “d[id] not involve politics at all or anything like legislative
When he joined the
Supreme Court as Chief Justice in 1921, Taft turned this Lost Cause dogma into
Supreme Court doctrine. In the 1926 decision of Myers v. United States,

the Court declared the Reconstruction Congress’s actions unconstitutional—the
first time it had ever limited Congress’s power to structure the executive
The Court also
authorized future presidents to violate similar statutes, an ongoing practice
that members of the Court, academia, and the executive branch have continued to
condone a century later.

In this Article, we argue that Taft’s ongoing counterrevolution is
Rather than treat the separation of powers as a legal
principle of interbranch entitlements secured by judicial enforcement, we
contend that the separation of powers is a contingent political practice
reflecting the policy needs, governance ideas, and political struggles of the
moment. This fundamentally unsettled constitutional framework is not a problem
for constitutional law to solve. It is a central normative feature of American
constitutional government. A provisional constitutional structure, comprised
of statutes, advances the normative values of nondomination, the rule of law,
and political equality—that is, the values underlying the republican separation
of powers.
juristocratic counterrevolution, by design and in its effects, undermines each
of these values.

As a principle of constitutional governance, the separation of powers
is historically contingent, institutionally arbitrary, and inherently
It comprises a set of broad, vague,
conflicting, and contested political ideas (thinly connected to sparse and
ambiguous constitutional text) and a set of overlapping, interacting
institutions that participate in the messy work of national governance.
There is no essential or immutable
separation of powers.

Statutes on this account are foundational to the design of
constitutional government, but not because statutes comprise evidence of some settled
constitutional meaning or interbranch acquiescence. Rather, legislation constitutes the separation of powers; it
offers a durable, though not immutable, means of state-building.

Presidents and members of Congress have long disagreed with
one another about whether a particular bill is consistent with the Constitution’s
separation of powers—disagreement reflected in the broader polity, and on the
Court. We also believe, as do most, that some readings of the Constitution are
better than others. But the republican
separation of powers relies on representative institutions using political
negotiation, statecraft, and the check of public opinion to decide which
reading of the Constitution’s abstract commitments to build upon.
It rejects a juristocratic process by which five
jurists who disagree with Congress and the President about which reading of the
Constitution’s unfinished blueprint is best can invalidate all institutional
arrangements that reflect an alternative, yet still plausible, interpretation.

To be sure, the Constitution uses some explicit language to lay
out the terms of engagement between Congress and the President. Article II, for
example, guarantees the President’s power “to grant Reprieves and Pardons.”
But even these
explicit rules are remarkably underdetermined. The Constitution does not
specify whether other institutions beyond the President may also grant amnesty,
nor does it specify whether a President may sign a statute imposing time,
place, and manner restrictions on how the pardon power may be exercised.
Instead, as Dean John Manning writes in his rejection of a “freestanding
separation of powers doctrine,”
the Constitution’s
Necessary and Proper Clause gives Congress broad authority to “compose the
government” by enacting legislation that prescribes not only its own powers but
also the powers of the other branches.

Despite the Constitution’s writtenness, therefore, readers “have no basis for
displacing Congress’s default authority” merely by showing that a statute
regulates another branch’s powers.

Our account of the separation of powers—which we call the republican separation of powers in
contrast with the juristocratic
separation of powers
—argues that Congress and the President, working
through the interbranch legislative process, should decide whether any particular institutional arrangement is compatible with the
Constitution’s separation of powers. That is, it is for the representative
branches to decide whether a bill validly exercises the Necessary and Proper
Clause to carry into execution the powers and interrelationships of Congress,
the President, and the executive branch.
When the Supreme Court confronts a
statute that allegedly violates the separation of powers, the normative values
underlying the republican separation of powers suggest that the Court should
defer to the judgment of the representative branches about what the Necessary
and Proper Clause tolerates. We are aware of no statutory design, enacted to
date, that we think would violate this standard. Our argument thus repudiates the
separation-of-powers counterrevolution, and the demise of the many statutes
that it has laid to waste.

In arguing that the separation of powers is a political
principle that should be realized through the political process of lawmaking,
not judicial review, we recognize that our current moment of hyperpartisanship
and antidemocratic politics might prompt unease. A central problem of American political polarization,
however, is the inability to act
collectively, despite pressing social problems and public concerns. A constitutional
doctrine oriented to striking down those legislative compromises that do
materialize, merely because they depart from one (or five) jurist’s contested
idea of a more desirable interinstitutional template, is a doctrine that
inhibits those rare moments of effective self-rule.

This casts a different light on Justice Frankfurter’s
familiar observation that “[t]he process of Constitutional adjudication does
not thrive on conjuring up horrible possibilities that never happen in the real
world and devising doctrines sufficiently comprehensive in detail to cover the
remotest contingency.”
It is not
just that a legal doctrine designed to cover these “remotest contingencies”
unduly inhibits those innovations in governance that enable the state to meet
contemporary problems and changing normative commitments. It is also that such
an approach to constitutional adjudication misperceives the features of
governance that sustain a working constitutional government. We thus orient our
prescription of broad judicial deference around characteristics of
provisionality, political compromise, and statecraft—qualities vital to
structuring, and sustaining, a republic constituted by statutes.

The Article aims to reconstruct the republican separation of
powers in the American constitutional imagination—not because it came first but
because we think it is more normatively compelling. Part I elucidates the
republican conception in early constitutional theory and practice. Part II
documents the juristocratic counterrevolution and offers a historical
explanation of its doctrinal and cultural ascendance. The anti-Reconstruction
roots of the juristocratic separation of powers reveals the contingency of its
current form. Once put in historical context as a twentieth-century phenomenon,
as opposed to an eighteenth-century branch of Madisonian thought, we can ask
whether there is anything in how it is currently applied that should make us
want to preserve it.

Part III takes up that question. It deconstructs the
analytical features of the juristocratic separation of powers and their
implications for the values of political equality, nondomination, and the rule
of law. The juristocratic conception rests on a set of (incompatible) arguments
about presidential dispensation. Each is flawed on its own terms, and,
moreover, the Constitution supplies no principle for how to choose among them.
Instead, the juristocratic separation of powers relies on historical
practice—not to contextualize the political development of the state but to
produce myths about its fixed character. Ultimately, then, the juristocratic
separation of powers makes the discretion of five Justices supreme over
institutions that better represent political equality. Judicial domination
inhibits the statutory design of the state and makes government less answerable
to the people. It also makes it more difficult to hold the President
accountable under the law.

Political morality and the norms that comprise it are
fundamental features of American constitutional democracy.

The concern, however, is that our current separation of powers does more to
undermine than to promote them. The separation-of-powers counterrevolution is
the story of a mythic constitutional presidency increasingly emboldening
individual incumbents to defy statutory enactments, finding legitimation and
vindication through an ever more politicized judiciary. Perhaps
counterintuitively, the legalistic turn has resulted in both juristocracy and a
“more than kingly”
Part IV charts a doctrinal path back
to the republican separation of powers and investigates, through a few case
studies, what its recovery would mean in practice.