Title

The Separation of Powers and the Least Dangerous Branch

Publication Date

Winter 2015

Document Type

Article

Abstract

A snapshot of controversies currently surrounding the President highlights a sobering, even if acceptable, reality: we live in an age of extremely amplified president power. From the executive use of military force with little or no congressional approval, to the use of executive orders to effectively make federal policy without congressional involvement, virtually all of these controversies have a common source: the Court’s relegation of enforcement of the separation-of-powers to the political process.

This Article provides an account of this relegation. It argues that all of the Court’s separation-of-powers decisions — even those seeming to strictly enforce the boundaries of branch power — make the most collective sense when framed as a narrative of ineffective, and thus merely symbolic judicial stand-taking. Much like “major” federalism decisions, “traditional separation-of-powers decisions” have proven doctrinally inconsequential, but have had the systemic effect of allowing the Court to bow out of the most consequential structural disputes in order to accommodate pragmatic governmental creativity. Thus, the trajectory of federalism jurisprudence over the past century helps inform the inevitable fate of its less developed structural cousin, the separation-of-powers.

Publication Title

Georgetown Journal of Law & Public Policy

Volume

13

Issue

1

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