Ilan Wurman (Arizona State University – Sandra Day O'Connor College of Law) has posted Beyond Formalism and Functionalism in Separation of Powers Law (Minnesota Law Review, forthcoming) (72 pages) on SSRN. Here is the abstract:
The debate between formalists and functionalists over the constitutionality of the administrative state has stalled. On the one hand, formalists argue that modern administrative government violates the separation of powers by unlawfully combining legislative, executive, and judicial power. On the other, functionalists contend that governmental power in contested cases is too hard to classify as legislative, executive, or judicial, such that enforcing the separation of powers is impossible. It would be better to move beyond these conceptions of formalism and functionalism and orient our thinking around exclusive and nonexclusive powers.
The Constitution’s text and structure, and even more so historical practice under it, suggest that some powers strictly and exclusively appertain to a particular branch. Much governmental power, however, is nonexclusive: its exercise has some combination of legislative, executive, and judicial characteristics and, as a result, can be exercised by more than one branch. If functionalism is concerned with identifying the “core” functions of the three branches, the reorientation proposed here would require identifying “exclusive” functions. The central question, however, is not “balance” or “aggrandizement” but whether a function is or is not within a category of exclusive power as a matter of text, structure, and history. But this approach rejects the proposition associated with formalism that power must always be categorized as exclusively legislative, executive, or judicial.
Whatever else it may be, this approach is originalist. That is not to say the Founders specifically understood power in this way; there is little evidence they did so. And few judicial opinions have articulated anything like it. But it is to say that the distinction between exclusive and nonexclusive powers accurately reflects governmental power and is consistent with the Constitution’s text, structure, and history. Reorienting toward exclusive and nonexclusive powers further helps clarify many persistent doctrinal puzzles—from the nature of legislative rules and judicial deference to “quasi” powers and nondelegation. Other insights also emerge, for example with respect to James Madison’s suggestion that the Comptroller of the Treasury was neither executive nor judicial but “rather distinct from both, though it partakes of each,” and to the recently contested question of whether the Supreme Court can hear direct appeals from military courts.
Posted at 6:06 AM