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Separation of Powers As Ordinary Interpretation

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Separation of Powers As Ordinary Interpretation SEPARATION OF POWERS AS ORDINARY INTERPRETATION John F. Manning CONTENTS INTRODUCTION .......................................................................................................................... 1942 I. MODERN SEPARATION OF POWERS DOCTRINE ........................................................ 1950 A. Functionalism .................................................................................................................. 1950 1. A Sketch of Functionalist Principles ...................................................................... 1950 2. Examples of Functionalist Generality Shifting ..................................................... 1952 (a) Underreading a Vesting Clause .......................................................................... 1953 (b) Specific Procedures and General Purposes ....................................................... 1955 B. Formalism ........................................................................................................................ 1958 1. A Sketch of Formalist Principles ............................................................................. 1958 2. Examples of Formalist Generality Shifting ........................................................... 1961 (a) Freestanding Limits on Legislative Oversight ................................................. 1962 (b) Overreading a Vesting Clause ............................................................................ 1965 II. THE CONSTITUTIONAL STRUCTURE AS COMPROMISE .......................................... 1971 A. Levels of Generality in Statutory and Constitutional Law ....................................... 1973 B. Implementing the Separation of Powers: The Specifics ............................................. 1978 C. Implementing the Separation of Powers: The Generalities ....................................... 1985 1. The Functionalist Position ....................................................................................... 1988 2. The Formalist Position ............................................................................................. 1991 D. The Missing Separation of Powers Baseline ............................................................... 1993 1. Intellectual History .................................................................................................... 1993 2. Antecedent Governmental Practice ......................................................................... 1996 3. Records of the Convention ....................................................................................... 1999 (a) Impeachment ........................................................................................................ 1999 (b) Bicameralism and Presentment .......................................................................... 2000 (c) The Appointments Clause .................................................................................. 2002 4. Summary ..................................................................................................................... 2004 III. READING THE CONSTITUTION’S STRUCTURAL ARTICLES ................................... 2005 A. Respecting Specificity ..................................................................................................... 2006 1. Specific Compromise and Maxims of Negative Implication ............................... 2008 2. Questions of Scope .................................................................................................... 2013 B. Respecting Indeterminacy .............................................................................................. 2017 1. The Generality of the Vesting Clauses ................................................................... 2017 2. Indeterminacy and Interbranch “Encroachment” ................................................. 2021 1939 1940 HARVARD LAW REVIEW [Vol. 124:1939 C. Ordinary Interpretation? ............................................................................................... 2024 1. Common Law Meaning ............................................................................................ 2025 2. Practical Constructions ............................................................................................. 2028 3. Structural Inferences ................................................................................................. 2034 CONCLUSION ............................................................................................................................... 2039 SEPARATION OF POWERS AS ORDINARY INTERPRETATION John F. Manning∗ The Supreme Court applies the structural provisions of the Constitution by relying on an overarching framework of “separation of powers.” Its cases reflect two distinct visions of the doctrine. Functionalist decisions presuppose that Congress has plenary authority to compose the government under the Necessary and Proper Clause, subject only to the requirement that a particular governmental scheme maintain a proper overall balance of power. Formalist opinions, in contrast, assume that the constitutional structure adopts a norm of strict separation which may sharply limit presumptive congressional power to structure the government. This Article contends that, to the extent that these theories each rely on a freestanding separation of powers principle derived from the structure of the document as a whole, both contradict the idea that the Constitution is a “bundle of compromises” that interpreters must respect if they are to show fidelity to the constitutionmaking process. The historical record reveals that the founding generation had no single baseline against which to measure what “the separation of powers” would have required in the abstract. The U.S. Constitution, moreover, not only separates the powers of the three branches, but also blends them in order to provide mutual checks among the branches. In so doing, it strikes many different balances and expresses its purposes at many different levels of generality. When a provision carefully specifies which branch will exercise a given power and in what manner, interpreters must respect that specific compromise by prohibiting alternative means of exercising that power. Conversely, when the Constitution speaks indeterminately to a particular question, constitutionmakers should not rely on abstract notions of separation of powers to displace Congress’s assigned power to compose the federal government. Rather than invoking any overarching separation of powers theory, interpreters should apply tools of ordinary textual interpretation to construe the particular clauses that make up the constitutional structure. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Bruce Bromley Professor of Law, Harvard Law School. I am grateful to Akhil Amar, Ra- chel Barkow, Amy Barrett, Lucian Bebchuk, Jack Beermann, A.J. Bellia, Yochai Benkler, Chris- tina Burnett, Bradford Clark, Ariela Dubler, Einer Elhauge, Robert Ferguson, Jody Freeman, Abbe Gluck, Victor Goldberg, Jack Goldsmith, Kent Greenawalt, Philip Hamburger, Oona Hathaway, Aziz Huq, Vicki Jackson, Brett Kavanaugh, William Kelley, Raymond Kethledge, Gary Lawson, Sanford Levinson, James Liebman, Debra Livingston, Elizabeth Magill, Michael McConnell, Daniel Meltzer, Thomas Merrill, Gillian Metzger, Martha Minow, Henry Monaghan, Trevor Morrison, John Nagle, Robert Scott, David Shapiro, Kevin Stack, Matthew Stephenson, David Strauss, Peter Strauss, George Triantis, Mark Tushnet, Amanda Tyler, and Adrian Ver- meule for insightful comments on an earlier draft. I thank Janet Kim, Stephanie Simon, and Ben- jamin Snyder for their expert research assistance and wise counsel on this project. I am grateful for the comments I received at a chair lecture at the Harvard Law School, at the Columbia Law School Faculty Workshop, and at the Notre Dame Law School Roundtable Conference on Separa- tion of Powers. 1941 1942 HARVARD LAW REVIEW [Vol. 124:1939 INTRODUCTION The Supreme Court routinely decides whether particular govern- mental arrangements contravene “the separation of powers.”1 Such cases touch on questions as diverse and important as the validity of a one-house legislative veto,2 the extent of congressional authority to limit presidential removal power,3 the scope of executive privilege,4 the requirements for Article III standing to sue,5 the capacity of non– Article III courts to conduct Article III business,6 and countless other issues relating to the operation of the modern federal government. Be- cause every statutory scheme entails some choice about the distribution of power between or among branches, the composition of virtually any federal instrumentality potentially raises questions under the separa- tion of powers doctrine. Although the Court does not describe its work in this area in cate- gorical terms, legal academics have accurately discerned two basic ap- proaches to separation of powers doctrine. In one set of cases, the Court takes a functionalist approach. In that mode, it rejects the idea “that the Constitution contemplates a complete division of authority between the three branches,”7 stressing instead “that the separation of powers contemplates the integration of dispersed powers into a work- able Government.”8 Cases applying a functionalist approach assume that the constitutional text itself answers very little about the alloca- tion of governmental power among the branches.9 Instead, functional- ists tend to take a consciously purposive
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