[Paleopsych] NULR: The Rehnquist Court: The Revolution That Wasn't

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                        Northwestern University Law Review
                                    Fall, 2004

[Calabresi's reply follows.]

NAME: M. Elizabeth Magill*

BIO: * Professor of Law, John V. Ray Research Professor, University of Virginia 
School of Law. Thanks to Lillian BeVier, Eric Claeys, John Harrison, John 
Jeffries, Mike Klarman, Daryl Levinson, Dick Merrill, Jennifer Mnookin, Jim 
Ryan, John Setear, Larry Walker, and participants in the summer faculty 
workshop series at University of Virginia School of Law School for helpful 
comments and conversation. Emil Barth, Jeremy Byrum and Anne Ralph provided 
excellent research assistance. The title of this article echoes the book on the 
Burger Court edited by Vince Blasi, The Burger Court: The Counter-Revolution 
that Wasn 't (1983). This paper was prepared for an April 2004 conference on 
the Rehnquist Court held at Northwestern University School of Law. I thank the 
participants in that conference for their comments, and I am especially 
grateful to Professor Steve Calabresi for his thoughtful and useful commentary 
on my paper.

  ...  A principal legacy of the Rehnquist Court is its revitalization of 
doctrines associated with federalism. ... In contrast to the Rehnquist Court's 
federalism decisions, these cases had no notable impact on separation of powers 
law. ...  The Court has evaluated statutes that prevent the President from 
firing an officer based on policy difference (Humphrey's Executor, Morrison), 
that condition the President's removal on the Senate's consent (Myers), that 
involve Congress or the judiciary in the appointment or removal of the officer 
(Morrison, Mistretta, Buckley v. Valeo, Bowsher v. Synar ), and that appoint a 
judge or a Member of Congress to exercise governmental authority (Mistretta, 
Metropolitan Washington Airports Authority v. Citizens for Abatement of 
Aircraft Noise, Inc. ...  Mistretta involved a creative appointment arrangement 
of another sort. ...  Put the two together - protection of the judicial power 
and the integrity of the judiciary, and evaluation of appointment or removal 
arrangements that involve the Appointments Clause - and there is a large body 
of separation of powers law. ...  If the Court rejects one claim (advice and 
consent to removal is not implied by advice and consent to appointment) it may 
at the same time be embracing another (advice and consent to removal interferes 
with the exercise of executive power). ...


   I. Introduction

  A principal legacy of the Rehnquist Court is its revitalization of doctrines 
associated with federalism. That jurisprudence has many critics and many 
defenders. They disagree about how to describe what has happened, the 
importance of what has happened, and the wisdom of what has happened. But they 
all agree that something has happened. There has been genuine innovation in 
this area of constitutional law.

   Not so with separation of powers doctrine. Commentators do not perceive 
important shifts in the doctrine. Nor should they - the reasoning and results 
in the Rehnquist Court cases are of a piece with what came before. Lack of 
"revolution" (using the term loosely) was not for lack of opportunity. The 
Supreme Court had many opportunities to revise its doctrines. And, from the 
perspective that the Court has invoked in explaining many of its federalism 
cases, there is much - very much, in fact - that is not right about the 
structure of the federal government and the constitutional rules that permit 
that structure.

   This paper asks why there has been no "revolution" in separation of powers 
jurisprudence during the Rehnquist Court. Many would expect doctrinal 
developments in federalism and separation of powers to track one another. 
Investigating why they have not done so reveals, in fact, that the internal and 
external factors that influence the developments in the two areas are quite 


   II. Reading the Rehnquist Court

   A. A Federalism Revolution

  The Rehnquist Court has worked important changes in the doctrines relating to 
federalism. For the first time since the post-New Deal period, the Court has 
invalidated some acts of Congress as beyond the scope of the commerce power, 
making clear in the process that there are some judicially enforceable outer 
limits on the scope of that power. n1 It has also invalidated some acts of 
Congress on Tenth n2 and Eleventh Amendment n3 grounds. And it has held invalid 
some exercises of Congress's power under Section 5 of the Fourteenth Amendment. 
n4 While their long-range effects are not entirely clear, taken together the 
Court's rulings plainly restrict the scope of federal power.

   B. Separation of Powers

  The Rehnquist Court had a steady stream of separation of powers cases, n5 and 
it becomes a flood if one includes Article III standing cases. n6 Several of 
the cases were high-profile and politically salient. The Court validated the 
Independent Counsel Act n7 and the creation of the U.S. Sentencing Commission; 
n8 it invalidated the line-item veto n9 and rebuffed President Clinton's 
executive-power based claim that he was entitled to a stay in [*49] a civil 
suit arising out of actions he took before he was President. n10 There were 
low-profile cases as well, some of them consequential. The Court invalidated a 
statute extending the statute of limitations for securities fraud cases; n11 it 
rejected a challenge to a statute on Origination Clause grounds; n12 it 
sustained delegations of authority from Congress to the executive n13 and the 
judiciary; n14 and it evaluated several Appointments Clause cases. n15

   In contrast to the Rehnquist Court's federalism decisions, these cases had 
no notable impact on separation of powers law. This claim is difficult to 
prove. For instance, perhaps some years hence the line-item veto case will be 
the centerpiece of an invigorated separation of powers jurisprudence. Oddly 
enough, that invigorated doctrine could go in two different directions. If the 
dissenters' views of what was at stake in the case-namely, that the case was 
about the permissible scope of delegations to the executive n16 - the 
invalidation of the veto could conceivably later be read to restrict the sort 
of authority Congress can delegate to the executive. Or the case might be read 
as a pro-legislative power opinion in the sense that the functional complaint 
about the veto was that it diminished legislative power relative to the 
President. The President's power was enhanced, so went the argument, because 
the line-item veto undermined Congress's ability to get what it wanted by 
bundling proposals together and forcing the President to an all-or-nothing 
choice on a Congressionally-designed package. n17 On that reading, the 
invalidation of the line-item veto could portend other Congress-friendly 

   These speculative predictions notwithstanding, most commentators do not 
perceive dramatic changes in separation-of-powers jurisprudence. As for the 
black-letter doctrine itself, only one case (Morrison v. Olson, discussed [*50] 
shortly) self-consciously adjusted the existing doctrine in the way that is 
evident in some federalism cases. There are not signals of a quiet revolution. 
The court decided several delegation cases, applying the "intelligible 
principle " test and upholding all of the delegations. n18 It evaluated several 
appointments arrangements, largely applying the pre-existing framework. n19 
Mistretta, n20 the Line-Item Veto Case, n21 and Clinton v. Jones n22 all 
applied already established frameworks. The court can subtly change the 
framework by applying it in a new way, but the outcomes in those three cases 
are unremarkable. In Mistretta, the Court clearly perceived the question as 
difficult. But, in light of the legitimacy of independent agencies (both the 
work they do under the understanding of the non-delegation doctrine and that 
their "independence" is constitutional), that result is far from shocking. The 
Court invalidated the narrowly drawn line-item veto but, in [*51] doing so, the 
Court applied the standard tools of analysis. Justice Stevens' opinion for the 
Court, in fact, reads much like Chief Justice Burger's opinion in Chadha. 
According to these two majorities, the legislative and the line-item veto ran 
afoul of the bicameralism and presentment requirements of the Constitution. n23 
Whether either "veto" violated the relevant Constitutional rules was open to 
question, n24 but the similar decision-making method in the two cases is the 
point here. Finally, Clinton v. Jones, for all its political salience, was a 
routine application of principles developed in earlier cases. n25

   Morrison is the only case that could not be described as ho-hum. That case 
explicitly adjusted the rules about permissible removal arrangements that were 
set forth in Myers v. United States n26 and Humphrey's Executor v. United 
States. n27 Myers held that Congress could not require that a postmaster's 
removal by the President be contingent on the advice and consent of the Senate. 
n28 Although a dispute about a postmaster's removal might seem obscure, the 
holding was consequential because it meant the judicially imposed demise of the 
Tenure in Office Act. The Tenure in Office Act, of course, was an 1867 statute 
dictating that an officer appointed with Senate consent held office until the 
Senate approved the officer's successor. n29 President Johnson was impeached in 
1868, but not convicted, for discharging the Secretary of War in violation of 
the statute. n30 It was not until Myers in 1926 that the Court decided the 
constitutionality of such an act. The Myers Court's vindication of Presidential 
removal authority, however, was short lived. The holding was importantly 
limited just nine years later, in 1935's Humphrey's Executor. There, the Court 
held that Congress could, by providing commissioners of the Federal Trade 
Commission a form of tenure, limit the President's ability to fire such a 
Commissioner based on policy differences. n31 The Court in Humphrey's Executor 
distinguished [*52] Myers as involving a "purely executive" officer. Until 
Morrison, then, the constitutional line between Myers and Humphrey's was the 
difference between "purely executive" officers (that the President had the 
power to remove without any interference from Congress) and quasi-legislative 
and quasi-judicial officers (where Congress could limit the President's removal 
authority by providing tenure protection). n32

   After Morrison, Congress's ability to limit the President's power of removal 
no longer turns on whether the officer is exercising "purely executive" 
authority. n33 After Morrison, the question is whether the tenure protection 
interferes with the President's ability to perform his executive functions, 
including his duty to "take care that the laws be faithfully executed." n34 
This is an important change in the doctrine, and the result in the case - the 
idea that there can be an "independent" prosecutor in the executive branch - 
makes one sit up and take notice.

   But Morrison does not a revolution in separation-of-powers doctrine make. 
The doctrinal adjustment was already implicit in the arrangements sanctioned by 
Humphrey's Executor. Independent agencies like the Federal Trade Commission, in 
addition to their "quasi" legislative and judicial functions, also perform some 
"purely executive" functions. To the extent that for-cause limitations could be 
imposed on officials that performed any executive functions, even if they did 
not perform solely executive functions, the Myers line was not fully respected. 
Morrison admitted what had been true in practice.

   Morrison also respected another part of the pre-existing Myers/Humphrey's 
Executor framework. In addition to distinguishing between purely executive and 
non-purely executive officers, that framework distinguished between direct 
(Myers tenure-in-office act type arrangements where the Senate had to consent 
to the removal) and indirect (Humphrey's Executor for-cause tenure protection) 
congressional involvement with removal. The independent counsel's tenure was 
protected by the indirect method and in that sense it is not surprising that 
the Court viewed it as permissible. Finally, to focus directly on the 
comparison between two areas of law that is the question of this paper, to the 
extent that Morrison does represent important evolution in the doctrine, it is 
away from, not toward, the evolution evident in the federalism cases. The 
federalism cases are often defended as movement in the direction of a 
historically sanctioned allocation of authority between the federal and state 
governments. But Morrison moves away from, rather than toward, such historical 

   Perhaps this relative stasis in separation of powers law can be easily 
explained. One might argue that federalism doctrines, until the Court adjusted 
them, were inconsistent with a proper understanding of the constitution [*53] 
(however one defines "proper") while separation of powers jurisprudence closely 
tracked such understandings. But this is not satisfying. The federalism cases 
are often defended as bringing the law into line with historically-sanctioned 
understandings of the appropriate constitutional balance between the state and 
federal governments. A similar case for reform of the law can be made in the 
separation of powers area. Consider administrative and independent agencies, 
perhaps the most obvious arrangements that are in tension with both textual and 
historical constitutional commitments. Delegations of authority to these 
entities outstrip any that early Congresses, much less Framers of the 
Constitution, could possibly have imagined. Those agencies not only issue 
general rules resolving questions that one might think should be addressed by 
statutes (trade-offs between health benefit and cost, for instance), but they 
are permitted to adjudicate individual controversies. The actions these 
agencies perform are constitutionally permissible under the nondelegation 
doctrine and the doctrines that permit Article I courts. Officers that direct 
independent agencies can also be insulated from the President in various ways. 
These present-day institutional arrangements are, at a minimum, in tension with 
the text and the historical understanding of the provisions of the constitution 
that touch on separation of powers. There are other examples as well. 
Congress's now routine approval of omnibus bills diminishes the power of the 
President's veto. n35 The scope and breadth of Presidential lawmaking, through 
Executive Orders primarily, has grown dramatically over time. n36 There is thus 
no [*54] shortage of examples of institutional arrangements and practices that 
are hard to square with the text and the historical understanding of the 
constitution. The Court's failure to revise separation of powers law, in other 
words, cannot be explained as a product of correspondence between a proper 
understanding of the constitution (as that is understood in the federalism 
cases) and the Court's separation of powers jurisprudence. n37

   In fact, in reviewing the Rehnquist Court's separation of powers cases, one 
is struck by just how tame they are. In a period where the Court seems willing 
to upset some old assumptions about the allocation of authority between the 
federal and state governments, the Court shrinks from any interpretation that 
would work a serious change in either the doctrine or in the structure of the 
federal government. The only two outliers are Justice Thomas and Justice 
Scalia. Justice Thomas, writing for himself, has asked whether the test that 
has long served as the touchstone of the non-delegation doctrine - which asks 
whether Congress has provided an "intelligible principle" to guide the exercise 
of discretion - serves to prevent "cessions of legislative power." n38 "I 
believe," he wrote, "that there are cases in which the principle is 
intelligible and yet the significance of the delegated decision is simply too 
great for the decision to be called anything other than "legislative.'" n39 
Justice Thomas's doubts are a notable development, but it is equally notable 
that he is alone. Justice Scalia has also played the lone wolf. He dissented by 
himself in the cases validating the Independent Counsel Act n40 and the U.S. 
Sentencing Commission. n41 He has also expressed qualified support for notions 
of a unitary executive, arguments that have attracted few adherents. n42

    [*55] Lack of innovation in separation of powers law was also not for lack 
of opportunity. The Court had cases that it could have used as opportunities to 
revise the law along any of the possible dimensions - the relationship between 
the legislature and the executive, between the legislature and the courts, and 
between the executive and the courts. There were a number of non-delegation 
doctrine cases that presented opportunities to re-think that doctrine n43 and 
several cases evaluating appointment and removal arrangements for officers that 
could have permitted the Court to re-think its stance there as well. n44

   III. Why No Revolution?

  One might have thought that developments in separation of powers doctrine 
would mimic developments in federalism law. If the evolution evident in 
federalism doctrines is a result of evolving methods of interpretation - the 
rise of more historically n45 or textually n46 minded constitutional 
interpretation, for instance - wouldn't that also suggest changes in separation 
of powers law? Some have explained federalism developments as part of the 
Court's new-found confidence, even arrogance, in its exercise of judicial 
review, a confidence that makes it more willing to invalidate the acts of the 
legislature without angst about the counter-majoritarian nature of its 
decisions. n47 But, if jurisprudential trends are changing or if the Court is 
newly bold, such developments should affect other areas of law. In particular, 
they should have implications for separation of powers doctrine. Federalism and 
separation of powers provisions of the constitution are both "structural," that 
is, they channel authority to government decisionmakers rather [*56] than place 
substantive limits on the actions of any and all government decisionmaking. 
Just as some have argued that the balance between federal and state power 
should be resolved by politics, n48 so too have some argued that the division 
of authority among the three branches of the national government should be left 
to politics. n49 At least as a starting point, then, federalism and separation 
of powers doctrines can both be considered apples. Why don't they ripen and 
fall off the tree together?

   This Part stakes out answers to that question. It identifies both internal 
and external influences on separation of powers doctrine, suggesting that, 
while there may be important analogies between the two areas of law, it is the 
dis-anologies that help explain the distinctive patterns in the Rehnquist 

   * * * The first two arguments suggest that the Court is unlikely to forsake 
judicial enforcement of many of the separation of powers provisions of the 
Constitution. These arguments identify judicial incentives to protect the 
exercise of judicial power that are in play in some separation of powers 
controversies and factors that make certain separation of powers questions 
eminently justiciable. These factors help explain why the Court is likely to be 
continuously in the separation of powers business, and by that I mean relying 
on doctrines that will sometimes result in the invalidation of the actions of 
other governmental actors. As a result, the Court is unlikely to announce, as 
in Garcia v. San Antonio Metropolitan Transit Authority, n50 the explicit 
nonjusticiability of certain separation of powers questions or, as in the 
combined effect of Wickard v. Filburn n51 and United States v. Darby, n52 to 
implicitly state that anything goes. Given the factors identified below, in 
other words, parts of separation of powers law will be more static across time 
than federalism doctrines.

   A. Judicial Incentives and the Protection of the Independent Judiciary

  The most straightforward reason we are unlikely to see a full retreat from the 
enforcement of separation of powers provisions of the Constitution is the 
unique interest that the Court has in this field. To put the point simply: When 
the Court perceives a threat to the exercise of federal judicial power, it will 
act to protect the exercise of that authority. Fulfillment of [*57] that 
function alone would count as a separation of powers jurisprudence. More 
speculatively, I suggest that the Court's instinct to protect its own interests 
may make it more willing to seriously entertain other separation of powers 

   If the Court perceives the exercise of judicial power to be threatened or 
the judiciary compromised, the Court will act to protect itself. There are many 
cases historically that provide evidence for that proposition, and there are a 
striking number of cases in the Rehnquist Court that provide evidence for it as 
well. The most straightforward is Plaut v. Spendthrift Farm, Inc., n53 where 
the Court held that Congress's extension of the statute-of-limitations for a 
class of securities fraud claims constituted an invasion of the judicial power 
because it required the re-opening of final judgments. n54 Sometimes threats to 
the judiciary do not come from statutes. In Young v. United States ex rel. 
Vuitton et Fils, S.A., n55 the Court held that a federal court can appoint, 
subject to some limitations, a private prosecutor in order to prosecute a 
criminal contempt. Such authority, the Court reasoned, prevented court 
dependency on the cooperation of the executive for the investigation and 
prosecution of criminal contempts. n56

   Protection of the interests of the judiciary also pops up in all sorts of 
not-so-on-point situations. The Court's reading of Section 5 of the Fourteenth 
Amendment in City of Boerne v. Flores bristles with indignation over Congress's 
perceived attempt to challenge what the Court views to be its superiority in 
the interpretation of the Constitution. n57 As a matter of [*58] statutory 
interpretation, the Court held that the Federal Election Commission cannot seek 
certiorari in the Supreme Court without the Solicitor General's advance 
permission. n58 The Court held the same with respect to the private prosecutor 
that it authorized District Courts to appoint in Young; in that case, the 
holding went against the views of the Solicitor General himself. n59 These 
rulings are easily explicable; they serve the interest of the Court by making 
sure it hears a single, familiar, and credible voice. Finally, one last example 
comes from the Court's invalidation of statutory restrictions on the types of 
claims that Legal Services Corporation-funded lawyers can bring. There, the 
Court reasoned that the restrictions were invalid in part because they might 
limit the arguments that lawyers could make to a court. n60 If one is looking 
for judicial attention to the interests of the courts, one finds it in all 
sorts of places.

   To understand some Rehnquist Court cases from this "court protection" 
perspective is a little more complicated. The Court's Article III standing 
cases, Lujan v. National Wildlife Federation, n61 for instance - can be 
understood to be about the protection of the judiciary's interests. In Lujan, 
the Court is declining to hear a category of cases, which might be considered 
contrary to its interest in maximizing its power. But that is a naive 
interpretation. n62 One must notice that the Court is deciding not to hear 
cases that Congress, through broad citizen suit provisions, would like federal 
courts to hear. One explanation for the standing cases is that the Court will 
not hear cases that undermine what the Court views to be its appropriate role. 
That is about protecting the judiciary even if, narrowly understood, it is 
about not hearing a particular case.

   Sustaining the U.S. Sentencing Commission is likewise hard to understand 
from a "protection of the judiciary" perspective. The claims against that 
Commission were that Congress delegated legislative power inappropriately (a 
claim the Court easily dismissed) and, more particularly, that Congress could 
not assign this particular task to an entity in the judicial branch because it 
was not the exercise of a judicial power and the assignment threatened the 
independence of the judiciary. How could sustaining such an arrangement protect 
both general judicial interests and the specific exercise of the judicial 

   One can plausibly understand Mistretta as protecting judicial interests by 
focusing on the internal hierarchy of the courts. A more objective sentencing 
[*59] system is something that district court judges might resist, but not 
necessarily something that appellate courts would resist. Objectivity in 
sentencing makes review of sentencing decisions easier. If one thinks of 
appellate courts as managers, the Sentencing Commission is a manager's dream. 
All the better that it is housed in the judiciary and run in part by judges. As 
for the Supreme Court's evaluation of the structure and location of the 
Commission, the Court was concerned about the potential for the Commission to 
threaten the independence or the integrity of the judicial branch. It was 
simply not persuaded that the Commission presented such a threat.

   Whether an outside observer can understand the standing cases, Mistretta or 
Morrison, as consistent with the protection of judicial power or of the 
judiciary as an institution is distinct from whether the judiciary perceives 
itself to be protecting itself. It is not easy to construct a positive theory 
of what counts as a threat to the judiciary and what does not. To take some of 
the puzzling cases of the Rehnquist Court, the Court viewed the statute at 
issue in Plaut v. Spendthrift Farm, Inc. n63 to invade the judicial power while 
the statute at issue in Miller v. French n64 did not. Nor did the Court view 
the courts' role in the appointment of the Independent Counsel, or the 
structure and location of the Sentencing Commission, to be a threat. These 
conclusions are puzzling to many. But it matters little whether we would 
endorse the Court's implicit vision of what qualifies as an invasion of the 
judicial power or a threat to the independence of the judiciary. That question 
is distinct from the more basic point here: When the Court perceives such a 
threat, it will rebuff it.

   It matters for separation of powers law that the Court will reliably protect 
what it perceives to be its interests. In the first place, as long as the Court 
is willing to police the boundary between judicial power and legislative or 
executive power and ask whether some assignment threatens the independence or 
integrity of the judicial branch of government, then, voila, that is a 
separation of powers jurisprudence. If the Court will always reliably protect 
itself, in other words, there will never be a Garcia in certain parts of 
separation of powers law.

   Such court protection may have broader implications as well. When the Court 
is policing the boundaries of judicial power and protecting the integrity of 
the judicial branch, it is also more likely to be in the separation of powers 
business generally speaking. That is, it will be more willing to consider, and 
even protect, what it considers to be the interests of the other institutions 
of the federal government. This claim seems plausible, though it cannot be 
proven. If the Court is protecting its own authority (Plaut is an example) and 
carefully inspecting arrangements to make sure its integrity and independence 
are not undermined (Morrison, Mistretta), then it would be a little odd for the 
Court to explicitly state or implicitly suggest that the [*60] boundaries of 
the powers of other branches and the integrity of those branches are beyond 
judicial ken. If this is right, the Court will hear the claim that the 
line-item veto diminishes the authority of Congress; it will hear and take 
seriously the claim that the Independent Counsel threatens to undermine the 
executive by weakening the President's control over the exercise of executive 

   By comparison, there is no equivalent judicial interest in federalism 
doctrines. At one time, perhaps there was. If the authority of the federal 
courts were linked to the authority of the federal government more generally, 
then federal courts interested in protecting their own stature and authority 
would have an interest in expansive interpretations of federal legislative or 
executive power. n65 But that connection seems to have been attenuated today. 
The Court's conclusion in United States v. Lopez, for instance, that the 
Gun-Free School Zones Act exceeds Congress's commerce power n66 does mean that 
there will not be federal question cases arising under that statute in federal 
courts. But this enforcement of the commerce power does not seem to imply any 
limitation on the important prerogatives of federal courts, such as the scope 
of judicial review, or the deference the Court owes to state and federal 

   B. The Eminent Justiciability of Certain Separation of Powers Questions

  1. Appointment and Removal Arrangements. - Separation of powers doctrine has 
long been populated with a large share of cases that evaluate how officials 
exercising governmental power are appointed or removed. The Court has evaluated 
statutes that prevent the President from firing an officer based on policy 
difference (Humphrey's Executor, Morrison), that condition the President's 
removal on the Senate's consent (Myers), that involve Congress or the judiciary 
in the appointment or removal of the officer (Morrison, Mistretta, Buckley v. 
Valeo, n67 Bowsher v. Synar n68), and that appoint a judge or a Member of 
Congress to exercise governmental authority (Mistretta, Metropolitan Washington 
Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc. n69). Over 
the years, there have been many [*61] such arrangements and the Supreme Court 
has been willing to evaluate their constitutionality.

   Is this obsession with appointment and removal evidence of lawyers' capacity 
for paying attention to the trees and not the forest? As a result of the 
toothless nondelegation doctrine, the Court does not police what many 
government officials are authorized to do, but is for some reason intensely 
interested in the mechanics of their appointment and removal. As I argue below, 
this criticism is off the mark; these cases should instead be understood as 
evaluating part of the forest. But the point for present purposes is that the 
existence of such arrangements and the Court's willingness to develop a body of 
doctrine that evaluates them helps explain why important parts of separation of 
powers doctrine have not gone through periods, as federalism doctrines have, of 
explicit or implicit nonjusticiability.

   A striking number of the Supreme Court's separation of powers cases have 
always been about the appointment or removal of various officers. It surprises 
many to find out that Humphrey's Executor, a pillar of the law making 
independent agencies constitutional, turns on whether the appointment 
arrangements-and, specifically, the restrictions on the President's authority 
to remove such officers - for such officers are constitutional. Under 
Humphrey's Executor, Congress can insulate officers who perform quasi-judicial 
and quasi-legislative functions from the President by providing them a form of 
tenure. n70 While less clear, Congress can also apparently limit the 
President's appointment power by specifying bipartisanship (half from each 
party) on multi-member commissions n71 or requiring the President to choose 
from a limited list of appointees (Mistretta). But more direct Congressional 
control over the officer, through actual appointment (Buckley), removal 
(Bowsher), or consent to the removal by the President (Myers), it is clear, 
does not comport with the Constitution. n72

   This pattern of appointment and removal cases continued in the Rehnquist 
Court. The crucial first holding in Morrison is that the independent counsel is 
an "inferior" officer for purposes of the Appointments Clause, meaning that his 
appointment does not require the advice and consent of the Senate. n73 Several 
other Rehnquist Court cases, including Freytag [*62] v. Commissioner of 
Internal Revenue, n74 Weiss v. United States, n75 and Edmond v. United States, 
n76 raised questions about the line between a principal and inferior officer. 
Mistretta involved a creative appointment arrangement of another sort. The 
statute called for the appointment of three federal judges as Commissioners of 
the Sentencing Commission. n77 Likewise too with Metropolitan Washington 
Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc., where 
Congress created a Board of Review that included Congressmen and had veto power 
over the operations of Reagan National and Dulles Airports. n78

   Leave aside for now why the rules about appointment and removal are what 
they are. What is most significant is that the Court has been willing (at least 
in the twentieth century) to evaluate appointment and removal arrangements, 
identifying constitutionally proper and improper ones. Compare this steady 
judicial activity with Garcia and Wickard/Darby's announcements that the Court 
will not be in the business of identifying and enforcing limitations in those 
areas. What explains the steady judicial activity?

   The character of the Appointments Clause as a legal rule must help explain 
the Court's involvement. n79 In contrast to many sources of law in federalism 
doctrine (and some in separation of powers doctrine), the Appointments Clause 
sets forth a rule that invites judicial enforcement. [*63] The clause sets 
forth multiple classifications: principal officers who must be appointed with 
the advice and consent of the Senate; inferior officers who may be appointed by 
the President alone, by a court of law, or by a head of department (depending 
on the dictates of Congress); and perhaps there is an implicit distinction 
between officers (either principal or inferior) and employees. In terms of 
clarity, the clause is not akin to the requirement that the President be 
thirty-five years old and a resident of the United States for fourteen years. 
n80 Nor is it as clear as its cousin, the Incompatibility Clause. n81 Even so, 
the Appointments Clause is a different kind of legal rule than the Tenth 
Amendment or Section 5 of the Fourteenth Amendment. It seems designed for 
courts to answer questions about it. The provision is ambiguous enough to 
generate cases - the difference between a superior officer and an inferior 
officer, the difference between an officer and an employee, what counts as a 
head of department or court of law - but not so open-ended as to permit any 
interpretation at all.

   As any survey of the Court's nonjusticiability cases makes clear, it takes 
more than the existence of a constitutional rule of some specificity to explain 
justiciability. n82 There are provisions of the Constitution that supply rules 
arguably similar in character to the Appointments Clause but are nonetheless 
nonjusticiable. n83 For instance, a plurality of the Supreme Court held 
nonjusticiable a challenge to President Carter's notice that he would rescind a 
treaty that had been approved by two-thirds of the Senate. n84 Some of the 
arguments over the President's action were strikingly similar to the dispute 
over the Tenure in Office Act. n85 The challengers claimed that the Senate's 
advice and consent to the treaty implied the power to advise and [*64] consent 
when the President rescinded the treaty. n86 But the Court determined that the 
dispute was a political question and therefore nonjusticiable. I know of no 
general theory of nonjusticiability and developing one is far beyond the scope 
of this paper. What can be said is that the warning signs of nonjusticiability 
- evaluation of the President's actions in the foreign affairs area or 
scrutinizing Congress's internal processes - are absent in disputes over the 
appointment and removal of officials. The more complete explanation for the 
continued adjudication of appointment and removal cases, then, is the existence 
of a certain kind of legal rule (like the Appointments Clause) and the absence 
the usual warning signs of a credible nonjusticiability argument.

   One needs more than a rule that judges will enforce, however, to generate 
cases. One needs appointments arrangements that push at the boundaries of the 
rule. Congress has more than satisfied this requirement historically and 
continues to do so. To be sure, the legality of Congress's arrangements does 
not always turn solely on the Appointments Clause. Congress has also rested 
such arrangements on the necessary and proper power. And resistance to such 
arrangements has been rooted in claims about infringement of executive power or 
more general concerns about separation of powers. That said, many challenged 
arrangements over the years, and in the Rehnquist Court as well, have required 
evaluation of the Appointments Clause.

   The Tenure in Office Act - which, in effect, required the Senate's consent 
before an officer could be removed from office - is the granddaddy of these 
"creative" arrangements. It was approved, in part, on a theory rooted in the 
Appointments Clause. That argument was that the method of removal followed the 
method of appointment and thus if the Senate provided advice and consent for 
appointment it was also permitted to condition removal on its advice and 
consent. Many other arrangements straightforwardly test the internal workings 
of the Appointments Clause or its applicability. The Independent Counsel Act is 
only constitutional if the counsel is an inferior officer for purposes of the 
Appointments Clause. In Freytag, a special trial judge appointed by the Chief 
Judge of the tax court must be an inferior officer and the Chief Judge must be 
either a Court of Law or a head of department for the arrangement to comport 
with the Appointments Clause. n87 In Buckley, Congress had attempted to appoint 
government [*65] officials in ways that were inconsistent with the Appointments 
Clause on many grounds; n88 the Court determined that, given the functions the 
Federal Election Commissioners exercised, they were officers of the United 
States and therefore had to be appointed consistently with the clause. n89

   Why does Congress establish these arrangements? Because rules that structure 
the appointment and removal of an officer help shape the incentives of that 
officer. There is probably not a one-to-one relationship here; government 
officials have many other pressures and demands on them that might on any given 
occasion swamp the incentive created through appointment and removal rules. But 
creative appointment and removal arrangements must have some effect otherwise 
Congress would not keep adopting them. Congress's interest is to arrange it so 
that the official will care about Congress's views (for example, the Tenure in 
Office Act, Bowsher, or Buckley) or has insulation from the President (for 
example, the independent counsel, independent agencies generally, or the U.S. 
Sentencing Commission). Congress, in other words, adopts these arrangements for 
reasons that do implicate separation of powers concerns. These are efforts to 
assert Congressional influence over the officer or to insulate the officer from 
an institutional competitor, the President.

   In its narrowest form, the argument here is that the Court has been ready to 
evaluate arrangements that explicitly test the reach of the Appointments Clause 
and that such cases matter because they implicate separation of powers 
concerns. I have also offered an explanation for why that is so, one rooted in 
the character of the legal rule embodied in the Appointments Clause. But, even 
if my explanation for the pattern of cases is not persuasive, it is the 
existence of the pattern that is important.

    [*66] As with the earlier argument about the protection of judicial 
prerogatives, if the Court did nothing but evaluate claims under the 
Appointments Clause, that would constitute a separation of powers doctrine. Put 
the two together - protection of the judicial power and the integrity of the 
judiciary, and evaluation of appointment or removal arrangements that involve 
the Appointments Clause - and there is a large body of separation of powers 

   But the argument has a broader form as well. Given the Appointments Clause 
cases that the Court will evaluate, the Court will also be inclined to evaluate 
a broader set of appointment and removal arrangements, including those that do 
not directly involve the clause. Assume that courts will generally consider 
claims brought to them that directly involve the Appointments Clause. First, 
such claims will often be bound up with other claims. The defense of the Senate 
consent to removal in Myers was rooted in part in the Appointments Clause and 
in part in the necessary and proper power. The claims against the Act were that 
removal is an executive power and that Senate consent to removal interferes 
with the exercise of executive power. If the Court rejects one claim (advice 
and consent to removal is not implied by advice and consent to appointment) it 
may at the same time be embracing another (advice and consent to removal 
interferes with the exercise of executive power).

   More than that, the holding in one Appointments Clause case takes on a life 
of its own, doing work in other cases where the Appointments Clause is not 
involved. Myers and Humphrey's Executor illustrate the point. In Myers the 
Appointments Clause was at issue, but the Court rejected the argument in favor 
of the executive power argument. Within a decade, the Court in Humphrey's 
Executor evaluated Congress's limitation on the President's power to remove 
at-will an officer of the Federal Trade Commission. Humphrey's did not involve 
the Appointments Clause. Congress's limitation was defended as an exercise of 
necessary and proper power. The statute was attacked on the ground that it 
interfered with the executive power, an argument that was based heavily on 
Myers 's holding that the removal restriction at issue there interfered with 
executive power. In that context, it seems almost inconceivable that the Court 
would hold the dispute nonjusticiable. One can make a similar point about 
Morrison. Evaluation of the independent counsel required the Court to interpret 
the Appointments Clause, but there were other questions in the case - the 
validity of an interbranch appointment, the President's removal ability - that 
did not involve the Clause but that would have been awkward for the Court to 

   If the existence of a specific rule such as the Appointments Clause (as well 
as the absence of the usual signals for nonjusticiability) helps explain the 
regular appearance of cases that adjudicate appointment and removal 
arrangements, then the provisions of the constitution that touch on federalism 
(for the most part) provide a contrast. The Tenth Amendment and Section 5 [*67] 
of the Fourteenth Amendment provide the sharpest contrast. The meaning of those 
provisions is created only after judges take it upon themselves to interpret 
them by whatever method. The Commerce Clause is closer to a rule, but it is 
still a far cry from the Appointments Clause. Indeed, of the provisions 
associated with federalism, the Commerce Clause seems closest on the 
generality/specificity dimension to the allocation of legislative power to the 
Congress. The fact that the nondelegation principle is essentially 
nonjusticiable and that the interpretation of the commerce power meant, for at 
least some decades, that Congress could reach nearly any activity, is 
supportive of, not resistant to, the claims made here. Both the nondelegation 
doctrine and the commerce power rest on constitutional provisions that are 
open-ended enough (when compared to other legal rules of interest here) to vest 
a great deal of discretion in the interpreter, which leaves space for varying 
interpretations, including effective nonjusticiability. In contrast to the 
Vesting Clauses or the commerce power, a rule like the Appointments Clause is 
much less likely to generate a Garcia or a Wickard/Darby - a rule of explicit 
or implicit nonjusticiability.

   2. The Existence of Comparatively Many Rules. - This point about the 
rule-like nature of the Appointments Clause can be made more globally. When 
compared to the provisions of the constitution that touch on federalism 
doctrine, the separation of powers provisions of the constitution are comprised 
of a large number of rules. Separation of powers commentators tend to focus on 
the Vesting Clauses, which are, at their outer edges anyway, allocations of 
authority that can be difficult to distinguish from one another and hence 
difficult for judges to enforce in a straightforward way. n90 Even so, the 
Vesting Clauses tell us more about what the rules are than the Tenth Amendment 
or Section 5 of the Fourteenth Amendment.

   But looking beyond the Vesting Clauses, the first three articles of the 
constitution are literally riddled with "appointments clause-like" rules about 
how the institutions of the national government will be designed and staffed. 
Because governmental actors do not often take actions that violate the literal 
terms of the Constitution, these provisions do not generate a lot of cases. But 
their mere existence means, I think, that the Court is unlikely to announce 
that the allocation of authority between the institutions of the national 
government will be left to politics.

   Of the rule-like provisions of the Constitution, the ones that have 
generated some cases are the rules about bicameralism and presentment. Both the 
legislative veto and the line-item veto were invalidated in opinions animated 
by the conviction that the political branches had attempted to make an end run 
around the constitutionally-mandated procedures by which legislation is to be 
made. To the Court, the legislative veto permitted the enactment of legislation 
by a subset of Congress without bicameralism and [*68] presentment. n91 To the 
majority in the line-item veto case, there was a similar problem. n92 If 
Congress could not constitutionally give the President an actual line-item 
veto-defined as the ability to single out certain provisions of a legislative 
package and refuse to affix his signature to those individual provisions, while 
making the rest law-then Congress could not in effect do that same thing by 
providing for a time lapse and calling the veto cancellation. Neither judicial 
opinion is entirely satisfactory. It is contestable to say that the rejection 
of Chadha's deportation was itself a legislative act; and it is contestable to 
say that the President's cancellation authority was the equivalent of a repeal. 
But that misses an important feature of the two decisions: The existence, and 
arguable applicability, of the specific requirements that could be mechanically 
enforced was important to the disposition of those cases.

   To emphasize once again, the point here is quite narrow: Given the presence 
of a fair number of constitutional rules about how institutions of the national 
government are to work, rules that are specific enough that their application 
can be relatively straightforward, it is unlikely that we would see a Court 
opinion that explicitly or in effect treated questions about the allocation of 
authority among the branches of government as questions to be decided by 

   * * * The two explanations offered so far are in the service of the rather 
modest claim that, in some areas of separation of powers law, the Supreme Court 
will consistently adjudicate controversies - protecting the exercise of 
judicial power and evaluating alleged violations of certain types of 
constitutional rules. In these areas, the Court is unlikely to ever retreat in 
the way that it has with respect to important aspects of federalism doctrine. 
Though modest, this claim may be important in explaining the disjunction 
between the Rehnquist Court's movement in federalism doctrine and the lack of 
movement in parts of separation of powers doctrine.

   But the explanations offered so far do not explain the content of that 
doctrine. Yes, the Court will be involved in adjudicating Appointments Clause 
cases, but why has it settled on particular rules? The next set of arguments 
focus on that question.

   To do so, one must first draw conclusions about the substantive content of 
separation of powers doctrine. I will focus my attention on the Court's 
acceptance as a constitutional matter of the administrative state. This 
substantive conclusion is reflected in many different doctrinal areas. In 
important respects, the Court has resisted claims that the Constitution 
establishes a unitary executive. While Congress is not permitted direct 
involvement in the appointment or removal of executive officials, it is 
apparently permitted to limit the President's appointment powers in general 
ways and is definitely [*69] permitted to insulate certain officers from 
removal at will by the President. Of more significance is that Congress can 
delegate significant policymaking authority to expert bodies, mostly in the 
executive but also in the judiciary, and the Court will not police those 
delegations to determine whether they are so loosey-goosey as to constitute a 
give-away of legislative authority. Despite many arguments in favor of 
revitalization of the nondelegation doctrine, and many opportunities, the Court 
will not - emphatically will not - revitalize that doctrine. This Part asks why 
the substantive content of these parts of separation of powers law have not 
changed in a period where the Court is willing to revisit some old commitments.

   C. External Influences on Federalism and Separation of Powers Doctrine

  Many have written on the external changes - economic, political, demographic, 
sociological, intellectual - that have made the late twentieth century a period 
where devolution to the states as a matter of policy and of law is possible. 
Keith Whittington has provided one of the most comprehensive accounts. n93 He 
first traces the forces that pushed toward a centralized, federal state in the 
earlier part of the twentieth century - the rise of an expertise model of 
governing, of the positive state committed to economic regulation and 
redistribution, and of commitment to regulating public morality. n94 These 
centralizing forces reached their height in the 1960s, but were then overtaken 
by factors that both raised doubt about the efficacy and wisdom of centralized 
action and rehabilitated the states. In tracing that changing environment on 
federalism questions, Whittington first argues that many factors combined to 
make liberalism recede as the dominant vision, and with liberalism went the 
governing ideology that "underwrote the modern state." n95 So too did economic 
forces - the rise of globalism, the structure of post-industrial economic 
entities - combine to diminish the efficacy of any government's control over 
the economy. n96 As the federal government's stature as a moral force 
diminished and the states "gradually recovered [*70] public confidence," n97 
the federal government no longer acted as keeper of the public morality. 
Whittington does not argue that the factors he identifies made a devolutionary 
trend in policy or law inevitable. But they do make it possible in a way that 
he argues would not have been possible, say, in the 1940s, 1950s, or even the 

   Most would agree that separation of powers doctrines can be influenced by 
trends such as the ones Whittington recounts as facilitating centralization and 
then making decentralization possible. It is now a fairly conventional claim 
that views, including judicial views, of Presidential power tend to expand 
during wartime. n98 Events of the type Whittington and others identify must 
have played a role in creating the view that administrative agencies operating 
under broad delegations from the Congress were constitutionally acceptable. n99 
Many of the forces Whittington identifies as pushing in the direction of a 
centralized state suggested that the state should wield power through a 
particular form, that is, the expert bureaucracy. n100 If such forces could 
play a role in constitutionally blessing the administrative agency - a position 
operationalized in law through a toothless nondelegation doctrine - could not 
external events create conditions that would make that governmental structure 
less appealing and hence less constitutionally acceptable?

   Yes, of course they could, at least theoretically. But to understand why 
that has not occurred, it is important first to clarify what such a factor 
would have to suggest in order to influence the constitutional rules. Trends 
capable of influencing views on delegation would have to do more than cast 
[*71] doubt on regulation in general. That is because the alternative to 
administrative agency regulation under vague mandates is surely not no 
regulation. If a court invalidated a regulatory scheme on nondelegation 
doctrine grounds, the likely result would be that Congress would re-adopt the 
legislation and provide for private enforcement or it would cure the lack of 
intelligible principle, re-enact the legislation, and re-delegate to the same 
administrative agency. So factors that might have the capacity to influence 
non-delegation rules would have to cast doubt, not on regualtion generally, but 
on actions taken by administrative agencies.

   The constitutional doctrine facilitating delegations to such entities has 
stubbornly refused to move. Does this mean that the courts are enchanted by 
administrative agencies? n101 To the contrary. If the New Deal period started 
with enormous enthusiasm about the capacity for expert administration, that 
attitude was quickly replaced by skepticism about the possibility of the 
talented and public-spirited regulator. The agency official rather quickly came 
to be viewed as incompetent or, worse, in the business of delivering rents to 
the parties he was supposed to regulate. Judicial doctrines, mostly in the 
field of administrative law, evolved rather dramatically to take account of 
this new vision. n102

   Why didn't such skepticism lead to a revision in the nondelegation doctrine? 
Let me offer three admittedly speculative suggestions. First, the rise in 
disenchantment with administration came at the wrong time given the overall 
jurisprudential commitments of the Supreme Court. The concern [*72] that 
agencies might be captured manifested itself in judicial doctrine by the mid to 
late 1960s. But that was a period where the post New Deal settlement - about 
the scope of federal power, about deference to social and economic legislation 
- was not open for re-negotiation. A revitalized nondelegation doctrine, 
remember, would mean sweeping invalidation of significant parts of the 
apparatus of the federal government. For example, the EPA, the FCC, the FDA, 
the FTC, the OSHA, and the SEC all administer some vague mandates; it is 
conceivable that adherence to nondelegation doctrine would necessitate 
invalidation of portions of each of those agencies' missions. But at the point 
when skepticism of agency behavior seeped into the courts, such sweeping 
judicial invalidation of parts of the federal government was not in the realm 
of the possible. More than this, as just noted, it was not (and still is not) 
clear what would be achieved by revitalizing the nondelegation doctrine and 
invalidating major parts of the administrative state. Judicial invalidation of 
parts of these agencies' missions may not have seemed much better. That 
alternative was not, as discussed earlier, the end of regulation of those 
fields. In the face of an invalidation, Congress would probably re-enact 
statutes and have them privately enforced or re-delegate to the administrative 
agency with more specific instructions.

   Finally, the nondelegation doctrine was not the only space in which courts 
could express their concerns about agency power. There were many outlets for 
judicial skepticism because courts had sub-constitutional tools available to 
tame that incompetent or captured agency. These were tools that courts used 
with vigor. Through the everyday mechanisms of administrative law, courts 
transformed what agencies were required to do in order to survive judicial 
review of their actions. n103 Agency actions had to be transparent, 
participatory, and reasonably justified for the court. n104 Once tamed, the 
administrative agency does not seem a candidate for reform even when it does 
become possible to reconsider old commitments.

   D. The Normative/Political Valence of Federalism and Separation of Powers

  Aside from those who describe the changing conditions that make movement 
toward devolution possible, many commentators stake out more normative 
positions on the Court's federalism decisions. They argue that the Court's 
federalism revival is explained by some factor and then they either [*73] decry 
or celebrate that development. Several commentators, for instance, have 
characterized the Rehnquist Court federalism revival as politically 
conservative. n105 Political conservatives are fans of federalism, so goes the 
argument, because state governments are less likely to enact certain types of 
regulation and wealth redistribution regimes. Given interjurisdictional 
competition, for example, redistribution of wealth is systematically less 
likely to occur at the state level. Others explain that the court has rightly 
become more persuaded of the traditional virtues of a federalist 
system-experimentation and inter-state competition yielding superior approaches 
(races to the top), diversity (carrying the possibility of satisfying more 
preferences), or the intrinsic value of decentralized government 
decisionmaking. n106

   These arguments paint too broadly. It is hard to take much away from the 
checkerboard of the Court's federalism "revolution." Piece together the Court's 
decisions on the Commerce Clause, Section 5 of the Fourteenth Amendment, the 
anti-commandeering rule rooted in the Tenth Amendment, and state immunity from 
damage actions rooted in the Eleventh Amendment. These movements in the 
direction of the states are a strange mishmash that hardly add up to a 
full-scale shift of government authority to the states. n107 Compared to the 
results one might hope to achieve, or fear would result, from a comprehensive 
devolution of federal authority to state governments, the Court's decisions 
seem a thin reed indeed. Nonetheless, I shall take as a given that - at the 
margins, as the economists like to say - federalism decisions can be 
understood, as well as defended or critiqued, along such dimensions as 
consistency with a politically conservative preference [*74] for state instead 
of federal action, or for the traditional values of federalism - 
experimentation, diversity, and localized decisionmaking.

   What is striking about all these perspectives on federalism is that, despite 
their differences, they are committed to the notion that limitations on federal 
power, and comparative enhancement of state power, have predictable 
consequences. They then bemoan or celebrate those consequences. But the shared 
assumption is that it really matters whether states decide something or the 
federal government decides something. The specific views underlying the 
assumption are that states will be more politically conservative; they will 
experiment by pursuing diverse responses to social problems, which can tell us 
something about the best response or at least permit people to match with the 
state regime that most suits their preferences; or states satisfy a deep need 
for decisionmaking that is close to the people.

   The shared assumption seems quite plausible. Shifting authority away from 
federal actors and to state actors is to send authority to a systematically 
different set of decisionmakers. State political systems are genuinely 
different political systems than the national political system. Consider first 
the formal differences one notices in a survey of state governmental 
structures. Many governors have line-item veto authority; n108 many state 
judiciaries are elected; n109 many states have traditions of referenda. n110 
And the less formal differences are no less real. There are systematic 
ideological and cultural differences that map on to states and regions of the 
country. Levels of state regulation and state redistribution vary even in the 
current regime, where there is strong pressure toward national uniformity.

   Those who write about separation of powers believe that it really matters 
whether, for instance, Congress or the executive branch decides some question. 
And on many important levels, it does. The executive and the legislature are 
structured and staffed differently. Not only are these institutions structured 
differently, they have different jobs to do, different ways of doing those 
jobs, and different internal norms. And from a democratic theory perspective, 
the choice between Congress and an administrative agency is the choice between 
decisionmakers with electoral connections and those without direct electoral 

   But those who think about separation of powers can exaggerate these 
differences and the comparison to federalism well makes the point. To take up 
the primary delegation question, if one compares the choice between [*75] 
Congress and the executive on the one hand to the choice between the federal 
government and state governments on the other, the consequences of the 
intra-federal choice seem puny because the differences by comparison look 
lilliputian. Compare two hypothetical cases: In one, the Supreme Court holds 
that the Occupational Safety and Health Act is an unconstitutional delegation 
of legislative power because it lacks an intelligible principle by which the 
agency can implement the Act. Congress will have to re-write the Act with more 
specific standards if the regime is to stand. In the other case, the Court 
holds that there is no enumerated power that permits the federal government to 
have a federal regime of occupational safety and health. No Congressional 
re-drafting will solve the problem; occupational safety and health regimes, if 
they are to exist at all, will exist at the state level only. Is there any 
doubt that the latter would be revolutionary while the former would not? The 
federal political system is first and foremost a federal system. When compared 
to the federal/state choice, the incentives of decisionmakers in the federal 
system-and especially the two democratic institutions-are more similar than 
different; the constituencies that care about what government does are active 
in, have access to, and influence in the whole range of federal institutions.

   This matters because it means it is difficult to predict the outcome of a 
shift of authority from one institution to the other. n111 If the President had 
a line-item veto, would the world look a lot different? If Congress specified 
regulatory trade-offs instead of administrative agencies specifying regulatory 
trade-offs, would the world look a lot different? The answers to these 
questions are far from clear. Those choices would channel decisionmaking to 
different decisionmakers (to the President from Congress; to the Congress from 
the agency) with different ways of doing business. But no matter where the 
decision is lodged, the decisionmaker without the authority will continue to 
exist, will express its views, and will remain a repeat player in a federal 
system where there are thousands of occasions for inter-branch negotiation and 
compromise. More than that, the constituencies that care about the choice that 
is being made will energetically press their views to the decisionmaker, no 
matter where he sits. It is for these reasons that the allocation of authority 
between Congress and the executive, for instance, does not have the sort of 
systematic valence as does the choice between the federal government and state 
governments. And, without such predictable consequences to either celebrate or 
worry about, it will be much harder for external forces to influence in major 
ways doctrines like the nondelegation doctrine.


   IV. Lessons of the Comparison

  This comparison between federalism and separation of powers has some broader 
lessons. One lesson is that we should be cautious of some of the global 
explanations that have been offered for the Rehnquist Court's decisions. A turn 
toward historically informed constitutional interpretation cannot explain what 
has happened in separation of powers law. Nor can an explanation that 
emphasizes the Court's confidence about its exercise of judicial review explain 
the Court's resistance to revising some parts of separation of powers doctrine.

   The most important lesson, though, is that federalism and separation of 
powers are not siblings. They might not even be cousins. True, they are both 
about channeling decisionmaking authority to particular institutions and they 
are not about placing substantive limits on government decisionmaking 
generally. But they are fundamentally different as a matter of positive law and 
political economy. For those reasons, the internal and external factors that 
generate the doctrine should be expected to produce different patterns. In 
other words, the main lesson here is that the federalism and separation of 
powers are apples and oranges. They will not ripen and fall off the tree 
together and we should not expect them to.


   n1. United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 
529 U.S. 598 (2000).
   n2. New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 
521 U.S. 898 (1997). But see Reno v. Condon, 528 U.S. 141 (2000) (rejecting 
Tenth Amendment challenge to the Driver's Privacy Protection Act of 1994).
   n3. Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Fla. Prepaid 
Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999); Kimel 
v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Bd. of Trs. of the Univ. of Ala. v. 
Garrett, 531 U.S. 356 (2001).
   n4. City of Boerne v. Flores, 521 U.S. 507 (1997); Morrison, 529 U.S. at 
   n5. From the beginning of the Rehnquist Court to today, other than Article 
III standing cases, my count includes the following: Morrison v. Olson, 487 
U.S. 654 (1988), Mistretta v. United States, 488 U.S. 361 (1989), Skinner v. 
Mid-America Pipeline Co., 490 U.S. 212 (1989), Touby v. United States, 500 U.S. 
160 (1991), Metropolitan Washington Airports Authority v. Citizens for the 
Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991), Freytag v. 
Commissioner, 501 U.S. 868 (1991), Weiss v. United States, 510 U.S. 163 (1994), 
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995), Loving v. United States, 
517 U.S. 748 (1996), Edmond v. United States, 520 U.S. 651 (1997), Clinton v. 
Jones, 520 U.S. 681 (1997), Clinton v. City of New York, 524 U.S. 417 (1998), 
Miller v. French, 530 U.S. 327 (2000), and Whitman v. American Trucking Ass'ns, 
531 U.S. 457 (2001).
   n6. The most important include: Lujan v. National Wildlife Federation, 497 
U.S. 871 (1990), Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), Raines v. 
Byrd, 521 U.S. 811 (1997), Steel Co. v. Citizens for a Better Environment, 523 
U.S. 83 (1998); FEC v. Akins, 524 U.S. 11 (1998); Friends of the Earth, Inc. v. 
Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), and Vermont 
Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 
   n7. Olson, 487 U.S. 654.
   n8. Mistretta, 488 U.S. 361.
   n9. City of New York, 524 U.S. 417.
   n10. Jones, 520 U.S. 681.
   n11. Plaut, 514 U.S. 211; see also Miller, 530 U.S. 327.
   n12. United States v. Munoz-Flores, 495 U.S. 385 (1990).
   n13. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001); Loving v. United 
States, 517 U.S. 748 (1996); Touby v. United States, 500 U.S. 160 (1991); 
Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212 (1989).
   n14. Mistretta v. United States, 488 U.S. 361 (1989).
   n15. Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft 
Noise, Inc., 501 U.S. 252 (1991); Freytag v. Commissioner, 501 U.S. 868 (1991); 
Weiss v. United States, 510 U.S. 163 (1994); Edmond v. United States, 520 U.S. 
651 (1997). Morrison v. Olson, 487 U.S. 654 (1988), also involved the 
Appointments Clause, and Morrison and Mistretta, 488 U.S. 361, both involved 
inter-branch appointments.
   n16. Clinton v. City of New York, 524 U.S. 417, 465 (1998) ("It is [the 
nondelegation] doctrine, and not the Presentment Clause, that was discussed in 
the Field opinion, and it is this doctrine, and not the Presentment Clause, 
that is the issue presented by the statute before us here.") (Scalia, J., 
   n17. The majority in the line-item veto case may have gestured toward this 
argument when it noted, "our first President understood the text of the 
Presentment Clause as requiring that he either "approve all the parts of a 
Bill, or reject it in toto.'" Id. at 440. Whether the Court is invoking this 
argument, it is a conventional one against a legislative veto. See M. Elizabeth 
Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. Pa. L. 
Rev. 603, 627 & n.69 (2001).
   n18. Mistretta, 488 U.S. 361; Touby, 500 U.S. 160; Loving, 517 U.S. 748; 
Whitman, 531 U.S. 457.
   n19. Olson, 487 U.S. 654, which did revise the doctrine, is discussed in the 
text, infra text accompanying notes 26-44. The other cases evaluating 
appointments arrangements include: Mistretta, 488 U.S. 361, Metropolitan 
Washington Airports, 501 U.S. 252, Freytag, 501 U.S. 868, Weiss, 510 U.S. 163, 
and Edmond, 520 U.S. 651.
   n20. 488 U.S. at 374 ("In light of our approval of these broad delegations, 
we harbor no doubt that Congress' delegation of authority to the Sentencing 
Commission is sufficiently specific and detailed to meet constitutional 
requirements."); id. at 380 (outlining standard separation of powers test for 
evaluation of an institutional arrangement); id. at 390 ("In light of this 
precedent and practice, we can discern no separation-of-powers impediment to 
the placement of the Sentencing Commission within the Judicial Branch."); id. 
at 397 ("We find Congress' requirement of judicial service somewhat 
troublesome, but we do not believe that the Act impermissibly interferes with 
the functioning of the Judiciary."); id. at 404 ("In light of the foregoing 
history and precedent, we conclude that the principle of separation of powers 
does not absolutely prohibit Article III judges from serving on commissions 
such as that created by the Act. "); id. at 409 ("We have never considered it 
incompatible with the functioning of the Judicial Branch that the President has 
the power to elevate federal judges from one level to another or to tempt 
judges away from the bench with Executive Branch positions."); id. at 411 ("We 
see no risk that the President's limited removal power will compromise the 
impartiality of Article III judges serving on the Commission and, consequently, 
no risk that the Act's removal provision will prevent the Judicial Branch from 
performing its constitutionally assigned function of fairly adjudicating cases 
and controversies."); id. at 412 ("We conclude that in creating the Sentencing 
Commission - an unusual hybrid in structure and authority - Congress neither 
delegated excessive legislative power nor upset the constitutionally mandated 
balance of powers among the coordinate Branches. The Constitution's structural 
protections do not prohibit Congress from delegating to an expert body located 
within the Judicial Branch the intricate task of formulating sentencing 
guidelines consistent with such significant statutory direction as is present 
   n21. City of New York, 524 U.S. at 438-40 (holding that the line-item veto 
violates bicameralism and presentment requirements of Articles I and II).
   n22. 520 U.S. 681, 692 (1997) ("Petitioner's principal submission - that in 
"all but the most exceptional cases,' the Constitution affords the President 
temporary immunity from civil damages litigation arising out of events that 
occurred before he took office - cannot be sustained on the basis of 
precedent." (citation omitted)); id. at 705 ("In sum, "it is settled law that 
the separation-of-powers doctrine does not bar every exercise of jurisdiction 
over the President of the United States.' If the Judiciary may severely burden 
the Executive Branch by reviewing the legality of the President's official 
conduct, and if it may direct appropriate process to the President himself, it 
must follow that the federal courts have power to determine the legality of his 
unofficial conduct." (citation omitted)).
   n23. City of New York, 524 U.S. at 438 ("In both legal and practical effect, 
the President has amended two Acts of Congress by repealing a portion of 
each... . There is no provision in the Constitution that authorizes the 
President to enact, to amend, or to repeal statutes."); INS v. Chadha, 462 U.S. 
919, 956-57 (1983) ("Since it is clear that the action by the House under 
244(c)(2) was not within any of the express constitutional exceptions 
authorizing one House to act alone, and equally clear that it was an exercise 
of legislative power, that action was subject to the standards prescribed in 
Art. I.").
   n24. City of New York, 524 U.S. at 464-65 (line-item veto fully satisfies 
bicameralism and presentment requirements) (Scalia, J., dissenting); E. Donald 
Elliott, INS v. Chadha: The Administrative Constitution, the Constitution, and 
the Legislative Veto, 1983 Sup. Ct. Rev. 125, 134 ("The legislative veto 
"alters legal rights,' however, only because the Court chooses to characterize 
its effect that way.").
   n25. See supra note 22.
   n26. 272 U.S. 52 (1926).
   n27. 295 U.S. 602 (1935).
   n28. Myers, 272 U.S. at 176.
   n29. Tenure in Office Act, ch. 154, 14 Stat. 430 (1867).
   n30. See generally Michael Les Benedict, The Impeachment and Trial of Andrew 
Johnson (Harold M. Hyman ed., 1973).
   n31. 295 U.S. 602.
   n32. 487 U.S. at 688-89.
   n33. Id. at 689.
   n34. Id. at 689-90 (quoting U.S. Const. art. II, 3) (alterations in 
   n35. Judith A. Best, Budgetary Breakdown and the Vitiation of the Veto, in 
The Fettered Presidency: Legal Constraints on the Executive Branch 119, 121-23 
(L. Gordon Crovitz & Jeremy A. Rabkin eds., 1989) (observing that "the last 
minute omnibus appropriations bill is virtually veto proof" because the 
President, not Congress, will take the blame for a government shutdown); Steven 
G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. 
Rev. 23, 79 (1995) (arguing that the President's power to exercise his 
"national, anti-factional voice" in the appropriations process is reduced when 
unrelated riders are added to an omnibus appropriations bill because of the 
political consequences of a government shutdown resulting from a veto of the 
bill over the riders); Michael J. Gerhardt, The Bottom Line on the Line-Item 
Veto Act of 1996, 6 Cornell J.L. & Pub. Pol'y 233, 235 (1997) (discussing the 
diminishment of the President's veto power due to omnibus legislation as one of 
the reasons for support of line-item veto power in general and the Line-Item 
Veto Act of 1996); Glen Robinson, Public Choice Speculations on the Item Veto, 
74 Va. L. Rev. 403, 407-09 (1988) (explaining that bills that bundle public and 
private goods together, including omnibus bills, are rarely vetoed because the 
President is unwilling to incur the political costs resulting from failing to 
approve the public goods provisions or has judged that the benefits of the bill 
overall outweigh the costs of the offending private goods provisions); J. 
Gregory Sidak & Thomas A. Smith, Four Faces of the Item Veto: A Reply to Tribe 
and Kurland, 84 Nw. U. L. Rev. 437, 467-74 (1990) (asserting that omnibus bills 
and other bundled bills diminish the President's veto power). But see Neal E. 
Devins, In Search of the Lost Chord: Reflections on the 1996 Item Veto Act, 47 
Case W. Res. L. Rev. 1605, 1619-23 (1997) (arguing that omnibus bills do not 
weaken the President's veto power because, "an energetic President, through the 
threatened use of his veto power, may take advantage of high stakes omnibus 
legislation to enhance his bargaining position").
   n36. Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and 
Presidential Power 79-87 (2001) (concluding that executive orders have become 
more substantive in nature over time, that the number of significant executive 
orders issued each year has increased since the 1950s, and that "the percentage 
of executive orders that deal with foreign affairs, executive branch 
administration, and domestic policy has grown significantly since the 1930s"); 
Calabresi, supra note 35, at 30 (noting the "anti-Presidentialist" argument 
that the President has "too much power over lawmaking," in part because of a 
"much more aggressive presidential use of executive orders and signing 
statements"); Tara L. Branum, President or King? The Use and Abuse of Executive 
Orders in Modern-Day America, 28 J. Legis. 1 (2002) (observing that the scope 
of executive orders has expanded historically, especially in times of crisis).
   n37. I should note here that my focus is primarily in the domestic arena. I 
am not taking on and evaluating separation of powers questions that arise in 
the foreign affairs context. There is a large body of literature examining 
those contexts. See, e.g., John K. Setear, The President's Rational Choice of a 
Treaty 's Preratification Pathway: Article II, Congressional-Executive 
Agreement, or Executive Agreement?, 31 J. Legal Stud. S5-39 (2002).
   n38. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 487 (2001) (Thomas, J., 
   n39. Id.
   n40. Morrison v. Olson, 487 U.S. 654, 697-734 (1988) (Scalia, J., 
   n41. Mistretta v. United States, 488 U.S. 361, 413-27 (1989) (Scalia, J., 
   n42. The most obvious case here is Justice Scalia's solo dissent in 
Morrison. But there are others. See, e.g., Young v. United States ex rel. 
Vuitton et Fils, S.A., 481 U.S. 787, 815 (1987) (Scalia, J., concurring) 
(explaining that prosecution is an executive function and that is the reason 
that a federal court cannot appoint private citizen to investigate and 
prosecute criminal contempt); Printz v. United States, 521 U.S. 898, 922-23 
(1997) (stating that the Brady Act is constitutionally problematic, inter alia, 
because the President cannot control state officers who administer the law); 
id. at 959-60 (calling Justice Scalia's Article II argument "colorful 
hyperbole") (Stevens, J., dissenting); see also Vt. Agency of Natural Res. v. 
United States ex rel. Stevens, 529 U.S. 765, 778 & n.8 (2000) (holding that qui 
tam relators can have Art III standing, but reserving the question of whether 
qui tam relators violate the Appointments Clause or the take care clause of 
Article II).
   n43. Touby v. United States, 500 U.S. 160 (1991); Loving v. United States, 
517 U.S. 748 (1996); Am. Trucking, 531 U.S. 457.
   n44. Olson, 487 U.S. 654, is the most important case. There, the Court went 
beyond the existing precedent rather than revised it. In FEC v. NRA Political 
Victory Fund, 513 U.S. 88 (1994), the Court held that the FEC did not have the 
authority to litigate on its own behalf in the Supreme Court. It was a 
statutory, not constitutional, holding. Id. at 99. The challenges to the FEC 
presented in the lower court were based on unitary executive theories. See FEC 
v. NRA Political Victory Fund, 6 F.3d 821, 823-34 (D.C. Cir. 1993) (addressing 
challenges to the statute's requirement of bi-partisan appointment, to the 
FEC's independence of the President in its law enforcement activities, and to 
the appointment by Congress of ex officio members of the Commission).
   n45. See generally G. Edward White, The Arrival of History in Constitutional 
Scholarship, 88 Va. L. Rev. 485 (2002) (documenting the growth and influence of 
the role of history in legal scholarship generally and constitutional 
scholarship specifically).
   n46. See generally Mark V. Tushnet, A Note on the Revival of Textualism in 
Constitutional Theory, 58 S. Cal. L. Rev. 683 (1985).
   n47. Larry D. Kramer, Forward, We the Court, 115 Harv. L. Rev. 4, 14 (2001) 
( "The Rehnquist Court no longer views itself as first among equals, but has 
instead staked its claim to being the only institution empowered to speak with 
authority when it comes to the meaning of the Constitution.").
   n48. Herbert Wechsler was the most famous exponent of this argument in the 
modern era. See Herbert Wechsler, The Political Safeguards of Federalism, in 
Principles, Politics, and Fundamental Law: Selected Essays 49 (1961). Larry 
Kramer updated the argument. See Larry Kramer, Putting the Politics Back into 
the Political Safeguards of Federalism, 100 Colum. L. Rev. 215 (2000).
   n49. Jesse H. Choper, Judicial Review and the National Political Process: A 
Functional Reconsideration of the Role of the Supreme Court (1980).
   n50. 469 U.S. 528 (1985).
   n51. 317 U.S. 111 (1942).
   n52. 312 U.S. 100 (1941).
   n53. 514 U.S. 211 (1995).
   n54. Id. The statute at issue in Plaut was enacted in response to Lampf, 
Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991), in which 
the Supreme Court established a statute of limitations for certain securities 
fraud suits; the suits had to be filed within one year after the discovery of 
the facts constituting the basis for the claim and within three years after the 
violation. Id. at 364. As a result of Lampf, some suits that had been timely 
filed under the pre-Lampf regime had to be dismissed on the authority of Lampf. 
Congress reversed the Lampf holding for cases that had been filed prior to 
Lampf and were, under pre-Lampf rules, timely. Plaut, 514 U.S. at 213-15. Under 
the statute, such suits could be reinstated upon the filing of a motion. 15 
U.S.C. 78aa-1 (2000).
   n55. 481 U.S. 787 (1987).
   n56. Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787 
(1987). United States v. Providence Journal Co., 485 U.S. 693 (1988) is the 
follow-on case. Interestingly, in that case the Solicitor General argued that 
the private prosecutor did not need his approval to seek certiorari. Id. at 
   n57. 521 U.S. 507, 535-36 (1997).

   Our national experience teaches that the Constitution is preserved best when 
each part of the Government respects both the Constitution and the proper 
actions and determinations of other branches. When the Court has interpreted 
the Constitution, it has acted within the province of the Judicial Branch, 
which embraces the duty to say what the law is. Marbury v. Madison, 5 U.S. 137 
(1 Cranch) 136, 177 (1803). When the political branches of Government act 
against the background of a judicial interpretation of the Constitution already 
issued, it must be understood that in the later cases and controversies the 
Court will treat its precedents with the respect due them under settled 
principles, including stare decisis, and contrary expectations must be 


   See Max Kidalov & Richard H. Seamon, The Missing Pieces of the Debate over 
Federal Property Rights Legislation, 27 Hast. Const. L.Q. 1, 76 (1999) ("No one 
can read Boerne without sensing the Court's indignation at Congress' attempt in 
the RFRA to overrule Smith.").

   n58. FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994).
   n59. Providence Journal Co., 485 U.S. 693 at 698-99.
   n60. Legal Serv. Co. v. Velazquez, 531 U.S. 533, 545-46 (2001).
   n61. 497 U.S. 871 (1990).
   n62. Daryl J. Levinson, Empire-Building Government in Constitutional Law, 
118 Harv. L. Rev. (forthcoming 2004).
   n63. 514 U.S. 211 (1995).
   n64. 530 U.S. 327 (2000).
   n65. See Michael J. Klarman, What's So Great About Constitutionalism?, 93 
Nw. U. L. Rev. 145, 149-50 (1998) (noting that federal courts may have "an 
abstract bias in favor of expanding the power of the government with which they 
are affiliated" as well as "a concrete incentive to expand national government 
power and thereby augment their own jurisdiction vis-a-vis state courts" 
because an expansion of federal legislative power might result in the expansion 
of federal judicial power); G. Edward White, Recovering Coterminous Power 
Theory, 14 Nova L. Rev. 155, 168-69 (1989) (discussing the argument made by the 
anti-Federalist commentator "Brutus" that the federal judiciary will expand the 
power of the national government and its own jurisdiction by broadly 
interpreting the powers set forth in Articles I and III).
   n66. 514 U.S. 549, 561-68 (1995).
   n67. 424 U.S. 1 (1976).
   n68. 478 U.S. 714 (1986).
   n69. 501 U.S. 252 (1991).
   n70. Humphrey's Executor v. United States, 295 U.S. 602 (1935).
   n71. FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994) (dismissing a 
challenge to bi-partisanship requirements for want of jurisdiction).
   n72. Buckley, 424 U.S. at 143 (holding that appointment by House and Senate 
to FEC not constitutional nor is requirement that both houses approve all 
appointments); Bowsher, 478 U.S. at 736 (finding it unconstitutional for 
Congress to retain power to remove Comptroller General, who performs executive 
function under Gramm-Rudman-Hollings Act); Myers v. United States, 272 U.S. 52 
(1926) (holding that requiring the Senate to approve removal of postmaster 
first class is unconstitutional).
   n73. Morrison v. Olson, 487 U.S. 654, 670-73 (1988).
   n74. 501 U.S. 868 (1991) (holding that a special trial judge appointed by 
the chief judge of the Tax Court is an "inferior officer" and that the Tax 
Court is a "Court of Law" for purposes of the Appointments Clause).
   n75. 510 U.S. 163 (1994).
   n76. 520 U.S. 651 (1997) (stating that judge of Coast Guard Court of 
Criminal Appeals is an inferior officer for Appointments Clause purposes).
   n77. Mistretta v. United States, 488 U.S. 361, 397-408 (1989).
   n78. 501 U.S. 252 (1991).
   n79. A generalized version of this claim would be that the character of 
constitutional doctrine is explained by the character of the constitutional 
text that is being interpreted. More particularly, the argument would be that 
the more specific the constitutional rule, the less likely there is to be 
judicial creativity and, with that, evolving constitutional doctrines. While 
most would take the example in the text - President be thirty-five years of age 
- as a noncontroversial example that generally supports the broader claim, the 
broad claim cannot be correct. There are some obvious counter-examples that 
disprove it. The Eleventh Amendment, which sets forth a classic rule but has 
been interpreted as if it sets forth a standard about protection of state 
sovereignty, is one counter example. Many constitutional theorists have written 
on this question. For a characteristically thoughtful discussion of the claim 
about the relationship between constitutional text and constitutional 
interpretation by judges, see Frederick Schauer, Constitutional Invocations, 65 
Fordham L. Rev. 1295 (1997).

   The claim I am making is much narrower. My claim is that the existence of a 
rule like the Appointments Clause helps explain the effective justiciability of 
the appointments questions. It is not that the appointments rule is likely to 
be enforced in some particular way - say, consistently with its "literal" 
terms. If its literal terms are violated, I suspect it would be literally 
enforced. ( Buckley v. Valeo, 424 U.S. 1 (1976), is a good example.) But the 
bottom line claim here is not about the result that will be reached in 
appointments cases; it is that the likely judicial response to the Appointments 
Clause will be to enforce it in some way.

   n80. U.S. Const. art. II, 1, cl. 5.
   n81. Id. art. I, 6, cl. 2.
   n82. The literature on this topic is so large that even the standard survey 
footnote cannot do it justice. For a recent discussion and evaluation of the 
political question doctrine, see Rachel E. Barkow, More Supreme than Court: The 
Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 
Colum. L. Rev. 237 (2002).
   n83. For example, the Court held nonjusticiable Judge Walter Nixon's 
challenge to the procedures used by the Senate in his impeachment trial. The 
Senate relied on a committee, which Judge Nixon argued violated the requirement 
of Article I, section 3 that the "Senate shall have the sole Power to try all 
Impeachments." See Nixon v. United States, 506 U.S. 224 (1993). There are also 
the several lower court cases that have held nonjusticiable challenges to 
military actions taken without a congressional declaration of war. See, e.g., 
Holtzman v. Schlesinger, 484 F.2d 1307 (3d Cir.), cert. denied, 416 U.S. 936 
   n84. Goldwater v. Carter, 444 U.S. 996 (1979). The Court did not have merits 
briefing and argument. Instead, it granted certiorari, vacated the judgment 
below, and remanded with instructions to dismiss the complaint. Then-Justice 
Rehnquist wrote for a plurality to explain that the question was a political 
one and therefore nonjusticiable. Id. at 1002.
   n85. And some of them were not. The fact that the treaty contained an 
explicit provision for termination by either party on one year's notice was 
crucial to the lower court's disposition in the case on the merits. See 
Goldwater v. Carter, 617 F.2d 697, 699 (D.C. Cir.), judgment vacated, 444 U.S. 
996 (1979).
   n86. The argument is outlined in the D.C. Circuit's opinion. See Goldwater, 
617 F.2d at 703 ("[The argument] is that, since the President clearly cannot 
enter into a treaty without the consent of the Senate, the inference is 
inescapable that he must in all circumstances seek the same senatorial consent 
to terminate that treaty."). Interestingly, the court goes on to note that this 
argument would mean that the Senate must approve the removal of an officer that 
was appointed with advice and consent of the Senate, a position, the court 
points out, that was rejected in Humphrey's Executor. Id.
   n87. Freytag v. Commissioner, 501 U.S. 868 (1991); see also Weiss v. United 
States, 510 U.S. 163 (1994) (classifying military officers serving as military 
judges as inferior officers who are properly appointed based on their 
commission from the President); Edmond v. United States, 520 U.S. 651 (1997) 
(determining that judge of Coast Guard Court of Criminal Appeals is an inferior 
officer and thus appointment by Secretary of Transportation is permissible).
   n88. 424 U.S. at 113; see also id. at 118-41. There were six voting members. 
Two were appointed by the President pro tempore of the Senate; two were 
appointed by the Speaker of the House; and two were appointed by the President. 
All six of the voting members had to be confirmed by both houses of Congress.
   n89. Id. Some cases about the structure of an office do not involve the 
Appointments Clause. The Court could evaluate the structure and appointment of 
the Sentencing Commission without much consideration of the Appointments 
Clause. And, while the clause speaks to the appointment of an officer, it does 
not explicitly speak to the officer's removal. Although tenure-in-office 
restrictions on removal were, as noted in the text, rooted in a negative 
implication of the Appointments Clause, other cases were not defended on that 
theory. Where Congress kept removal power, as in Bowsher v. Synar, the Court's 
evaluation did have to involve the Appointments Clause. 478 U.S. 714, 765-766 
(1986) (White, J., dissenting). And the several cases involving what I have 
termed "indirect" restrictions on removal - illustrated by Humphrey's Executor 
v. United States, 295 U.S. 602, 629 (1935) and Morrison v. Olson, 487 U.S. 654, 
692-93 (1988) - were justified under the necessary and proper power. One could 
conceivably understand them as a "lesser included power" to a tenure-in-office 
power which was itself rooted in part on the Senate's role in advice and 
consent. But they have not generally been defended on that ground.
   n90. Magill, supra note 17, at 608-26.
   n91. INS v. Chadha, 462 U.S. 919 (1983).
   n92. Clinton v. City of New York, 524 U.S. 417 (1998).
   n93. Keith E. Whittington, Dismantling the Modern State? The Changing 
Structural Foundations of Federalism, 25 Hastings Const. L.Q. 483 (1998) 
[hereinafter Whittington, Dismantling]; Keith E. Whittington, Taking What They 
Give Us: Explaining the Court's Federalism Offensive, 51 Duke L.J. 477, 496-506 
(2001) (explaining the shift in the Rehnquist's Court's attitude toward 
federalism as a response to changing "economic and social conditions," 
increasing Presidential and intellectual support for federalism, and decreasing 
public trust in the federal government) [hereinafter Whittington, Federalism 
Offensive]; see also Howard Gillman, Reconnecting the Modern Supreme Court to 
the Historical Evolution of American Capitalism, in The Supreme Court in 
American Politics: New Institutionalist Interpretations 235, 241-46 (Howard 
Gillman & Cornell Clayton eds., 1999) (explaining the New Deal shift in the 
Court's federalism preferences as a result of changes in the national economy 
due to industrialization and suggesting that the reemergence of federalism 
associated with the Rehnquist Court may also be due to major economic changes, 
such as globalization and decentralization).
   n94. Whittington, Dismantling, supra note 93, at 490-503.
   n95. Id. at 510.
   n96. Id. at 511-16.
   n97. Id. at 516. Christopher Schroeder supplements the account by pointing 
to the ways in which distrust of the federal government has grown dramatically 
in recent years. Christopher H. Schroeder, Causes of the Recent Turn in 
Constitutional Interpretation, 51 Duke L.J. 307, 334-51 (2001).
   n98. Joel R. Paul, The Geopolitical Constitution: Executive Expediency and 
Executive Agreements, 86 Cal. L. Rev. 671, 681-83, 708-22, 748-66 (1998) 
(arguing that the judiciary's acceptance of the argument of executive necessity 
in foreign affairs and national security cases during the Cold War, and the 
resulting entrenchment of deference to the executive in these areas, has led to 
a "permanent expansion of executive power"); Jill Elaine Hasday, Civil War as 
Paradigm: Reestablishing the Rule of Law at the End of the Cold War, 5 Kan. 
J.L. & Pub. Pol'y 129, 130-32, 137-40 (1996) (comparing the expansive 
understandings of executive power during the Civil War and the Cold War); Jules 
Lobel, Emergency Power and the Decline of Liberalism, 98 Yale L.J. 1385, 
1398-1412, 1418-21 (1989) (discussing the growth of executive power during the 
twentieth century as a result of the Cold War and U.S. involvement in 
international affairs (such as the drug war, Central America's instability in 
the 1980s, and the Iran-Contra affair)); David P. Currie, The Constitution in 
the Supreme Court: The Second World War, 1941-1946, 37 Cath. U. L. Rev. 1, 4-21 
(1987) (discussing Supreme Court cases dealing with executive and legislative 
powers during World War II).
   n99. Cynthia R. Farina, Statutory Interpretation and the Balance of Power in 
the Administrative State, 89 Colum. L. Rev. 452, 479-87 (1989) (tracing the 
development of the nondelegation doctrine in the twentieth century and its 
application to administrative agencies); Thomas W. Merrill, Capture Theory and 
the Courts: 1967-1983, 72 Chi.-Kent L. Rev. 1039, 1056-59, 1104-06 (1997) 
(discussing the public interest understanding of administrative agencies and 
its influence on the nondelegation doctrine).
   n100. Whittington, Dismantling, supra note 93, at 490-93; G. Edward White, 
The Constitution and the New Deal 94-129 (2000).
   n101. Eric Claeys has thoughtfully argued that the Supreme Court's case law 
can be explained by commitment to a progressive theory of apolitical 
administration. When apolitical administration is advanced, the Court upholds 
the arrangement; when apolitical administration is undermined, the Court 
invalidates the arrangement. See Eric R. Claeys, Progressive Political Theory 
and Separation of Powers on the Burger and Rehnquist Courts (forthcoming 2005), 
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=480691 (last 
visited Sept. 16, 2004). As I suggest in the text, I think the argument misses 
the serious skepticism of agency decisionmaking that is now reflected in 
administrative law doctrines.
   n102. Merrill, supra note 99, at 1059-68, 1075-1112 (discussing the shift in 
the dominant understanding of administrative agencies from public trust to 
capture theory and the resulting consequences for legal doctrines concerning 
agencies); Reuel E. Schiller, Rulemaking's Promise: Administrative Law and 
Legal Culture in the 1960s and 1970s, 53 Admin. L. Rev. 1139, 1142, 1149-55 
(2001) (explaining federal court decisions of the 1960s and '70s that 
heightened review of agency actions and required agencies to engage in 
rulemaking, in part, as a response to criticism that agencies had become 
"arbitrary, inefficient, and inevitability captured by the interests they were 
supposed to regulate") [hereinafter Schiller, Rulemaking's Promise]; Reuel E. 
Schiller, Enlarging the Administrative Polity: Administrative Law and the 
Changing Definition of Pluralism, 53 Vand. L. Rev. 1389, 1417-42 (2000) 
(describing the decline of "interest group pluralism" and subsequent efforts by 
courts to make the administrative process more participatory through the 
doctrines of judicial review, administrative process, and standing) 
[hereinafter Schiller, Enlarging the Administrative Polity]; Richard B. 
Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 
1670, 1712-60 (1975) (identifying the change in attitude towards the 
traditional administrative state and describing the resulting development of 
legal doctrines by federal judges to insure fair representation of parties 
affected by the actions of administrative agencies).
   n103. See M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. 
Chi. L. Rev. (forthcoming 2004).
   n104. See Stewart, supra note 102, at 1717-22 (discussing the requirements 
of administrative process and adequate consideration of interests, the rights 
of participation by individuals in agency proceedings, and the expansion of 
standing); Merrill, supra note 99, at 1074-1103 (discussing the expansion of 
the "availability" and "scope" of judicial review of administrative actions); 
Schiller, Enlarging the Administrative Polity, supra note 102, at 1417-42. Such 
sub-constitutional activity continues apace. See Motor Vehicle Mfrs. Ass'n, 
Inc. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29 (1983); Chevron U.S.A., 
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
   n105. See, e.g., Herman Schwartz, The States' Rights Assault on Federal 
Authority, in The Rehnquist Court: Judicial Activism on the Right 155-67 
(Herman Schwarz ed., 2002) (asserting that the Rehnquist Court's federalism 
jurisprudence is a "states' rights resurgence" and should be understood as a 
masked "assault on those shortchanged by birth and by fortune").
   n106. Steven G. Calabresi, Federalism and the Rehnquist Court: A Normative 
Defense, 574 Annals Am. Acad. Pol. & Soc. Sci. 24, 27-28 (2001) (recounting the 
traditional arguments in favor of federalism (satisfaction of preferences, 
healthy competition between jurisdictions, increased policy experimentation, 
and greater accountability)). In Calabresi's view, federalism "merely perfects 
the Madisonian constitutional system, which pits differently assembled 
majorities in different constituencies against each other in the hope that the 
true popular will thus emerge and prevail." Id. at 35; see also John O. 
McGinnis, Reviving Tocqueville's America: The Rehnquist Court's Jurisprudence 
of Social Discovery, 90 Cal. L. Rev. 485, 489, 511 (2002) (arguing that the 
Rehnquist Court is engaged in a revival of federalism that can be described as 
part of its jurisprudence of "decentralization and private ordering of social 
   n107. Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist 
Court 's Federalism Decisions, 69 U. Chi. L. Rev. 429, 468 (2002) (describing 
the Rehnquist Court's federalism cases as a "mixed picture"). "If the Supreme 
Court is implementing a federalism revolution, it is thus distinctively a 
lawyers' revolution. Though the rhetoric is sometimes audacious, few landmarks 
have toppled. Much of the significance, if not the devil himself, inhabits the 
details." Id. at 494; see also John C. Jeffries, Jr., In Praise of the Eleventh 
Amendment and Section 1983, 84 Va. L. Rev. 47, 47-54 (1998) (explaining the 
impotence of the Eleventh Amendment as "a structural constraint on the powers 
of the federal government").
   n108. Louis Fisher & Neal Devins, How Successfully Can the States' Item Veto 
Be Transferred to the President?, 75 Geo. L.J. 159, 166-67 (1986) (describing 
the different types of veto power that states have authorized their governors 
to exercise).
   n109. Steven P. Croley, The Majoritarian Difficulty: Elected Judiciaries and 
the Rule of Law, 62 U. Chi. L. Rev. 689, 725 (1995).
   n110. Nathaniel A. Persily, The Peculiar Geography of Direct Democracy: Why 
the Initiative, Referendum and Recall Developed in the American West, 2 Mich. 
L. & Pol'y Rev. 11 (1997); Harry N. Scheiber, Forward, The Direct Ballot and 
State Constitutionalism, 28 Rutgers L.J. 787 (1997).
   n111. The argument here is more comprehensively developed elsewhere. See 
Magill, supra note 17, at 632-49.



                         Northwestern University Law Review
                                     Fall, 2004
                                99 Nw. U.L. Rev. 77

NAME: Steven G. Calabresi*

BIO: * George C. Dix Professor of Law, Northwestern University School of Law.

   ...  First, she argues that judicial policing of constitutional federalism 
boundaries occurs with no relation to judicial policing of constitutional 
separation of powers boundaries. ...  The Court showed some solicitude during 
these years for constitutional federalism in its post-Younger v. Harris cases, 
but mainly federalism seemed to be either dead or one vote shy of a majority 
during the high Burger Court years. ... If Professor Magill were right that the 
Supreme Court is always likely to police separation of powers boundaries to 
protect judicial power, surely it would do so in this area. ...  Schechter 
Poultry and Carter Coal were thus not only nondelegation doctrine cases, they 
were also, in the words of Clinton v. City of New York, bicameralism and 
presentment cases. ... Why did everyone miss the fact that Clinton v. City of 
New York was the blockbuster separation of powers case of the Rehnquist years? 
Why was it not immediately recognized as this Court's separation of powers 
Lopez? The answer is that people missed the significance of the case partly 
because Scalia's dissent confused them as to what the conservative position in 
the case was and partly because the Court modestly styled its decision as a 
bicameralism and presentment case denying that it was the nondelegation 
doctrine decision it truly was. ...

   In The Revolution that Wasn't, Professor Elizabeth Magill advances three 
themes that I wish to express only partial agreement with. n1 First, she argues 
that judicial policing of constitutional federalism boundaries occurs with no 
relation to judicial policing of constitutional separation of powers 
boundaries. n2 Second, she argues that the Court will always protect the 
judiciary from separation of powers invasions by the political branches. n3 And 
third, she argues that nothing much has happened during the Rehnquist Court 
years on the separation of powers front. n4 I will attempt to show in this 
Comment that each of these assertions is only partly true. While there is an 
important kernel of truth in Professor Magill's claims, there are significant 
things we can appreciate about the relation of the Court's federalism and 
separation of powers case law by understanding the ways in which Magill's 
claims prove to be overstated. I will address each of her three claims in 
separate parts below.


   First, Professor Magill advances the striking thesis that during the 
Rehnquist Court years there has been a revolution in the Court's handling of 
federalism cases but that there has been no comparable revolution in its 
handling of separation of powers cases. Magill points to leading federalism 
decisions such as United States v. Lopez, n5 United States v. Morrison, n6 City 
of Boerne v. Flores, n7 New York v. United States, n8 Printz v. United States, 
n9 and Seminole Tribe v. Florida, n10 as evidence of the Court's revolution in 
[*78] federalism cases. She contends that because there are no blockbuster 
separation of powers cases that are the equivalents of these federalism 
blockbusters, the Court's rising interest in federalism has not been matched by 
a rising interest in separation of powers. n11 This suggests, she implies, that 
the rising interest in federalism on the Court is due less to the Rehnquist 
Court being more originalist, since that would have presumably led to a 
reinvigoration of separation of powers as well. n12 Rather, she implies the 
Court's added interest in federalism must be due to reduced public confidence 
in centralized governmental power as a way of dealing with social problems. n13

   One way of testing Professor Magill's thesis that federalism and separation 
of powers do not rise and fall together is by looking at time periods prior to 
the Rehnquist Court and asking whether the two areas of case law rose or fell 
together during those prior periods. Looking at the period between 1937 and the 
beginning of the Rehnquist Court in 1986, one finds that Professor Magill's 
contention that there is no relation between judicial policing of federalism 
and of separation of powers is at most only half true. Between 1937 and 1976, 
there are at least three major separation of powers and only one major 
federalism case - a case that was in fact overturned by the passage of a 
constitutional amendment. The separation of powers cases are: Youngstown v. 
Sawyer (the Steel Seizure decision), n14 Powell v. McCormick, n15 and the 
Richard Nixon Watergate Tapes Case, n16 while the federalism case is Oregon v. 
Mitchell, n17 the case striking down a federal statute giving eighteeen 
year-olds the right to vote in state elections.

   During the thirty-nine year period between 1937 and 1976, it is probably 
fair to say that while structural constitutional law in general came close to 
dying out, there was always more vigor left in the Court's separation of powers 
case law than there was left in the Court's federalism case law. Of these four 
cases, the Steel Seizure Case was probably always viewed as the most important 
and canonical. It was always taught in constitutional law courses as a leading 
case during this period and it stood for the assumption that there was a 
judicially policeable line over how much power presidents could assert without 
being backed up by congressional legislation. The other two separation of 
powers cases were also extremely important. Thus, Powell v. McCormick resulted 
in the seating of Adam Clayton Powell, a leading African-American politician, 
as a member of the House of Representatives, while United States v. Nixon 
rather single-handedly brought Richard M. Nixon's ill-starred tenure as 
president to an end. Oregon v. [*79] Mitchell, striking down the 
eighteen-year-old vote in state elections was comparatively of less real-world 
significance since it was overturned by the Twenty-Sixth Amendment. 
Nonetheless, it is worth noting that of the four key structural Supreme Court 
opinions between 1937 and 1976, Oregon v. Mitchell was the only one where the 
Court invalidated an Act of Congress! In none of the three separation of powers 
decisions between 1937 and 1976, the Steel Seizure Cases, Powell v. McCormick, 
and United States v. Nixon, did the Court invalidate an act of Congress.

   In sum, assessing overall the fate of separation of powers cases and 
federalism cases between 1937 and 1976, one would probably conclude that both 
died out to some extent together, although separation of powers always remained 
more lively than federalism. Thus, this period in our history provides only 
partial support for Magill's thesis.

   The next period to consider are the ten years from 1976 to 1986: the high 
Burger Court years. During this period there is a striking revitalization of 
separation of powers case law, and a much more tentative revitalization of 
constitutional federalism. The key starting point of this period is the 
bicentennial year of 1976 when the Court greatly revitalized both separation of 
powers with its Appointments Clause ruling in Buckley v. Valeo, n18 and 
constitutional federalism with its landmark ruling in National League of Cities 
v. Usery. n19 Both Buckley and National League of Cities were decisions of 
great importance. In 1976, at least, separation of powers and federalism both 
rose together from the ashes of the New Deal.

   Over the next ten years, however, separation of powers flourished on the 
Burger Court while federalism languished. In the separation of powers area, 
there were major pro-separation of powers decisions: INS v. Chadha, n20 
striking down the legislative veto provisions of some 200 federal statutes; 
Marathon Pipeline, n21 invalidating Congress's creation of scores of federal 
bankruptcy judges; Dames & Moore v. Regan, n22 which many think implicitly 
departs from the Steel Seizure decision; and Bowsher v. Synar, n23 striking 
down the Gramm-Rudman-Hollings deficit Control Act, a major act of Congress. In 
contrast, the federalism area during the years between 1976 and 1986 saw 
backward slippage as the Court narrowly overruled National League of Cities v. 
Usery in Garcia v. San Antonio Metropolitan Transit Authority. n24 The Court 
showed some solicitude during these years for constitutional federalism in its 
post-Younger v. Harris n25 cases, but [*80] mainly federalism seemed to be 
either dead or one vote shy of a majority during the high Burger Court years.

   This ten year period when separation of powers flourished and federalism 
languished provides the most support for Magill's thesis that the two lines of 
case law do not always rise and fall together. It also helps set up the 
expectations which lead Magill to conclude that there has not been a separation 
of powers revolution during the Rehnquist Court years. n26 Compared to the 
Burger Court's separation of powers case law, the Rehnquist Court looks like a 
bust. That being said, I will try to show below that separation of powers has 
been far more lively on the Rehnquist Court than federalism was during the 
Garcia Burger Court years.

   What do the totality of the opinions between 1937 and 1986 tell us about 
whether federalism and separation of powers rise and fall together? Basically, 
there are only two major federalism rulings during these years: Oregon v. 
Mitchell, overturned by the Twenty-Sixth Amendment; and National League of 
Cities v. Usery, overturned by Garcia. In contrast, there are at least eight 
major separation of powers rulings during this period, none of which were 
overturned by amendment or by a later case. These decisions again were: 
Youngstown, Powell v. McCormick, the Nixon Tapes Case, Buckley v. Valeo, 
Marathon Pipeline, INS v. Chadha, Dames & Moore v. Regan, and Bowsher v. Synar. 
In all eight of these cases, the Court did something major in the separation of 
powers area and it stuck, while relatively speaking, little or nothing was 
happening in the federalism area. This is striking because the political 
movement away from Big Government, certainly during the years between 1968 and 
1986, which Magill credits for the Rehnquist Court's federalism case law, was 
salient and evident. Why then was separation of powers so vigorous and 
federalism so dead between 1937 and 1986, even in the face of a political 
movement away from forces favoring centralized Big Government decision-making?

   The answer to that question lies in the passage early in this century of the 
Seventeenth Amendment, n27 which eliminated the role of the State Legislatures 
in electing United States Senators in favor of popular election of Senators. I 
submit that this fundamental constitutional change eliminated the key 
institutional safeguard that gave the States some leverage over the selection 
process for United States Supreme Court Justices. After the adoption of the 
Seventeenth Amendment, United States Supreme Court Justices were biased 
referees in federalism cases because they were picked by a national official, 
the President, with no check from state governments through the Senate. I would 
suggest that constitutional federalism died out post-1937 as the effects of the 
Seventeenth Amendment cemented themselves in place. Post-Seventeenth Amendment, 
the Supreme Court inevitably became [*81] a more pro-federal power institution 
than it had been at the height of the Hammer v. Dagenhart n28 era.

   In contrast, the Seventeenth Amendment did not tip the Court toward being a 
more pro-president or pro-Congress institution. The current Justices are split 
in their sentiments, with some being very pro-President, like Justice Scalia, 
and others being very pro-Congress, like Chief Justice Rehnquist. For this 
reason, separation of powers case law never died out between 1937 and 1986 in 
the way that federalism case law died out. Some of the nationalists on the 
Court were always pro-Presidency Justices - Fred Vinson, for example, or 
Antonin Scalia - while others like Robert Jackson and William Rehnquist were 
pro-Congress. This is why I submit that the High Court's separation of powers 
case law was more vigorous than the Court's federalism case law from 1937 to 
1986 and is likely to continue to be so.


   Professor Magill further claims that the Court is always likely to vigorously 
police the separation of powers because it will want to protect the Article III 
judiciary from incursions by the two political branches. n29 This claim makes a 
lot of intuitive sense, but unfortunately it turns out just not to be true.

   Consider first the High Court's decisions on congressional power to set up 
legislative, non-Article III tribunals to hear federal cases. If ever there 
were an issue on which Justices ought to circle the wagons in defense of 
Judicial power, surely this is that issue. By claiming power to set up non-life 
tenured, non-Article III tribunals to hear core federal cases, Congress 
directly diminishes the power of the Article III courts to perform their core 
function. If Professor Magill were right that the Supreme Court is always 
likely to police separation of powers boundaries to protect judicial power, 
surely it would do so in this area.

   Surprisingly, the high Burger Court, which was in general very protective of 
separation of powers, turned out in the end to be very unprotective of judicial 
power when it came to congressional creation of non-Article III legislative 
tribunals. The Burger Court started out somewhat promisingly in this field with 
the Marathon Pipeline decision, where four Justices, in an opinion by Justice 
Brennan, suggested that legislative courts were generally constitutionally 
problematic and should be limited to the three areas where they had 
historically been allowed. Though Justice Brennan's opinion in Marathon was a 
separation of powers afficionado's dream, it unfortunately garnered only four 
votes. Two additional Justices, Rehnquist and O'Connor, helped to make up the 
Marathon Pipeline majority, but they did [*82] so only on narrow federalism 
grounds and in subsequent cases, it became clear that Brennan's views on 
legislative courts were far from having five votes. In Commodity Futures 
Trading Commission v. Schor, n30 where the non-Article III Commodities Future 
Trading Commission was given the power to hear state law counterclaims, Justice 
O'Connor wrote an opinion for the Court joined by Rehnquist, in which she 
upheld congressional creation of legislative courts so long as they did not 
interfere "too much" with core judicial powers. Schor was a major decision in 
the legislative courts area, and it remains controlling case law to the present 
day. Thus, even at a time when the Burger Court was active in the separation of 
powers field, the Court bungled its key opportunity to protect the judiciary 
from incursions by Congress through separation of powers doctrine.

   Second, if Professor Magill were correct that the judiciary is particularly 
likely to police the separation of powers to promote its own interests, one 
would expect the standing decisions over the last several decades to expand 
notions of standing in order to expand the number of questions on which the 
federal courts can rule. Broad standing notions as in Flast v. Cohen n31 
clearly expanded judicial power, so presumably in the thirty-six years since 
1968 we should have seen a broadening of standing doctrine as the imperial 
judiciary became more assertive. Instead, we have seen exactly the opposite 
trend in standing doctrine. While there have been many ups and downs in 
standing doctrine over the last thirty-six years, the broad trend has been 
toward a narrower, judicial-power reducing, standing doctrine. In retrospect, 
Flast v. Cohen marks an apex in judicial power from which the Court has worked 
steadily to move away.

   Finally, the Court has been unprotective of the right of jury trial in 
administrative law proceedings, notwithstanding the explicit mandate of the 
Seventh Amendment. The Seventh Amendment could be read as a major barrier to 
trying factual disputes in administrative agencies before administrative law 
judges ("ALJs") instead of before Article III district judges sitting together 
with a jury. The Court, however, has declined to read the Seventh Amendment 
broadly as protecting judicial power in leading cases such as Atlas Roofing. 
n32 As a result, ALJs are able to decide all sorts of important factual 
questions that arguably should be heard by federal district judges sitting with 
juries. Once again, contrary to Professor Magill's thesis, the Supreme Court 
has done a poor job of protecting judicial prerogatives in cases involving the 
right to jury trial. One can always explain this away by pointing to the 
natural tension between judges and juries and hypothesizing that Article III 
Supreme Court Justices have no reason to care about the right to jury trial. 
However, moving large categories of fact-finding decisions [*83] from Article 
III district courts sitting with juries to ALJs clearly diminishes the overall 
power of the Article III courts taken as a whole.


   This brings me to my third point of partial disagreement with Professor 
Magill: Her claim that little has happened on the Rehnquist Court in separation 
of powers compared with federalism. n33 Once again, I think the claim is 
partially true but is overstated. Compared with the high Burger Court, it is 
true that the Rehnquist Court has been relatively quiet in the separation of 
powers area and relatively active in the federalism area. Of course, using the 
high Burger Court as one's point of comparison is inherently misleading because 
that Court was especially pro-separation of powers and especially weak on 
federalism in the Garcia context. Nonetheless, it is fair to say that, whereas 
between 1937 and 1976 and between 1976 and 1986 separation of powers cases 
outnumbered federalism cases by more than three to one, during the Rehnquist 
years the ratio has at times almost seemed to be reversed. Something has 
happened to reduce the salience of separation of powers case law.

   That something is as follows: It is noteworthy that almost all the Rehnquist 
Court's major federalism decisions have been decided on five-to-four votes with 
the barest possible majority on the nine member Court. It is also clear that of 
the five conservative Justices, the two leaders seem to be Chief Justice 
William H. Rehnquist and Associate Justice Antonin Scalia. Rehnquist is clearly 
the political leader of the Court and the chief afficionado of constitutional 
federalism. Scalia is the best writer and most brilliant jurist and theorist on 
the Court. He is the chief separation of powers afficionado and is something of 
a rival to the Chief for the hearts and minds of young conservatives.

   I submit that the reason the Rehnquist Court has been quieter on separation 
of powers than federalism is because these two chief figures on the Court have 
opposite leanings in separation of powers cases. Scalia's leanings are almost 
always pro-executive power. The formative moments in his legal development were 
running the pro-executive power Office of Legal Counsel ("OLC") in the Justice 
Department and reviewing administrative agency decisions as a judge on the D.C. 
Circuit. All of these experiences left Scalia with a decided pro-executive 
power bias that always asserts itself in separation of powers cases.

   Chief Justice Rehnquist's formative separation of powers experience, 
however, was serving as a law clerk to Justice Jackson in the Steel Seizure 
Case, perhaps the most noteworthy pro-Congress separation of powers opinion of 
all time! Rehnquist has written enthusiastically about this formative 
experience and it seems to have cemented in him a pro-Congress [*84] bias in 
separation of powers cases that may explain his votes in Morrison v. Olson n34 
and in Mistretta. n35 While Rehnquist shares with Scalia the experience of 
having headed up OLC, it is possible that holding this post under the 
notoriously lawless Richard M. Nixon left Rehnquist even more skeptical of 
claims of executive power. Indeed, Rehnquist's tenure at OLC is mainly 
memorable today for the principled stand against impoundment which he took - a 
stand that opposed a Nixonian claim of executive power.

   Finally, Rehnquist's pro-Congress bias in separation of powers cases may be 
in part a result of his strong pro-State bias in federalism cases. As between 
the presidency and the Congress, there is no doubt that the presidency is the 
more nationalist branch of government and the Congress is the more pro-State 
power branch. Presidents are elected nationwide and serve a national 
constituency, while congressmen and senators serve state and local 
constituencies. Thus, Rehnquist's strong pro-state bias may further incline him 
toward pro-Congress decisions on the High Court.

   It is my opinion from serving as a Supreme Court law clerk that Rehnquist is 
aware of the fact that he is less pro-separation of powers than either his 
predecessor Chief Justice Warren Burger or Justice Scalia. I was present at 
Rehnquist's dedication of the bust of his predecessor Warren Burger at a large 
ceremony held in the great hall of the Court. In his remarks at that ceremony, 
Rehnquist said that his predecessor would be remembered as a great exponent of 
the separation of powers, and he said this in a way that made me think as a law 
clerk that he did not consider himself to be an exponent of the separation of 
powers to the same degree. That, I think, has turned out to be true. The reason 
why there has been less of a separation of powers revolution on the Rehnquist 
Court is that the two leading figures on that Court, Rehnquist and Scalia, are 
divided as to their allegiances in separation of powers cases. Rehnquist is 
destined to be forever pro-Congress while Scalia is pro-president.

   This then brings me to my final point of disagreement with Professor 
Magill's paper and that is with her assertion that nothing has happened in the 
separation of powers area on the Rehnquist Court. I disagree with this 
assertion and would point to two revolutionary developments in separation of 
powers case law during the Rehnquist years. While I agree with Professor Magill 
that these two developments are not as big a revolution as has occurred in the 
federalism area, I still think they are revolutionary developments that portend 
the ending of the post-1937 New Deal settlement.

   The first development of revolutionary significance on the Rehnquist Court 
is the development of Chevron deference in administrative law cases. n36 While 
this development may have as much to do with the way the D.C. Circuit has read 
Chevron as with what the Court said in that case, it is [*85] nonetheless true 
that the Rehnquist years have seen a consolidation in Chevron deference to 
agencies on how to interpret the statutes they are enforcing. This deference 
has moved power from courts to agencies and so it is another core separation of 
powers development in which the judiciary has not aggrandized itself. It is 
fair to say that Justice Scalia has been a proponent of Chevron deference and, 
by and large, he has gotten his way on this issue when the High Court has 
addressed it.

   The second and even more revolutionary separation of powers decision of the 
Rehnquist Court is Clinton v. City of New York, n37 a case which Magill 
discusses but the importance of which she somewhat understates. n38 In this 
case, a six-to-three majority of the Court struck down the line item veto 
statute, which purported to delegate to the president power to cancel lines of 
spending on the ground that those presidential acts of cancellation were really 
repeals which had to be accomplished through bicameralism and presentment. My 
view of Clinton v. City of New York is that it is in reality a non-delegation 
doctrine case masquerading as a bicameralism and presentment case. I think it 
is the hidden separation of powers blockbuster of the Rehnquist years, as 
important to separation of powers case law as Lopez is to the Court's 
federalism case law. In saying this, I must immediately acknowledge that the 
Court denied in Clinton v. City of New York that it was deciding that case on a 
non-delegation rationale. The Court's mere denial however cannot avoid the fact 
that Clinton really was a non-delegation decision. Saying that it wasn't is not 
enough to make that so.

   Justices Scalia, Breyer, and O'Connor seem to recognize the revolutionary 
significance of Clinton v. City of New York in their dissents to that case. 
Scalia clearly views the decision as an unprecedented application of the 
nondelegation doctrine, a doctrine he vigorously opposes on the separation of 
powers ground that there is no bright line the Court can draw as to how much of 
a delegation is too much. Scalia not only dissents in Clinton v. City of New 
York, he actually dissents from the bench, thus repeating in oral remarks his 
reasons for dissenting. Scalia reserves for unusual occasions the decision to 
dissent from the bench so the fact he employs that technique in this case 
suggests the importance he attaches to it.

   First, one might ask why is Clinton v. City of New York a nondelegation 
case? The answer is that the Court describes the case as involving the granting 
of an impermissible amount of power to the president - power which the Court 
says can only be exercised with bicameralism and presentment. This is the exact 
language of the nondelegation doctrine. When the old pre-Roosevelt Court struck 
down two delegations of power by Congress to the executive, what the Court was 
saying was that the actions those statutes delegated gave power to the 
executive so important that such action [*86] had to be done with bicameralism 
and presentment. Schechter Poultry n39 and Carter Coal n40 were thus not only 
nondelegation doctrine cases, they were also, in the words of Clinton v. City 
of New York, bicameralism and presentment cases. The fact of the matter is that 
the antecedents to Clinton v. City of New York are Schechter Poultry and Carter 
Coal. This case was as big a deal as its pre-New Deal predecessors.

   Second, Clinton v. City of New York involved a statute as important as the 
National Industrial Recovery Act, which the Court struck down in Schechter 
Poultry. Just as that statute was the key legislative enactment of the New Deal 
political movement, the Line Item Veto Act was the key legislative enactment of 
the Newt Gingrich Republican Congress. Both statutes involved a major cession 
of power by Congress to the executive branch and both statutes were struck down 
in what are in essence nondelegation doctrine decisions by the Supreme Court.

   Why did everyone miss the fact that Clinton v. City of New York was the 
blockbuster separation of powers case of the Rehnquist years? Why was it not 
immediately recognized as this Court's separation of powers Lopez? The answer 
is that people missed the significance of the case partly because Scalia's 
dissent confused them as to what the conservative position in the case was and 
partly because the Court modestly styled its decision as a bicameralism and 
presentment case denying that it was the nondelegation doctrine decision it 
truly was.

   Does this more modest styling of the decision limit the case's substantive 
impact? Probably a little bit. It is fair to conclude that the Court called its 
decision a bicameralism and presentment case rather than a nondelegation 
doctrine case because the Court did not intend to hand down decisions of this 
kind every year. The Court probably wanted to strike down the Line Item Veto 
Act as an unusually broad delegation without calling into question the organic 
statutes of all the alphabet soup post-New Deal administrative agencies.

   But before we dismiss the revolutionary potential of Clinton v. City of New 
York, one must remember that even the fearsome old Supreme Court struck down 
only two statutes on nondelegation doctrine grounds. This has always been a 
doctrine that the Court was willing to apply once in a generation but not on an 
ongoing basis for year-in-and-year-out review of congressional legislative 
court decisions. Clinton v. City of New York is this Court's Schechter Poultry 
and unlike Lopez, the Chief actually got six votes for his position in the 
separation of powers area compared to a usual five votes in the federalism 
area. Best of all, from his perspective, the revolutionary nature of his 
victory was totally missed because everyone was confused into missing it by 
Justice Scalia's angry dissent from the bench.


   IV. Conclusion

   What does the future hold with respect to separation of powers case law 
versus federalism case law? I submit the two will rise and fall to some degree 
together, but I think separation of powers case law is likely to do better over 
the long run than federalism case law for the same reason it generally did 
better during the years between 1937 and 1986. The Court is basically 
pro-national power but it is divided between Justices who are pro-Congress and 
those who are pro-President. Probably the biggest change in the Court's 
separation of powers case law is likely to come from the fact that, more and 
more, the Court is reflecting the politics of the distant past. Historically, 
vacancies on the High Court used to arise once every two years which meant that 
at any given point in time a president usually had some sympathetic Justices 
who he had appointed on the Court to hear a case in which his Administration 
was involved. Today, we live in a world where ten years have gone by since the 
last vacancy on the Supreme Court and we have a president, George W. Bush, who 
has not appointed a single Justice. I submit that in this new era where the 
Justices are staying longer and where more years are passing between vacancies, 
the Court is more likely to be pro-Congress and anti-the incumbent President. 
In that respect, too, then big pro-Congress separation of powers rulings like 
Youngstown and Clinton v. City of New York are what we should expect. It is 
thus probably no surprise that the Bush Administration did not fare especially 
well in the three 2004 decisions in the War Against Terrorism Cases.

   n1. M. Elizabeth Magill, The Revolution that Wasn't, 99 Nw. U. L. Rev. 47 
   n2. Id. at 55-56.
   n3. Id. at 56-60.
   n4. Id. at 49-55.
   n5. 514 U.S. 549 (1995).
   n6. 529 U.S. 598 (2000).
   n7. 521 U.S. 507 (1997).
   n8. 505 U.S. 144 (1992).
   n9. 521 U.S. 898 (1997).
   n10. 517 U.S. 44 (1996).
   n11. Magill, supra note 1, at 54-55.
   n12. Id. at 55.
   n13. Id. at 55-56.
   n14. 343 U.S. 579 (1952).
   n15. 395 U.S. 486 (1969).
   n16. United States v. Nixon, 418 U.S. 683 (1974).
   n17. 400 U.S. 112 (1970).
   n18. 424 U.S. 1 (1976).
   n19. 426 U.S. 833 (1976).
   n20. 462 U.S. 919 (1983).
   n21. 458 U.S. 50 (1982).
   n22. 453 U.S. 654 (1981).
   n23. 478 U.S. 714 (1986).
   n24. 469 U.S. 528 (1985).
   n25. 401 U.S. 37 (1971).
   n26. Magill, supra note 1, at 55.
   n27. U.S. Const. amend. XVII.
   n28. 247 U.S. 251 (1918).
   n29. Magill, supra note 1, at 56-60.
   n30. 478 U.S. 833 (1986).
   n31. 392 U.S. 83 (1968).
   n32. Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 430 
U.S. 442 (1977).
   n33. Magill, supra note 1, at 48-49.
   n34. 487 U.S. 654 (1988).
   n35. Mistretta v. United States, 488 U.S. 361 (1989).
   n36. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 
   n37. 524 U.S. 417 (1998).
   n38. Magill, supra note 1, at 49.
   n39. 295 U.S. 495 (1935).
   n40. 298 U.S. 238 (1936).

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