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American Bar Association




Separation of powers is one of least understood doctrines in U.S. law and politics. Underlying a great deal of separation of powers analysis is the conventional view that the United States Constitution requires a strict separation between the three branches of government and that efforts within one branch to influence or control the exercise of another branch’s powers are illegitimate and should be rejected whenever possible. Although its simplicity might be appealing, this image of strict separation is inconsistent with both the Framers’ understanding of separation of powers and with the law as developed by the Supreme Court in the face of the explosive growth of the regulatory state over more than a century. This article articulates an inductive understanding of separation of powers as practiced under the United States Constitution, arrived at by examining case law and actual practice, not deduced from general principles or an ideal conception of separation of powers. Although the Supreme Court’s recent decision in Free Enterprise Fund v. Public Company Accounting Oversight Board, 130 S. Ct. 3138 (2010), striking down, on separation of powers grounds, the statutory provision regulating removal of Board members adverted to the Vesting Clause of Article II, the Vesting Clauses of the Constitution’s first three articles have not been particularly important to the resolution of actual disputes over the separation of powers. The Court does not decide separation of powers controversies by determining the nature of a power and then assigning it to the appropriate branch as specified in the Vesting Clauses. Using examples from across the spectrum of separation of powers controversies, this article establishes that the basic principle of separation of powers under the United States Constitution involves strict enforcement of the Constitution’s structural and procedural requirements for action by each branch and great flexibility and deference to Congress when ruling on whether a more general principle of separation of powers has been transgressed.

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