James Madison famously articulated a functional account of our governmental structure; he and his Federalist brethren created overlapping authority to prevent any single branch of government from acting unilaterally to dictate policy for the nation as a whole. And for more than two hundred years, the focus has been on just that: action. But the Framers and their intellectual heirs have failed to update their story to account for the government we have. In the modern administrative state, the President’s refusal to enforce duly enacted statutes—what we call “presidential inaction”—will often dictate national policy and yet will receive virtually none of Madison’s checks and balances. This asymmetry between action and inaction cannot be justified if we are to be faithful to Madison’s notion that inter-branch competition lies at the core of our constitutional regime. This Article therefore seeks to re-envision the law and theory of separation of powers by viewing it through the lens of presidential decision-making, rather than the impoverished distinction between action and inaction.
But even though presidential inaction deserves checks and balances as a matter of theory, we lack those safeguards as a matter of practice. In particular, the Article suggests that when the President and his agencies choose not to act pursuant to the legislative will, the separation of powers breaks down. For while Congress can use its traditional powers to enforce checks and balances when the President pursues action out of line with its wishes, those tools are simply inadequate when it comes to policing inaction, in some cases because Congress lacks the motivation or the knowledge to intervene and in others because the technical requirements for intervention are not met. Moreover, courts have been reluctant to review Executive refusals to act for reasons that are readily recognizable.
Refocusing separation of powers to account for inaction—and recognizing the shortcomings of the Executive’s coordinate branches—illuminates a structural bias in our constitutional system: the failure of Congress and the courts to police inaction will inevitably bias outcomes toward less government intervention than the enacting Congress intended, and thus less than the Constitution requires. The relative institutional capacities of the various players make the solution clear: our approach would call on Congress to assume the role of robust adversary to the Executive, a role it can play far better than the Judiciary can. Moreover, it would offer new insights on old problems, from administrative deference to statutory interpretation to federalism.
- Separation of powers
Available at: http://works.bepress.com/jeffrey_love/1/