New Paper by Shalev Roisman Proposes Test for Separation-of-Powers Questions
The separation of powers among the federal legislative, executive and judicial branches is as old as the U.S. Constitution itself. And yet, courts continue to struggle with disputes among the branches.
In a new article, Shalev Roisman, associate professor of law and distinguished early career scholar at the University of Arizona James E. Rogers College of Law, proposes a balancing test that he says addresses the weaknesses of the two current dominant approaches.
In “Balancing Interests in the Separation of Powers,” forthcoming in the University of Chicago Law Review, Roisman proposes a two-part interest balancing test. The first part asks whether the action of one branch interferes with the powers of another. If so, the second part asks whether the interest served by the interference is sufficiently strong to be justified. Roisman’s interest balancing test is very similar to the Constitutional levels of scrutiny that have long been applied in the context of individual rights.
In formulating the interest balancing test, Roisman drew upon his experience at the U.S. Department of Justice Office of Legal Counsel, where he advised the president and executive branch agencies. “I did a lot of work on separation-of-powers disputes,” Roisman recalled. “And in doing that, I noticed that when Congress and the president both have power to act and come into conflict, there was no real coherent way that we had to resolve those conflicts.”
The two conventional frameworks are called formalism and functionalism. According to Roisman, formalism looks to which branch has exclusive power. The problem with this approach, he said, is that often two branches both have some authority.
On the other hand, functionalism asks whether the action in question is among the branch’s “core” or “peripheral” powers and seeks to maintain a general balance of powers. The problem with this approach, Roisman’s article states, is that “there is no clear way to differentiate ‘core’ from ‘peripheral’ powers, or any answer for what to do when two ‘core’ powers come into conflict.”
One relatively common example is whether Congress can impose limitations on when the President can remove executive branch officers. Roisman posits that if the executive branch has exclusive power over executive agencies under a formalist view, no Congressional regulation of removal should be permitted.
Roisman’s interest balancing framework would recognize that giving Congress some authority over when executive branch actors can be removed does encroach upon executive powers, but it can be justified by Congress’s reasons for imposing such limitations. One such interest is in the stability of a nonpartisan civil service. “We had a patronage system where essentially everyone in the government could be appointed because of their political party affiliation in the nineteenth century, and that did not work well. Congress thought that we needed to give protections to civil servants so that there isn’t this constant in and outflow every time the administration changes,” he noted.
Roisman recognizes that the interest balancing approach he advocates requires courts to undertake subjective analysis but the article notes that courts have long considered a similar balancing test for individual rights.
“People have struggled with this question for a long time of how to resolve disputes between Congress and the president and it’s actually quite hard to say something new about it,” Roisman said. “I am proud of the paper in that it is contributing to the debate by providing an alternative method.”