From Sick Chicken to Synar: The Evolution and Subsequent De-Evolution of the Separation of Powers

Abstract

I shall discuss two competing strands in the loosely woven jurisprudence that the Supreme Court has created to resolve controversies regarding the separation of powers in the federal government. One of these I called the "evolutionary tradition." The evolutionary tradition emphasizes the need to adapt the powers of the federal government to the perceived demands of a changing society. This tradition is highlighted by a deference to the congressional judgment on the most effective means for deploying its authority. The judicial approval of the creation of quasi-executive, quasi-legislative agencies, beyond the immediate control of either of the political branches, provides perhaps the best example of this evolutionary tradition. The countervailing strand is the "de-evolutionary tradition." I call it "de-evolutionary" rather than "non-evolutionary" because it is not preservative. Rather, the de-evolutionary tradition actively seeks return to a system of balanced and separated powers modeled closely on the governmental design that the Framers had in mind when they established a constitutional government. This tradition rejects the view that evolution in the larger society requires a concomitant evolution in the manner in which the federal government organizes itself for the exercise of power. In an earlier era, the de-evolutionary tradition was represented by the Supreme Court's effort to use the non-delegation doctrine to halt the New Deal. More recently, this de-evolutionary tradition has led to the Court's decisions to strike down the legislative veto in Immigration and Naturalization Service v. Chadha and the Gramm-Rudman-Hollings delegation of significant budget-cutting authority to the Comptroller General in Bowsher v. Synar. The important distinction between the traditions is one of emphasis. Neither tradition denies the central facet of the other. The evolutionary tradition is not blind to the need for constitutionalism in the working of the American system, and the de-evolutionary tradition does not seek to refute the claim that the nature of society and the shape of the government are constantly changing. Evolutionary judges still demand some limits on how the government deploys its powers, and de-evolutionary judges often permit the other branches a substantial degree of freedom in construing their own powers. But to the de-evolutionary judge, the crucial concern in adjudication under the separation of powers is legitimacy and the need for constitutional authority. The evolutionary judge is more concerned with the efficiency—perhaps a better term is effectiveness—of government operation. Thus, although they overlap in places, the two traditions push quite powerfully in opposite directions.