Judicial Modification of Statutes: A Separation of Powers Defense of Legislative Inefficiency

Abstract

The separation of powers scheme prevents any branch of the federal government from exercising authority constitutionally delegated to another branch. Beyond this, the separation of powers scheme also defines particular procedures for each branch to follow in exercising its own constitutional authority. While Article III confers some jurisdiction on the Supreme Court to decide particular cases, Article I confers on a bicameral Congress of elected representatives the power to make laws subject to executive veto. These procedures create unique institutional interests in each branch. To exercise its judicial power under Article III, the Supreme Court must resort to principled extrapolations from existing law to find rules of decision fitting the specific facts of each case.