Toward Separation of Powers Realism

Abstract

Many wonder if the separation of powers is going to be reinvigorated by the new appointees to the federal judiciary. But that doctrine in practice means that occasionally alarming, but exceedingly rare, doctrinal innovations— finding venerable parts of the administrative state or portions of high-profile congressional statutes to be unconstitutional, for example—make no real-world difference because of the modest remedies paired with those innovations. This Article shows how weak the separation of powers doctrines have become; explains how, in the rare case that the doctrines require a remedy, the remedy is almost never what the plaintiff seeks or a constraint on the administrative state; and analyzes why judges of every ideological stripe have turned away from the doctrine. It adds a comprehensive study of the past two decades of practice by the Supreme Court and D.C. Circuit to the existing literature and argues that we would be better off abandoning efforts to reinvigorate the functional versions of the doctrines.