April 2010, Volume 96, Issue 2
Unbundled Powers
by Jacob E. Gersen
96 Va. L. Rev. 301 (2010)
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If the dominant aspiration of constitutionalism is to constrain government, avoid tyranny, and produce desirable public policy, then separation of powers and elections are surely the mechanisms of choice in United States. The eloquent idea that the combination of powers in the same hands is the very definition of tyranny has been repeated by prominent constitutional theorists including Montesquieu, Blackstone, Madison, and many others. The U.S. Constitution, of course, adopts the Madisonian variant on separation of powers: (1) dispersion of government authority, accomplished by (2) allocating the functions of government or, equivalently, types of government power, into (3) three branches, the (4) leadership of which is selected via different mechanisms, each with (5) more or less balanced powers to be exercised in accordance with (6) checks, whereby one institution can raise the costs of action by another. The costs and benefits of separating and combining government functions in this way have been well canvassed over the years in debates between presidentialists and parliamentarists.
Note, however, that these debates presuppose that if government authority is to be separated and allocated to different branches, the only or at least the best way to do so is by government function (executive, legislative, judicial). In the United States, government functions are separated, but the functional authority of each branch includes the power to act over all policy domains, at least as a default. There is one Congress that exercises the legislative function for all policy domains rather than two Congresses, one for foreign affairs and one for domestic affairs. Functions are separated and substantive powers are bundled together within each function.
The questions of whether and how to separate government functions have dominated debates in constitutional theory since the founding. While clearly important, these disputes obscure alternative regimes by making what is actually a design choice seem like an inevitable feature of the institutional landscape.
In fact, structural separation of functions across branches was originally described as an auxiliary precaution; electoral mechanisms were to be “the primary control on the government.” On the auxiliary precaution view, it is necessary to separate functions and allocate them to different branches precisely because elections are an imperfect check on government action. What these early descriptions belie, however, is that the effectiveness of elections is itself a function of the structure of topical government authority. One might well sacrifice the benefits of combined powers regimes to guard against the more serious threat of tyrannical rule. The more electoral mechanisms constrain the government, however, the less the need to separate functions. Unbundling topical powers facilitates electoral control of public officials: as a consequence, the need for auxiliary protections is less.
Focusing on this latter set of design questions also helps clarify why some conventional claims made in the separation of powers debates are wrongheaded or at least incomplete. Passages in the Supreme Court’s separation of powers cases often read as implicit claims of uniqueness or optimality. Separation of powers produces liberty, accountability, and effective government; other regimes do not. Separation of functions, however, is neither the only nor clearly the best way to achieve these laudable goals. The paper’s main task, therefore, is to compare U.S. style separation of functions with what the paper calls the unbundled powers alternative: multiple branches exercising combined functions in topically limited domains. Functional separation is certainly sometimes preferable, but there is no good reason to think it is better as a global matter; and there are many reasons to think it is not.
Although functional separation has long been the dominant approach to allocating federal government authority in U.S. constitutional theory, it is not the only approach. Just as functional authority can be separated or combined in political institutions, substantive policy responsibilities are sometimes bundled and sometimes unbundled. Additionally, topical allocation is not just an alternative to functional allocation; empirically, the two often coexist. The power to make policy in most fields can be separated by function, while a different political institution wields exclusive authority to make policy in one domain. Functional separation can be employed instead of or together with topical unbundling.
This paper is structured as follows: Part I presents a general theory of unbundling government authority. The idea is generic and can be used to analyze executive branch structure, local government, federalism, and other constitutional structures. Part I then applies the unbundling model to the problem of branch design in the federal government, clarifying the theoretical relationship between the allocation of government functions, division of policy responsibility, and electoral control. Part II compares Madisonian separation of functions with the unbundled powers regime on a series of standard constitutional design dimensions like accountability, energetic government, avoiding tyranny, protecting against factions, and so on. The list is inevitably incomplete, but the idea is ask how unbundled institutions perform along these critical dimensions. Part III emphasizes the role of courts and constitutional doctrine in the unbundled powers structure.
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