By AZIZ HUQ
Review of The Three Branches: A Comparative Model of Separation of Powers, by Christoph Möllers
Oxford: Oxford University Press, 2013
As a constitutional idea, the “separation of powers” is at once both obscure and replete with radical, even revolutionary, potential. In a recent opinion, Chief Justice John Roberts labeled the division between the three branches a “sacred” element of the founding document. This seems apt: The idea has inspired judges to spin a hieratic web of homely catechisms and homiletic myths in furtherance of what Justice Scalia has called “a distinctively American political doctrine.”
But what, beyond a rough tripartite division of national institutions, does the separation of powers mean? And why is it normatively superior to other arrangements, such as the British constitution’s concentration of power in the Queen-in-parliament? Here, consensus crumbles. Like many sacerdotal accoutrements, the idea of separated powers is more often invoked than understood. When conjured by jurists in particular, usually through judicial habit or reflex, its foundations and consequences are glimpsed only dimly. Despite a hallowed jurisprudence arguably traceable to the early Republic and canonical opinions such as Marbury v. Madison, the Court’s contemporary applications of the separation of powers tend to have only exiguous effects on practical governance.
Consider a recent spate of cases the Roberts Court has decided under a separation-of-powers flag. The Justices have clawed back some power from non-life-tenured bankruptcy judges to pronounce final judgments in certain state law claims; required that certain administrative officials be separated from the president by no more than one level of supervisors; and moved Guantánamo detainees’ complaints from an administrative to a judicial forum. Even the last of these is less consequential than might appear at first blush, since a vanishingly small number of detainees have been able to avail themselves of their new-fangled right. There are older cases in which the separation of powers may have nudged important policies—such as President Truman’s efforts to secure labor peace during the Korean war. But by and large, the separation of powers, at least in its appearances on First Street NE, emits more light than warmth.
At the same time, the separation of powers has potential in theory to destabilize key pieces of the federal government’s institutional architecture. In six staccato solo opinions over the last year, Justice Clarence Thomas has delved into his seemingly endless wellspring of originalist inspiration to suggest that the Constitution’s separation of powers compels radical surgery on numerous established practices used across the federal government. The challenged practices include Congress’s delegations to administrative agencies; courts’ allowing agencies to resolve ambiguities in federal statutes; and the licensing of some adjudication within agencies by non-life-tenured officials. While there is no indication Justice Thomas stands at the cusp of securing a majority of the Court on these issues, his opinions map with great acumen the potential domain of a hypertrophied separation of powers. Like many notionally historical accounts of what the Constitution requires, Justice Thomas’s description of the separation of powers would entail severe, perhaps disabling, correction of much ordinary governance.
The spread between the separation of powers in (originalist) theory and in practice is propelled by a diversity of opinions over how to give that incantatory phrase substance. At one pole is Justice Thomas’s originalist enterprise. That mission is hindered by the awkward fact that the drafters of the 1787 Constitution did not see fit to include the phrase “separation of powers” in its text, or to provide extensive definitions of key terms, such as “judicial” or “executive.” It’s also quite plausible to think that the third term, “legislative,” is defined so ham-handedly it’s unlikely to illuminate. Article I of the Constitution, for example, doesn’t give Congress power to enact general criminal statutes or build interstate roads or canals—seemingly debilitating lacunae. In contrast to this textual deficit, Article 16 of the French 1789 Declaration of the Rights of Man and of the Citizen announced that “any society in which rights are not guaranteed, or in which the separation of powers is not defined, has no constitution.” (So much for the “distinctively American” pedigree of the separation of powers).
Bereft of clear textual moorings, the originalist judge is free to tack between the diverse models offered by post-Glorious Revolution Britain, pre-1787 Article of Confederation, and one of the many arrangements articulated in early state constitutions. By treating these as alternatively positive or aversive precedent, while pitching their analysis at either a granular or an abstract level of generality, different judges can reach a diverse array of “originalist” outcomes. As in many other areas of constitutional law, originalism yields an array of answers rather than a solution.
At the other pole from Justice Thomas is the functionalist approach favored by Justice Stephen Breyer and his kindred liberals. Functionalists assume that the architecture of the federal government aims toward a set of particular normative ends, and evaluate disputed arrangements in terms of whether they retard or enable such ends. The problem with functionalism is that the ambitions typically associated with the separation of powers are often irreconcilable or subject to hard trade-offs.
Consider in that regard Chief Justice Roberts’s remark in the recent opinion on bankruptcy courts that the separation of powers conduces to “liberty and accountability.” A moment’s pause suggests this concatenation is at best mysterious and at worst confused. One standard account of separation of power’s effect on liberty focuses upon the effect of requiring plural institutional licenses before state action—a gatekeeping arrangement that is supposed to temper state intrusions into private ordering. But the very same institutional arrangement that supposedly generates individual liberty means that individual voters seeking retrospective accountability at the ballot-box must distinguish between the House, the Senate, the President, the implementing administrative agency, and the reviewing court to determine who was responsible for a particular policy effect on the ground.
In any case, it is by no means clear that a political system that protects ex ante private orderings of property and personal interests is one that also maximally protects “liberty.” Set aside the point, familiar to J.S. Mill, that liberty is imperiled by both state and private action. Assume only state threats to liberty matter. Still, once a Constitution is created, and after a tolerable period of institutional development, the ex ante status quo that a Congress contemplates is as much a product of its predecessors’ interventions as any just state of nature. Just as much as formalist approaches, that is, the functionalist lens on the separation of powers yields more confusion than clarity.
If American traditions are unilluminating, it might well be worth asking whether other jurisprudential traditions generate more insight. The separation of powers (again pace Justice Scalia) is not an American demesne. English and Irish scholars have published books and articles in recent years, and perhaps an extrinsic perspective in which the separation of powers is not viewed with such parochial pride and anxiety might shake free new insights. In contrast to the historical and consequentialist approaches familiar from U.S. scholarship, Christopher Möllers’s new monograph on the separation of powers promises a “comparative” approach centered around what he calls a “monistic normative approach,” one that issues in a “conceptualization” of the separation of powers as a “normative framework that can be understood as being implicit in different constitutional orders.” (pp. 3-4, 10-15). A professor of public law at Humboldt University in Berlin, Möllers defines his conceptual approach in terms of Hegel’s Elements of the Philosophy of Right, while invoking en passant the “Kantian theory of law” and Habermas’s discourse ethics, in the quest for a theoretical basis for the separation of powers. The question framed by his work is whether harnessing a German idealist strand of continental philosophy, among other philosophical resources, provides a grounding for the separation of powers that has escaped more sublunary American theorists and jurists.
The short answer is no. Notwithstanding Möllers’s threshold statement that his theory will be “monistic” (in the sense of pivoting on a single normative criterion), he finds normative justifications in several divergent normative registers, and then builds a rather complex theoretical apparatus to explain his judgments of institutional design at the level of national constitutions, supranational entities such as the European Union, and international bodies such as the World Trade Organization. I will endeavor to summarize the somewhat baroque and recondite line of argument developed in the second and third of his five chapters—chapters that comprise the theoretical heart of the book. Hindering matters further, Möllers also writes like, well, a German. (Anglophone aficionados of the short, clear sentence will find little to love in his book).
Möllers starts with the proposition that liberty is the (monistic) goal of the separation of powers, but then immediately distinguished two kinds of liberty—individual and collective—in a way that rather defeats the spirit of what I thought would fairly be called monism. He then asserts that it is the simultaneous pursuit of both species of liberty (or “autonomy” or “self-determination”—all three terms seem to be used as synonyms) that renders a public authority “legitimate.” Following Kant, moreover, he defines “freedom” as solely the freedom to act rationally “only through the giving and receiving of reasons.” (p.57). But then, perhaps abandoning Kant, Möllers concedes that it would be disabling to demand from each individual reasons for every public choice he or she made (p.60).
Only after this preamble do we get close to the separation of powers. Individual and collective self-determination require different kinds of legal protections to be realized. Individual self-determination is furthered when an individual seeks a retrospective remedy for his or her actions (pp.69-70), such as through a legal action for damages. Collective self-determination, by contrast, is achieved only by “an expression of the democratic will” that results “from a process that has respected … democracy-constituting standards” that Möllers elaborates at some length (p.75). The “central task” of the separation of powers, on this account, is to furnish “procedural mechanisms” to deal with conflicts between individual and collective self-determination” (p.78). In the end, this conduces to a legislature that articulates collective judgments, to courts that rule retroactively on claims to individual liberty, and to an executive that, rather mysteriously, will “mediate between and connect the two modes of legitimacy” (p.96).
There is much to resist even in this skeletal account of Möllers’s argument. There are, for example, the profound puzzles (barely registered in Möllers’s account) about why freedom should be a universal touchstone, and about how exactly freedom, in that capacity, should best be understood. To be sure, Möllers’s dualist approach has a respectable pedigree dating at least back to Constant’s distinction between the liberties of the ancients and of the moderns. But Constant hardly had the last word in mapping the domain of “liberty.” Most obviously, Isaiah Berlin’s justly renowned account of the inevitable conflicts between positive and negative liberty, and the aggrandizing dynamic of positive-liberty claims, is relevant here. Berlin is cited but not adequately discussed.
Nor are Möllers’s other normative commitments given sufficient ballast. Why, for example, should freedom be defined in Kantian terms that fail to capture the behavior of most democratic citizens most of the time? Is liberty, however defined, really secured best by a combination of legislative deliberation and retroactive relief? Finally, the institutional consequences of Möllers’s analysis are opaque. For example, why can’t the goals that Möllers picks out be pursued within a system that lacks an institutional separation between legislatures, courts, and the executive? (The United Kingdom provides a useful counter-example here). Nor does Möllers convince in the retail applications of his “conceptualization” of the separation of powers: His criticism of forward-looking injunctive relief, as distinct from retrospective damages remedies, for example, will fall flat for readers familiar with the history of post-World War II litigation around school desegregation in the United States.
If there is a lesson for a domestic audience interested in the separation of powers in Möllers’s book, I thus fear it is different from the one he intends. Rather than pointing towards the feasibility of “monistic” accounts of institutional design in complex modern states, the twists and turns of Möllers’s argument illustrate—abundantly but perhaps inadvertently—that such decision designs implicate many conflicting normative goals simultaneously. These include liberty (of diverse forms, against diverse threats), accountability, integrity, welfare-maximizing government, deliberation as an intrinsic good, and likely others too. Reasonable people—including reasonable constitutional designers—will incorrigibly disagree about which to pursue, and which to sacrifice. There aren’t “monistic” solutions to the questions that Möllers press. There is a range of reasonable institutional design choices.
Moreover, Möllers understates the degree to which the effect of institutional arrangements depends on extrinsic social and political circumstances. To give a rather extreme example, in some post-conflict contexts, it may be unwise to rely too heavily on an institutional judiciary to protect rights because of an absence of trained lawyers. Less exotically, individual liberty might be vindicated best by different mixes of retroactive and injunctive relief depending on what sorts of threats it faces, how judgment-proof state defendants are, and whether citizens are well-resourced enough to await retrospective judgments. To align liberty with retrospective relief as Möllers does seems at best hasty. Even if one had a “monistic” normative agenda, that is, one might think constitutional design is a matter best done in situ, not in the abstract.
Consider instead a final lesson one might infer from the Möllers’s analysis—once more reading against the grain of his intentions. One might conclude that American jurists ought to worry far less about the separation of powers than they currently do. The cases decided by the Roberts Court on separation-of-powers grounds that I listed above are, perhaps with one exception, not ones that cut to the Republic’s bone. Despite heated rhetoric on both sides of the bench, the stakes in these cases are often less than they initially appear. Indeed, although it produces a good deal of litigation, the Constitution’s rough division of responsibilities between three basically distinct branches seems to be more or less workable without judicial troubleshooting. To the extent that division of power is perceived to fall short—as critics of congressional deadlock argue—courts have no obvious remedial role to play.
Nor need we worry overly about the lawlessness of elected officials. Even a rigorous formalist should concede that the law—understood as the sematic content of the Constitution—can be read as setting forth only vague prerequisites for institutions. To the contrary, the structural provisions of the Constitution might plausibly be read as invitations to innovation and variation, eliciting changes justified by the very goals that the Framers set themselves. Even when politicians get it wrong, it doesn’t follow that courts should intervene. The consequences of institutional tinkering at the margins are unlikely to be pernicious. On balance, a quietist Court might do less harm than an aggressive Court that erroneously bars needful innovations.
If we take these lessons to heart, the constitutional separation of powers, rather than “sacred,” would become something mundane—something so ordinary, indeed, it didn’t warrant the time of day at 1 First Street NE.
Posted on 25 November 2015
AZIZ HUQ is Professor of Law at the University of Chicago Law School.