Formalism has returned, displacing the flexible, functionalist separation-of-powers analysis that often characterized the Supreme Court's separation-of-powers decisions during the Rehnquist Court. Free Enterprise Fund v. Public Co. Accounting Oversight Board provides powerful evidence of this emerging trend. Moreover, a reliable majority of the Justices have strongly embraced formalism in other important separation-of-powers decisions as well. A new formalism now appears to govern the Court's contemporary separation-of-powers jurisprudence-with the defenders of more flexible, functional approaches to separation-of-powers questions relegated to writing dissents. The Roberts Court, however, has failed to elucidate fully the precise scope and meaning of its new formalist vision for separation-of-powers doctrine. Even so, if the Roberts Court's decisions mean what they appear to say, serious constitutional questions exist about the constitutional validity of cooperativefederalism programs in which states have primary responsibility for the administration of important federal labor, environmental, and healthcare programs. Simply put, the new formalism renders such programs open to serious constitutional attack on separation-ofpowers grounds because the president arguably lacks sufficient direct oversight and control of the state-government officers who administer and enforce federal law on a day-to-day basis. But the Supreme Court need not follow the logic of its more recent separation-of-powers decisions to this ultimate conclusion; plausible arguments exist to support the claim that cooperative-federalism programs do not violate separation-of-powers doctrine even under a demanding formalist analysis. Until the full implications of the Roberts Court's embrace of the new formalism are known, legal scholars, federal judges, and administrative-law practitioners should consider carefully whether cooperative-federalism programs can successfully be reconciled with the imperatives of the unitary executive and its requirement of direct presidential control and oversight of the administration of federal law.
Ronald J. Krotoszynski Jr.,
Cooperative Federalism, the New Formalism, and the Separation of Powers Revisited: Free Enterprise Fund and the Problem of Presidential Oversight of State-Government Officers Enforcing Federal Law,
Available at: https://scholarship.law.ua.edu/fac_articles/668