Document Type

Working Paper

Publication Date

11-2-2012

SSRN Discipline

Legal Scholarship Network; PSN Subject Matter eJournals; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; Administrative Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Institutions eJournals; Sustainability Research & Policy Network; Political Science Network

Abstract

Formalism has returned displacing the flexible functionalist separationofpowers analysis that often characterized the Supreme Courts separationofpowers 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 separationofpowers decisions as well A new formalism now appears to govern the Courts contemporary separationofpowers jurisprudence "” with the defenders of more flexible functional approaches to separationofpowers 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 separationofpowers doctrine Even so if the Roberts Court's decisions mean what they appear to say serious constitutional questions exist about the constitutional validity of cooperative federalism 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 separationofpowers grounds because the president arguably lacks sufficient direct oversight and control of the stategovernment officers who administer and enforce federal law on a daytoday basis But the Supreme Court need not follow the logic of its more recent separationofpowers decisions to this ultimate conclusion plausible arguments exist to support the claim that cooperativefederalism programs do not violate separationofpowers 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 administrativelaw practitioners should consider carefully whether cooperativefederalism 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

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