Document Type

Working Paper

Publication Date

9-5-2015

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; AARN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Institutions eJournals; Political Science Network; Anthropology & Archaeology Research Network

Abstract

Contemporary separationofpowers theory and practice generally rely on two competing theories "” formalism and functionalism "” to frame and decide contested questions about the scope of each branch's constitutional power and authority In some areas this dichotomy works reasonably well and possesses significant explanatory force But the dichotomy's utility is considerably less obvious in the context of the federal appointments processThe Supreme Court's recent decision in National Labor Relations Board v Noel Canning crisply demonstrates the limitations of formalism and functionalism in resolving separationofpowers questions that equally implicate text structure and historical practice Moreover Justice Breyer's Noel Canning opinion deftly transcends the formalismfunctionalism dichotomy even while relying on textual structural historical and practical arguments drawn from both modes of separationofpowers analysis Noel Canning teaches that constitutional text by itself will not always yield clear or reliable answers to difficult separationofpowers questions The decision also highlights a serious shortcoming in formalist legal analysis When the Constitution expressly vests conflicting powers in different branches "” as in the context of staffing the executive branch "” purely formalist analysis will not suffice Simply put the Framers not only separated powers they also blended them In many important areas the constitutional text does not clearly specify where one branch's authority ends and another's beginsA workable account of the federal appointments process requires careful consideration of structure and practice of original intent and appointments conventions developed over time and of the conflicting textual imperatives of the Senate's adviceandconsent power and of the unitary executive understood in light of the President's Article II "take care" duty In order to develop an effective separationofpowers jurisprudence the federal courts must transcend the formalismfunctionalism dichotomy in this important area of separationofpowers theory and practice More broadly the shortcomings of the formalismfunctionalism dichotomy in the context of appointments suggest the need to rethink the dichotomy more broadly as well

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