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101 Tex. L. Rev. 89 (2022-2023)
Checks, Not Balances

handle is hein.journals/tlr101 and id is 90 raw text is: Checks, Not Balances Joshua C. Macey* & Brian M. Richardson** Critics of the administrative state who would revive the nondelegation doctrine and embrace the unitary theory of executive power often assume that each branch's powers are capable of precise definition, functionally distinct from the others, and that the formal boundaries between each branch are sacrosanct. This Article situates these critiques in Founding Era and nineteenth century debates about the structure of the Constitution. In the 1780s, the Anti- Federalists objected to the Constitution for failing to enumerate a precise taxonomy of each branch's powers, for failing to specify that each branch's powers were exclusive, and for failing to make government officials sufficiently accountable to the voting public. The drafters responded that the Anti-Federalist approach would neither support effective government nor prevent the branches from acting tyrannically. Rather than develop a scheme of discrete and precisely divided powers, as the Anti-Federalists proposed, the drafters preferred precise rules of inter-branch coordination to ensure that no one branch dominates the others. This debate continued throughout the nineteenth and early twentieth centuries, with influential legal minds such as Daniel Webster and Joseph Story rejecting the Anti-Federalist theory of separation of powers. We call this a theory of separation of powers based on a principle of anti- domination. On this view, the separation of powers is breached only if one branch deprives another of its procedural capacity to check the others. We further argue that this theory (a) provides a plausible account of the Framers' understanding; (b) has had significant purchase in the development of inter- branch relations since the Founding and thus can serve as a kind of rational reconstruction of historical practice; and (c) is consistent with the relevant constitutional text and the overall constitutional structure. INTRODUCTION.................................................................................... 90 I. CRITIQUES OF THE ADMINISTRATIVE STATE............................. 100 A. The Nondelegation Doctrine........................................... 100 B. The Unitary Theory of Executive Power ........................ 104 II. RESPONSES TO ADMINISTRATIVE SKEPTICS .............................. 106 * Assistant Professor, The University of Chicago Law School. ** Assistant Professor, Cornell Law School. We would like to thank Akhil Amar, Will Baude, Curtis Bradley, Emily Bremer, Cary Coglianese, Michael Dorf, Blake Emerson, Bridget Fahey, Aziz Huq, Will Havasy, Hajin Kim, Genevieve Lakier, Odette Lienau, Neysun Mahboubi, Jerry Mashaw, Jonathan Masur, Gillian Metzger, Jennifer Nou, Nicholas Parrillo, Eric Posner, Jeff Rachlinski, Shalev Roisman, Bill Eskridge, David Pozen, Farah Peterson, Aziz Rana, Peter Shane, Peter Strauss, Jed Stiglitz, Ilan Wurman, and David Zaring.

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