My dissertation, Perverse Politics: The Legal Subversion of the Constitution’s Political Architecture, explores how an overly legalistic conception of separation of powers can undermine the healthy practice of constitutional politics.
Separation of powers is often understood in terms of constraint, the frustration of power meant to better protect individual liberties. Many contemporary diagnoses of modern constitutional ills view one of the major problems of contemporary politics as ultimately stemming from a failure of the Constitution’s legal framework. Some argue, for example, that we need a more sophisticated legal regime to restrain the imperial presidency. Others subscribe to the Wilsonian critique of the Constitution, arguing that the checks and balances system is antiquated and ill-suited to the demands of modern government.
Contrary to this negative understanding, I argue that separation of powers is better understood as a political architecture designed to create and sustain a certain type of politics through political conflict between differently-structured political institutions. These differently designed institutions are meant to bring the competing perspectives of constitutional democracy to bear on the practice of ordinary politics (for example, the deliberative and majoritarian perspective of Congress vs. the energetic and national perspective of the executive). The Constitution’s legal assignments of power, therefore, ultimately point beyond the text to affirmative institutional duties that aren’t irreducibly legal. Similarly, checks and balances are not merely about restraint, but rather are the mechanism that draws these competing perspectives into productive political conflict.
Robust constitutional analysis regarding separation of powers disputes requires understanding these more fundamental political dynamics between the branches. The political branches should negotiate the limits of their respective powers in ordinary politics, pressing their claims to legitimacy against each other through political argumentation and negotiation. These healthy interbranch dynamics are often obscured and undermined, however, through an attempt to legally demarcate interbranch boundaries based on a literal and formalistic reading of the constitutional text. Contrary to scholarly and popular understandings, the legal solution to interbranch politics actually pathologizes constitutional politics.
I employ several case studies (on recess appointments, the legislative veto, and executive agreements) to demonstrate how an overly legal conception of the Constitution’s assignment of powers can subvert healthy political conflict between the branches. In each of these case studies I show that an overly legalistic focus missed — and, consequently, subverted — key features of interbranch conflict that made it more difficult to actually evaluate the practice of politics.
Perverse Politics: Recess Appointments, Noel Canning, & the Limits of Law. Presidential Studies Quarterly (Summer 2018). [View Article Online]
Abstract: The Supreme Court’s intervention into the recess appointments controversy during the Obama administration demonstrates how an overly legalistic conception of the Constitution’s separation of powers can undermine constitutional politics. The formalistic line drawing by the Court, without attention to larger constitutional objectives, not only legitimized partisan obstruction of the Senate, but also prevented the President from ensuring the proper functioning of government based on the duly enacted laws of Congress. This article argues that political contestation between the branches — structured by legitimate constitutional claims — could have re-started a stalled deliberative process whereas legal resolution distorted the political dynamics at play, giving the illusion of an imperial presidency while providing legal cover for congressional abdication.