The Vertical Separation of Powers

Standard understandings of the separation of powers begin with the concept of function. Professor Nourse argues that function alone cannot predict important changes in structural incentives and thus serves as a poor proxy for assessing real risks to governmental structure. To illustrate this point, the Article returns to proposals considered at the Constitutional Convention and considers difficult contemporary cases such as Morrison v. Olson, Clinton v. Jones, and the Supreme Court's more recent federalism decisions. In each instance, function appears to steer us wrong because it fails to understand separation of powers questions as ones of structural incentive and political relationship.

In order to move away from function as the sole proxy for structural risk, the Article suggests a "vertical" approach toward separation of powers questions. That approach reconceives departmental power less as the power to perform a set of tasks fitting a particular constitutional description (e. g., adjudication, execution, legislation) than as a set of constitutionally created political relationships between the people and those who govern them. Put another way, the separation of powers becomes less a search for transcendental descriptions of the departments than a means of considering how shifting structure affects liberty-how structural incentives may incline governmental actors to act toward the people in ways that risk the electoral powers of both majorities and minorities.