Eric Posner: Balance-of-Powers Arguments and the Structural Constitution
Eric A. Posner (University of Chicago Law School) has posted Balance-of-Powers Arguments and the Structural Constitution on SSRN. Here is the abstract:
Balance-of-powers arguments are ubiquitous in judicial opinions and academic articles that address separation-of-powers disputes over the president’s removal authority, power to disregard statutes, authority to conduct foreign wars, and much else. However, the concept of the balance of powers has never received a satisfactory theoretical treatment. This essay examines possible theories of the balance of powers and rejects them all as unworkable and normatively questionable. Judges and scholars should abandon the balance-of-powers metaphor and instead address directly whether bureaucratic innovation is likely to improve policy outcomes.
(Via Larry Solum at Legal Theory Blog).