Laurence Tribe: A Multidimensional Reappraisal of Separation of Powers Doctrine
In the Yale Law Journal Forum, Laurence H. Tribe: Transcending the Youngstown Triptych: A Multidimensional Reappraisal of Separation of Powers Doctrine (126 Yale L.J. F. 86 (2016)). From the introduction:
The time is ripe for a reappraisal of the separation of powers as the organizing principle of our federal government. Most of the relevant doctrinal architecture has been constructed over the past seven decades. Perhaps because of Justice Robert H. Jackson’s incomparable brilliance as a writer, the two-dimensional landscape famously described in his concurring opinion condemning President Truman’s seizure of the U.S. steel industry has dominated discourse about the interaction of the three federal branches. Charting presidential conduct on the vertical axis of a map whose horizontal axis measures Congress’s position ranging from approval to disapproval gave Jackson an elegantly simple and memorable way to classify presidential actions from the most strongly defensible to the most constitutionally vulnerable.
The resulting classification scheme became a convenient triptych describing the geography of a “flatland” constitutional universe—one constructed in a two-dimensional space, carved into three simple zones. Missing from that triptych has been an analytical guide for navigating what is in truth the multidimensional universe of relevant constitutional values and relationships. This Essay sets out a proposed approach to developing such a guide.
And in conclusion:
I do not doubt that Justice Jackson was right as a descriptive matter when he noted the fluid and highly contextual ebb and flow of executive power—but I do believe he erred as a normative matter when he focused his gaze downward to search for legal answers solely in this shifting tide. If instead he had followed the impulse that guided him in West Virginia Board of Education v. Barnette—if he had looked up at the firmament that he had invoked in that decision less than a decade before Youngstown—he could have seen how “the fixed star[s] in our constitutional constellation” might help mark the lawful shape of presidential power.
(Via Michael Dorf at Dorf on Law, who has extensive insightful comments).