AN INDUCTIVE UNDERSTANDING OF SEPARATION OF POWERS

Separation of powers is one of the least understood doctrines in US law and politics. Underlying a great deal of separation of powers analysis is the conventional view that the US Constitution requires a strict separation between the three branches of government and that efforts within one branch to influence or control the exercise of another branch's powers are illegitimate and should be rejected whenever possible. Although its simplicity might be appealing, this image of strict separation is inconsistent with the Framers' understanding of separation of powers and with the law as developed by the Supreme Court in the face of the explosive growth of the regulatory state over more than a century. Every so often, a decision or series of decisions by the Supreme Court raises the specter of movement toward a strict view of separation of powers, but ultimately any such movement sputters to a halt, and in retrospect it usually turns out that the appearance of movement was more in the nature of wishful thinking than actual change. Here, Beerman describes the current separation of powers doctrine as embodied in precedent and common understandings of the practice of separation of powers in the government of the US.