October 25, 2009
Metzger on Internal and External Separation of Powers
Professor Gillian Metzger (Columbia) recently posted her thoughtful piece, The Interdependent Relationship Between Internal and External Separation of Powers, on SSRN. The article explores the relationships between internal and external checks on the executive and starts an important conversation on how separation of powers doctrine might reinforce (not destabilize) internal checks. The argument is a novel addition to the literature on executive constraints and separation of powers, and it couldn't come at a more propitious time--just over a month before the Court will hear arguments in Free Enterprise Fund v. Public Co. Accounting Oversight Board, challenging Sarbanes-Oxley's new PCAOB, a body within the SEC, on Appointments Clause and separation of powers grounds. I highly recommend this.
Metzger sets her argument up against the Bush administration politicization of executive decisionmaking. A possible lesson from the Bush administration, she writes, is that internal constraints--checks on the executive within the executive branch itself, such as independent agencies, inspectors general, and the civil service system itself--were ineffective checks on executive overreaching. Gillian writes that that lesson, however, is "unduly pessimistic" and focuses too narrowly on internal constraints.
Instead, Metzger argues that we need more attention on connections between internal constraints and external constraints (those constraints on executive power imposed from the other branches) and separation of powers doctrine--how separation of powers considerations need not operate only to destabilize internal constraints, but how they might also operate to reinforce internal constraints. Metzger:
Notably, however, these [Appointments Clause] decisions generally treat internal constraints as given and focus their attention on determining if the specific constraints at issue represent constitutional violations because they intrude too far on presidential power. Less common, particularly in recent decisions, is judicial recognition of the potential constitutional benefits from internal controls, either in terms of guarding against aggrandized power from within or in reinforcing the ability of the other branches to do so.
Example? Metzger offers Boumediene v. Bush, an admittedly rare and special case:
[In Boumediene] the Court used its constitutional scrutiny to encourage the executive branch to adopt more robust internal constraints. Although it seems fair to say this was an intentional move on the Court's part, at a minimum Boumediene demonstrates that the Court's lack of attention to the separation of powers benefits of internal constraints is not universal. Yet Boumediene's express linkage of separation of powers doctrine and internal constraints remains a rarity, and reflects in part specific features of habeas jurisprudence, which has long required absence of adequate alternatives before a habeas claim will lie.
What might this look like outside of the special case of Boumediene? Metzger shows there are several options:
Courts could, as in Boumediene, identify a fairly specific set of internal constraints as necessary to avoid a constitutional violation. But they could also serve a reinforcing role simply by taking such constraints into account . . . as a factor that may support a finding of constitutionality or greater deference. They could even continue to rely primarily on administrative law doctrine, both as a means of reinforcing internal checks and more directly policing against undue agency politicization, and simply acknowledge more openly the constitutional separation of powers function that administrative law is then performing.
The Court could take this bait in Free Enterprise Fund and hold that the new PCAOB is supported by separation of powers considerations, not destabilized by them. Metzger and a colleague filed an amicus brief (pp. 24-28) in the case in which they gently push this argument.
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