Tuesday, July 19, 2016

Transcending the Youngstown Triptych: A Multidimensional Reappraisal of Separation of Powers Doctrine

Larry Tribe

In a new essay in The Yale Law Journal Forum, I discuss separation-of-powers.  The abstract is below.  
"The time is ripe for a reappraisal of the separation of powers. The two-dimensional landscape famously described in Justice Robert H. Jackson’s concurring opinion in Youngstown 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 Justice 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 a multidimensional universe of relevant constitutional values and relationships. This Essay proposes an approach to developing such a guide: by considering two additional dimensions relevant to the separation of powers—respect for federalism and concern for individual rights—courts can better discern the lawful shape of presidential power."

Older Posts
Newer Posts