Balance‐of‐Powers Arguments, the Structural Constitution, and the Problem of Executive “Underenforcement”

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. Possible theories of the balance of powers are examined and all are rejected as unworkable and normatively implausible. Judges and scholars should abandon the balance‐of‐powers metaphor and instead address directly whether bureaucratic innovation is likely to improve policy outcomes. Additionally, implications for the underenforcement controversy are discussed.

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