Separation of Powers and the Horizontal Force of Precedent

Abstract

The power of the courts and Congress to regulate precedential force has been the subject of recent judicial and scholarly foment. Most provocatively, Professor Michael Stokes Paulsen has argued that the Constitution's silence on this subject leaves room for Congress to strip targeted Supreme Court opinions of any precedential force. Other scholars and some judges have argued that stare decisis enjoys constitutional status, which limits the power of either Congress or the courts to destroy precedential force.

This article contends, contra Paulsen, that stare decisis has constitutional import but that his conclusion that Congress can eliminate the horizontal force of precedent is nonetheless at least partially correct. The key to reconciling these inconsistent-sounding propositions is to recognize and harmonize two competing separation-of-powers principles: (1) the rule of law forbids officials from seizing more power than the law grants them; and (2) Congress, the lawmaker, has considerable discretion to delegate discretionary power to the executive and judicial branches. The first of these principles suggests the conclusion that courts cannot constitutionally eliminate their obligation, deeply rooted in common law, to show measured (though not absolute) deference to their own precedents. The second, however, suggests that Congress possesses power to release the courts from this constraint. In short, separation of powers permits Congress to grant a power that the courts may not legally seize.

Keywords: Precedent, Stare Decisis, Separation-of-Powers, Nonpublication Rules, Noncitation Rules, Nonprecedents