A Critical Analysis of Separation-of-Powers Functionalism

44 Pages Posted: 8 Nov 2022 Last revised: 24 Feb 2024

See all articles by Bijal Shah

Bijal Shah

Boston College Law School

Date Written: November 3, 2022

Abstract

The separation of powers, and the narrow formalist/functionalist tension on which this framework rests, is in need of moral grounding. A critical legal perspective could enable administrative law and separation-of-powers scholars to better articulate overlooked problems, stakes, and possibilities, as a theoretical, normative, and prescriptive matter. This essay begins the work of integrating the insights of critical theory into the separation of powers. This essay is not, however, a critique of formalism, in the vein of conventional critical legal studies. Rather, this essay centers on functionalism. By employing a critical—not formalist—perspective, this essay questions separation of-powers functionalism’s capacity both to further its own conventional purposes, and to support administration that benefits people. This essay also considers how separation-of-powers functionalism may lead to underexamined moments of branch aggrandizement.

First, this essay brings into focus a critique of separation-of-powers functionalism and identifies how functionalist approaches have been exploited by each branch of government to ends that are problematic both for functionalism’s own aims and for achieving administration that does not harm vulnerable people. More specifically, it illustrates three, perhaps counterintuitive, outcomes of functionalism: the use of the functionalist “major questions doctrine” by the judiciary to arrogate its own authority to concerning ends; the way in which functional congressional oversight of agencies may reduce democratic policymaking to the detriment of marginalized communities; and problematic administration resulting from the biased and expansive exercise of agency power.

Second, this essay considers how to respond to these concerning applications of functionalism. solution is neither the absolutist formalist call to dismantle the administrative state, nor reflexive functionalism. Rather, disentrenching concerning practices by making modest shifts to the relationships between the constitutional branches and agencies could inspire the development of an internally consistent functionalism, and perhaps even a functionalism that furthers justice. In this vein, this essay suggests reframing the major questions doctrine to emphasize judicial restraint, diversifying and democratizing legislative oversight, and both shifting administrative institutions and revitalizing judicial review of discretion to reduce and excise bias.

Suggested Citation

Shah, Bijal, A Critical Analysis of Separation-of-Powers Functionalism (November 3, 2022). Ohio State Law Journal (Forthcoming), Boston College Law School Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=4267302

Bijal Shah (Contact Author)

Boston College Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

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