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Monday, March 27, 2017

Separation of Powers From Across the Street

I have been writing about decentralizing federal power for a few years now, both as a tool of comparative constitutional design and as a topic of American constitutional design expanding how federal power would be exercised across the parts of the federal government and across American constitutional history.  With Congress now debating related ideas, and Ross Douthat mentioning them briefly in The New York Times, I wanted to start to preview parts of my article and book on these issues.  My plan is to work through what decentralizing federal power means for many different debates in constitutional design, starting with the separation of powers.  My question is simple: can power ever truly be separated if it is across the street?

In the economic geography literature, as David Schleicher has so compellingly demonstrated, the scholarship largely focuses on co-location as inducing a form of economic convergence.  Because of a variety of mechanisms, living and working near others makes us learn from them and otherwise become more like them.  In the context of constitutional design, though, convergence can be complicated.  Do we want convergence for every part of the federal government? Is it important that the place of federal power sometimes be singular as opposed to plural? Is the way to make Washington work to create more of them?

James Madison wrote in Federalist 51 of the need for “opposite and rival interests” to control the different branches of the federal government.  Only if and when these rivalrous interests control different branches would these branches ensure that “[a]mbition . . . be made to counteract ambition.” Ensuring that branches are selected differently and granted different powers are two different design tools that constitutional law uses to ensure these rivalrous branches.  These selection effects and treatment effects, though, can sometimes underpower separation if the branches are located across the street (or across town) from one another.  The same metropolitan area will narrow the types of people who come to work in these branches, and the types of incentives they face once working in these branches.

A long but lost part of our constitutional history has involved leaders realizing this design complication, and trying to respond—even if rarely so.  In drafting the Residence Act of 1790, many debated whether the goal should be to federal officials only seasonally in Washington, and whether Washington itself could function as a decentralized location for power because it was an underdeveloped location.  Congressional leaders have over history attempted to ensure that members spend a certain portion of their office budgets on staff employment and activities in their district or in their state.  The creation of the regional reserve banks within the Federal Reserve was motivated in part by a desire to have these banks exist outside of the narrowing effects of Washington. As Jessica Bulman-Pozen, Yishai Blank and Issachar Rosen-Zvi have recently written, federal administrative law has tried to find ways to create a regulatory unit known as the “federal region” that exists between the units of the state and the federal.  The debate surrounding the expansion of the lower federal courts preceding the Evarts Act of 1891 likewise featured reasons—and rules—related to distributing federal judicial power outside of Washington.

In later posts, I will expand on what limiting the “difference of powers” at the federal level means for the “multiplicity of constitutional values” that Aziz Huq and Jon Michaels have noted are behind the separation of powers.  I will also more to say about what decentralizing federal power means for other constitutional design goals.  Finally, I will have a few things to say about considering this idea when the idea has been appropriated in Donald Trump’s Washington by those without the same underlying motivations—or the same goals to consider this idea incrementally rather than radically—that led me to start writing about this.

Posted by David Fontana on March 27, 2017 at 06:11 AM | Permalink

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