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Tuesday, May 28, 2024

A Requiem for "Workable Government"

One of the famous passages in Justice Robert Jackson's Youngstown concurrence is about the functional nature of separation of powers.

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

The Court first quoted from this passage in United States v. Nixon and did so many time afterwards. Since 1996, though, the Court has not cited or quoted these lines favorably. In Selia Law, the Court said that the arguments being rejected drew inspiration from Jackson's view.

Of course, this makes sense given the formalist turn in separation of powers law. One point that I will discuss in the Conclusion of my book on the concurrence is whether the entire opinion will fade out over the next few decades.

Posted by Gerard Magliocca on May 28, 2024 at 03:53 PM | Permalink


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