Formalismvs. functionalism

t Formalism– separation of powersdoctrine is governed by relatively clear rules that demarcate separate spheres of governmental authority.

n Formalismis defended on originalist grounds.

n Some formalists argued that SC has good reason to decide cases in formalist way so as to ensure against various problems presented by modern legislative initiatives, even if formalism is not defensible historically.

t Functionalism– advocates more fluid approach that prohibits an “aggrandizement of power” or “undue mingling of functions,” but that allows some overlap and is more receptive to changing boundaries so as to deal with changing situations.

n Some functionalists use originalism to criticize formalism (shown by Flaherty’s argument below).

n Other functionalists concede that formalism is defensible on originalist grounds, but defend functionalism as best way to make sense of constitutional structure under modern circumstances, in which president’s power threatens to undermine constitutional structure.

t Flaherty– originalist defense for flexible approach to separation of powers: Judiciary should not be shielding presidency (most powerful office in nation) from congressional regulation.

n Founders intended for separation of powersto fulfill several goals: balance among branches, accountability to electorate, energetic/efficient government.

n Balance cuts against unitary presidency, but accountability and energy cut in favor of unitary presidency.

n Examination of founders’ intentions shows we do not need to consider balance and accountability/energy as mutually exclusive goals.

i. Founders took balance very seriously. Thus, given rise of administrative state, congressional regulation of executive branch is more crucial than ever before.

ii. Contrary to usual assumptions, Founders sought to tame, not further empower, those divisions of government claiming special responsiveness to electorate. Thus, need for congressional regulation is necessary precisely because of modern president’s claim to electoral accountability.

t Werhan. Proposal for reconciling formalism and functionalism

n Separation of powersconcept is sufficiently flexible to allow government to make a showing that its departure from the norm is justified and therefore legitimate.

n Government action violating separation norm would survive judicial reviewonly if it were (1) explicitly authorized by USC, or (2) narrowly tailored to achieve an important, overriding government interest.

Date: 2015-01-02; view: 837