Unbundled powers

Virginia Law Review

Volumn 96, Issue 2, 2010, Pages 301-358

  Gersen, Jacob E ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77952031039     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (296)

1. The literature on separation of powers in the United States is expansive, but for summaries of portions of the field, see generally Gerhard Casper, Separating Power: Essays on the Founding Period (1997);
2. W.B. Gwyn, The Meaning of the Separation of Powers: An Analysis of the Doctrine from its Origin to the Adoption of the United States Constitution (1965);
3. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (1996);
4. M.J.C. Vile, Constitutionalism and the Separation of Powers (2d ed. 1998);
5. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311 (2006);
6. M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 Va. L. Rev. 1127 (2000).
7. For an overview of historical materials, see generally 1 The Founders' Constitution 311-354 (Philip B. Kurland & Ralph Lerner eds., 1987).
8. Baron de Montesquieu, The Spirit of Laws bk. XI, 185-86 (Legal Classics Library spec. ed. 1984) (1748).
9. William Blackstone, Commentaries on the Laws of England 149-150 (Univ. of Chicago Press 1979) (1765) ("The total union of them, we have seen, would be productive of tyranny; the total disjunction of them for the present, would in the end produce the same effects, by causing that union, against which it seems to provide.").
10. The Federalist No.51 (James Madison).
11. See, e.g., Gwyn, supra note 1, at 3-10.
12. See generally Woodrow Wilson, Congressional Government: A Study in American Politics 187-89 (Legal Classics Library spec. ed. 1993) (1885);
13. Bruce Ackerman, The New Separation of Powers, 113 Harv. L. Rev. 633, 643-87 (2000);
14. Thomas O. Sargentich, The Limits of the Parliamentary Critique of the Separation of Powers, 34 Wm. & Mary L. Rev. 679, 679-84 (1993);
15. see also Clinton v. New York, 524 U.S. 417, 450-52 (1998) (Kennedy, J., concurring);
16. Mistretta v. United States, 488 U.S. 361, 381 (1989);
17. Morrison v. Olson, 487 U.S. 654, 693-96 (1988);
18. Bowsher v. Synar, 478 U.S. 714, 721-27 (1986);
19. INS v. Chadha, 462 U.S. 919, 951-59 (1983);
20. Buckley v. Valeo, 424 U.S. 1, 120-24 (1976).
21. There are exceptions to this default, of course. Certain actions may only be taken by the executive, legislative, or judicial branch alone.
22. The same bundling phenomenon is evident in the parliamentary structure. See generally Walter Bagehot, The English Constitution (Paul Smith ed., Cambridge Univ. Press 2001) (1867) ;
23. Wilson, supra note 6, at 187-89.
24. For more recent discussions, see Giovanni Sartori, Comparative Constitutional Engineering: An Inquiry into Structures, Incentives and Outcomes 83-140 (2d ed. 1997);
25. Ackerman, supra note 6, at 653-57.
26. Semi-presidential regimes blend the explicit commitments further, providing for the election of a President and the selection of a Prime Minister by the legislature. See Maurice Duverger, A New Political System Model: Semi-Presidential Government, 8 Eur. J. Pol. Res. 165, 165 (1980).
27. Executive and legislative functions are combined, but parliament or the ruling coalition retains the authority to utilize those powers over the entire set of permitted policies.
28. The Federalist No. 51, at 349 (James Madison) (Jacob E. Cooke ed., 1961) ("A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.").
29. See, e.g., Clinton, 524 U.S. at 450 (Kennedy, J., concurring) ("Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.");
30. Loving v. United States, 517 U.S. 748, 757-758 (1996) ("By allocating specific powers and responsibilities to a branch fitted to the task, the Framers created a National Government that is both effective and accountable.... The clear assignment of power to a branch, furthermore, allows the citizen to know who may be called to answer for making, or not making, those delicate and necessary decisions essential to governance.").
31. This Article's main reference point is Madisonian separation, but parliamentary alternatives are mentioned in passing, particularly when the justifications for topical separation dovetail with the justifications for combining powers in the parliamentary scheme.
32. See Ackerman, supra note 6, at 664-66 (contrasting presidentialism with constrained parliamentarianism);
33. Alan Siaroff, Varieties of Parliamentarianism in the Advanced Industrial Democracies, 24 Int'l Pol. Sci. Rev. 445, 446-47 (2003) (identifying direct election as one of three definitive distinctions between parliamentary and presidential systems);
34. Alfred Stepan & Cindy Skach, Constitutional Frameworks and Democratic Consolidation: Parliamentarianism versus Presidentialism, 46 World Pol. 1, 3-4 (1993) (contrasting "pure parliamentarianism" with "pure presidentialism" and identifying the electoral mandate of the executive power as a critical component of a presidential system).
35. For analytic tractability, this Article avoids comparisons to constrained parliamentary and semi-presidential regimes.
36. For such comparisons, see Ackerman, supra note 6, at 642-88 (comparing presidentialism with constrained parliamentarianism);
37. Sartori, supra note 8, at 121-140 (comparing presidentialism with semipresidentialism).
38. See, e.g., Martin H. Redish, The Constitution as Political Structure 25-26 (1995);
39. Edward S. Corwin, The Passing of Dual Federalism, 36 Va. L. Rev. 1, 4 (1950).
40. See Humphrey's Ex'r v. United States, 295 U.S. 602, 629 (1935).
41. See generally Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 123, 172 (1994);
42. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 615-16 (1984).
43. See 38 Council of State Gov'ts, The Book of the States 169 (2006) [hereinafter Book of the States];
44. see also Christopher R. Berry & Jacob E. Gersen, The Unbundled Executive, 75 U. Chi. L. Rev. 1385, 1386 (2008);
45. William P. Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 Yale L.J. 2446, 2453-55 (2006) (discussing the interaction between elected Attorneys General and Governors).
46. Book of the States, supra note 14, at 169-174
47. See 1 U.S. Census Bureau, 2002 Census of Governments, at vii (2002) [hereinafter 2002 Census of Governments];
48. Christopher R. Berry, Imperfect Union: Representation and Taxation in Multilevel Governments 1 (2009).
49. See 2002 Census of Governments, supra note 16, at 14.
50. These institutions generate problems as well. For example, overlapping taxing authority may generate incentives to over-tax a local population.
51. See Berry, supra note 16, at 84-86.
52. Institutions responsible for a single policy may also be insufficiently attentive to the impact of their decisions on other government units. Finally, as discussed below, an increase in the number of political institutions that citizens must monitor can produce excessive coordination costs and monitoring costs, potentially resulting in minoritarian or ineffective policies.
53. The five-branch theory is associated with Sun Yat Sen and was first implemented in the late 1920s. It is found in the 1947 Republic of China Constitution that remains in force in Taiwan today. The two extra branches are for examinations and for "control," which is an audit and administrative supervision function. The control branch is itself elected and is tasked with supervising other government officials.
54. Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases 112 (2003).
55. Andrew Lintott, The Constitution of the Roman Republic 133-137 (1999).
56. See id. at 137-138 Cicero referred to related functions for minor magistrates as well in his discussion of the ideal republic.
57. Id.
58. See Ezra N. Suleiman, Presidentialism and Political Stability in France, in The Failure of Presidential Democracy 137, 139 (Juan J. Linz & Arturo Valenzuela eds., 1994).
59. See Timothy Besley & Stephen Coate, Elected versus Appointed Regulators: Theory and Evidence, 1 J. Eur. Econ. Ass'n 1176 (2003) [hereinafter Besley & Coate, Elected versus Appointed Regulators];
60. Timothy Besley & Stephen Coate, Issue Unbundling via Citizens' Initiatives, 3 Q.J. Pol. Sci. 379 (2008) (suggesting that issue bundling explains the relevance of direct democracy in a representative system where candidates must already compete for the right to control policy).
61. See Christopher R. Berry & Jacob E. Gersen, Fiscal Consequences of Electoral Institutions, 52 J.L. & Econ. 469, 481 (2009) [hereinafter Berry & Gersen, Fiscal Consequences];
62. Berry & Gersen, supra note 14, at 1386-1387
63. There are many intricacies ignored for the time being. For example, perhaps voters do not have well-defined preferences or view a large part of government action to be about the quality of the decisionmaking process rather than policy outputs, and so on. I begin, however, with a simplifying assumption that voters have well-specified preferences about policy on all dimensions and that accountability in government is desirable.
64. See Jane Mansbridge, Rethinking Representation, 97 Am. Pol. Sci. Rev. 515, 516-25 (2003) (developing models of representative democracy).
65. See generally Robert A. Dahl, Democracy and Its Critics (1989).
66. See Levinson & Pildes, supra note 1, at 2319; The Federalist No.51 (James Madison), No. 72 (Alexander Hamilton).
67. See, e.g., Torsten Persson & Guido Tabellini, Political Economics: Explaining Economic Policy (2000) (providing a survey and synthesis of contemporary literature on democratic policymaking).
68. See generally Angus Campbell et al., The American Voter (1960) (documenting widespread lack of information and opinions about politics);
69. see also William H. Riker, Liberalism Against Populism: A Confrontation Between the Theory of Democracy and the Theory of Social Choice 136 (1982) (explaining that there is "an unresolvable tension between logicality and fairness" that prevents discovery of a true majority preference through electoral voting mechanisms);
70. John R. Zaller, The Nature and Origins of Mass Opinion 311-13 (1992) (finding that public opinion is created by officials and elites rather than preexisting in voters).
71. Seminal contributions to the literature on agency problems in politics include Robert J. Barro, The Control of Politicians: An Economic Model, 14 Pub. Choice 19, 22-26 (1973) (explaining that, in the absence of electoral consequences, a politician will seek to maximize his own utility),
72. and John Ferejohn, Incumbent Performance and Electoral Control, 50 Pub. Choice 5, 5-9 (1986) (arguing that voters should pay more attention to actual performance than to campaign promises and presenting a model in which voters have an incentive to do so).
73. See R. Douglas Arnold, Can Inattentive Citizens Control Their Elected Representatives?, in Congress Reconsidered 401, 402-06 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 5th ed. 1993) (explaining that many citizens have outcome preferences but not policy preferences, and that it is difficult for legislators to know the preferences of their constituencies on many issues unless the preferences are particularly strong);
74. Anthony Downs, An Economic Theory of Democracy 219 (1957) (explaining that decision-makers must select only part of the total available information, biasing the information gathered);
75. Arthur Lupia & Mathew D. McCubbins, The Democratic Dilemma: Can Citizens Learn What They Need to Know? 79 (1998) (noting that one of the "central dilemmas of delegation" is that agents and principals often do not have common interests).
76. See generally Dennis C. Mueller, Public Choice III (2003).
77. See Thomas Romer & Howard Rosenthal, Political Resource Allocation, Controlled Agendas, and the Status Quo, 33 Pub. Choice 27, 27-28 (1978) ("When the setter has monopoly power, voters are forced to choose between the setter's proposal and the status quo or fall-back position."). So long as representatives propose a new policy that is far from voter preferences, but less far than the status quo ante, voters may not be able to obtain desired policy outcomes.
78. Jeffrey S. Banks & Rangarajan K. Sundaram, Optimal Retention in Agency Problems, 82 J. Econ. Theory 293, 294 (1998) (explaining that "the threat of dismissal... may itself be a powerful tool available to the principal");
79. see also Scott Ashworth, Reputational Dynamics and Political Careers, 21 J.L. Econ. & Org. 441 (2005);
80. Scott Ashworth & Ethan Bueno de Mesquita, Electoral Selection, Strategic Challenger Entry, and the Incumbency Advantage, 70 J. Pol. 1006 (2008);
81. Brandice Canes-Wrone, Michael C. Herron & Kenneth W. Shotts, Leadership and Pandering: A Theory of Executive Policymaking, 45 Am. J. Pol. Sci. 532 (2001).
82. James D. Fearon, Electoral Accountability and the Control of Politicians: Selecting Good Types versus Sanctioning Poor Performance, in Democracy, Accountability, and Representation 55, 82 (Adam Przeworski, Susan C. Stokes & Bernard Manin eds., 1999) (suggesting that, while elections serve both selection and sanctioning purposes, voters may be reasonable to focus more on using elections as a method of selecting good candidates rather than as a sanctioning mechanism);
83. Scott Ashworth & Ethan Bueno de Mesquita, Delivering the Goods: Legislative Particularism in Different Electoral and Institutional Settings, 68 J. Pol. 168, 168-69 (2006) (explaining that, all else being equal, voters prefer high-ability representatives);
84. Sanford C. Gordon, Gregory A. Huber & Dimitri Landa, Challenger Entry and Voter Learning, 101 Am. Pol. Sei. Rev. 303 (2007) (developing a model to explain how challenger entry can convey valuable information to voters about the relative merits of the candidates);
85. Gautam Gowrisankaran, Matthew F. Mitchell & Andrea Moro, Electoral Design and Voter Welfare from the US Senate: Evidence from a Dynamic Selection Model, 11 Rev. Econ. Dynamics 1, 2,15 (2008) (modeling voters as "identical dynamically optimizing agents" and finding that quality differences in candidates is one of two factors contributing to the incumbency advantage).
86. David Austen-Smith & Jeffrey Banks, Electoral Accountability and Incumbency, in Models of Strategic Choice in Politics 121, 122 (Peter C. Ordeshook ed., 1989);
87. Barro, supra note 30, at 26-32;
88. Ferejohn, supra note 30, at 22-23;
89. Torsten Persson, Gérard Roland & Guido Tabellini, Separation of Powers and Political Accountability, 112 Q.J. Econ. 1163, 1165-66 (1997);
90. Paul Seabright, Accountability and Decentralisation in Government: An Incomplete Contracts Model, 40 Eur. Econ. Rev. 61, 64-65 (1996).
91. Sartori, supra note 8, at 27-39;
92. Jide O. Nzelibe & Matthew C. Stephenson, Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design, 123 Harv. L. Rev. 1, 5-7 (2010);
93. Matthew C. Stephenson & Jide Nzelibe, Political Accountability Under Alternative Institutional Regimes 33 (Harvard John M. Olin Ctr. for Law, Econ., & Bus., Discussion Paper No. 615, 2009), available at http://ssrn.com/ astract-1152452.
94. See, e.g., Fearon, supra note 35, at 83 (noting that "voter's incentives to be interested and well informed about politics are far from strong").
95. Id. at 59 (defining a "good type" politician).
96. See generally Robert D. Cooter, The Strategic Constitution 158-60 (2000) (comparing the consequences for the agent when the principals exercise oversight unilaterally versus cooperatively). The logic of issue unbundling has been applied sporadically in other settings. This same theme is at play in the scattered assortment of justifications given for single-subject limitations in state constitutions, for instance, in Colorado and Florida.
97. Martha J. Dragich, State Constitutional Restrictions on Legislative Procedure: Rethinking the Analysis of Original Purpose, Single Subject, and Clear Title Challenges, 38 Harv. J. on Legis. 103, 114-16 (2001) (explaining'the purpose of single-subject limitations in state constitutions);
98. Michael D. Gilbert, Single Subject Rules and the Legislative Process, 67 U. Pitt. L. Rev. 803, 813-18 (2006) (setting forth the history of and principal justifications for the single-subject rule);
99. Robert D. Cooter & Michael D. Gilbert, Chaos, Direct Democracy, and the Single Subject Rule 5,11 (Berkeley Program in Law & Econ., Working Paper No. 15, 2006), available at http://escholarship.org/uc/item/9xm920bv (explaining that stronger single-subject rules "could improve direct democracy by preventing cycling and riders"). The singlesubject limitation is supposed to preclude logrolls in which policies favored only by a minority of politicians or voters are enacted together. The logic of unbundling, then, is general. In the single-subject context, logrolls could easily be welfare-enhancing so long as the value to the minority receiving benefits along each dimension is high enough. The point is merely that the idea of unbundling has been usefully applied in a handful of other legal and policy contexts.
100. Berry & Gersen, Fiscal Consequences, supra note 24, at 469-473
101. The unbundling intuition has also been used to explain one of the benefits of citizen initiatives. See John G. Matsusaka, Fiscal Effects of the Voter Initiative: Evidence from the Last 30 Years, 103 J. Pol. Econ. 587, 590 (1995) (explaining that the use of voter initiatives correlates to lower levels of state spending).
102. For an extension of the implications of the direct democracy argument for the executive branch, see John G. Matsusaka, Direct Democracy and the Executive Branch 23-24 (Apr. 2007) (unpublished manuscript, available at http://www-rcf.usc.edu/~matsusak/Papers /Matsusaka -DD-Executive-2007.pdf) (explaining that direct democracy changes the executive branch by allowing policy decisions on some issues to be made by citizens directly and by altering the institutional structure of the executive branch). By unbundling a single issue from a legislative logroll, whether budgetary or policy, voters are thought to be able to better ensure outcomes close to majoritarian preferences for the given policy dimension.
103. See id. at 24.
104. Berry & Gersen, supra note 14, at 1401-1421
105. For example, one paper provides empirical support for the issue unbundling argument by contrasting elected and appointed utility regulators. See Besley & Coate, Elected versus Appointed Regulators, supra note 23, at 1178-80. Using panel data for forty U.S. states, the authors find that elected regulators systematically enact more consumer-friendly policies than appointed regulators.
106. See id. at 1177-1178
107. Eric Maskin, Yingyi Qian & Chenggang Xu, Incentives, Information, and Organizational Form, 67 Rev. Econ. Stud. 359, 360 (2000).
108. See Alfred D. Chandler, Jr., Strategy and Structure: Chapters in the History of the Industrial Enterprise 2-3 (1962);
109. Oliver E. Williamson, Corporate Control and Business Behavior: An Inquiry into the Effects of Organization Form on Enterprise Behavior 113 (1970).
110. Maskin, Qian & Xu, supra note 45, at 360.
111. See id.
112. See id. at 363.
113. Williamson, supra note 46, at 117.
114. See Maskin, Qian & Xu, supra note 45, at 360.
115. Williamson, supra note 46, at 113-114 (expressing the difficulties of the U-form enterprise in terms of "indecomposability, incommensurability, nonoperational goal specification, and the confounding of strategic and operating decisions").
116. See generally Yingyi Qian, Gérard Roland & Chenggang Xu, Coordination and Experimentation in M-Form and U-Form Organizations, 114 J. Pol. Econ. 366 (2006).
117. Williamson, supra note 46, at 113-14.
118. The conventional account of the M-form is that it removes the burden of operational decisions and the need for coordination from top-level executives by delegating those decisions to more distinct divisions, "[e]ach ... having complete jurisdiction over manufacture, sales, and finance, subject to control from the central authority." Id. at 115
119. (quoting Donaldson Brown, Pricing Policy in Relation to Financial Control, 7 Mgmt. & Admin. 195 (1924)).
120. Qian, Roland & Xu, supra note 53, at 367-368
121. Id. at 367.
122. Id. at 369.
123. The M-form also generally outperforms the U-form structure in terms of innovation and experimentation because the M-form can experiment in a distinct division before adopting changes firm-wide. "[S]mall-scale experimentation in the Uform is always dominated by full-scale experimentation because the former creates complications in attribute matching." Id. at 370.
124. Suppose one wanted to see whether internal separation of functions facilitated government performance. In the current U.S. regime, that is all but impossible. Functions are combined or not, system-wide. In the unbundled structure, several different institutions exercise policy-making authority for one and only one policy domain. One branch could separate executive authority for that domain from legislative authority for that domain. Another branch could continue to operate with such powers combined. Experimentation of this sort would be imperfect because it would be impossible to compare environmental policy established using separation with environmental policy established not using separation. Nevertheless, at least some experimentation is possible without adopting system-wide changes. The U-form must innovate in total or not at all. Id. at 369.
125. Today this idea is mainly represented by the formalist school in separation of powers scholarship. See, e.g., Redish, supra note 12, at 99-134;
126. David P. Currie, The Distribution of Powers After Bowsher, 1986 Sup. Ct. Rev. 19, 40;
127. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1248 (1994).
128. For simplicity's sake, judicial authority is included with executive and legislative authority, but much of the theoretical argument applies with greatest force to legislative and executive authority.
129. See generally Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 Yale L.J. 2314 (2006) (explaining how internal separation of powers can check the overall authority of the executive branch);
130. M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. Pa. L. Rev. 603, 605-06 (2001) (arguing that existing diffusion of power within branches sufficiently checks excessive concentrations of authority).
131. See Strauss, supra note 13, at 581-583
132. -5 U.S.C. §554(d) (2006).
133. See generally 1 Richard J. Pierce, Jr., Administrative Law Treatise 681-82 (4th ed. 2002);
134. Kenneth Culp Davis, Separation of Functions in Administrative Agencies, 61 Harv. L. Rev. 612, 612-14 (1948).
135. See generally 2 Richard J. Pierce, Jr., Administrative Treatise 679 (4th ed. 2002);
136. Edward L. Rubin, Due Process and the Administrative State, 72 Cal. L. Rev. 1044, 1109 (1984).
137. See infra Section II.F.
138. See id.
139. If this alternative looks too radical, executive authority for a single policy domain could be parceled off, consistent with a separated and partially unbundled office.
140. See Berry & Gersen, supra note 14, at 1386 (arguing that "a partially unbundled executive is likely to perform better than the completely bundled executive structure attendant in the single executive regime").
141. See, e.g., G. Bingham Powell, Jr., Elections as Instruments of Democracy: Majoritarian and Proportional Visions 50-52 (2000);
142. Margit Tavits, Clarity of Responsibility and Corruption, 51 Am. J. Pol. Sci. 218, 219-21 (2007);
143. Ethan Bueno de Mesquita & Dimitri Landa, Transparency and Clarity of Responsibility 1-2 (Sept. 25, 2007) (unpublished manuscript, available at http://cas.uchicago.edu/workshops/cpoht/papers/ EBDM-f2007.pdf). The idea of institutional clarity has been a core part of the debate between presidentialists and parliamentarists for at least a century. It was at the root of the critiques of presidentialism.
144. See Bagehot, supra note 8, at 200-203
145. See Powell, supra note 67, at 50-52.
146. More recently, scholars have argued that other sub-institutional conditions affect this calculus as well, such as "majority/minority status of the government, party cohesion, opposition committee chairs and opposition control of upper chambers in systems with strong bicameralism." Timothy Hellwig & David Samuels, Electoral Accountability and the Variety of Democratic Regimes, 38 Brit. J. Pol. Sci. 65, 69 (2008);
147. see also José Antonio Cheibub & Adam Przeworski, Democracy, Elections, and Accountability for Economic Outcomes, in Democracy, Accountability, and Representation, supra note 35, at 222, 230.
148. See Hellwig & Samuels, supra note 68, at 68 (distinguishing "voters' ability to assign responsibility from their ability to use the vote to act on the basis of that assignment") (emphasis omitted); Thomas J. Rudolph, Who's Responsible for the Economy? The Formation and Consequences of Responsibility Attributions, 47 Am. J. Pol. Sci. 698 (2003) (examining voters' attribution of responsibility for the economy between the President and Congress).
149. Compare Persson, Roland & Tabellini, supra note 36, at 1166 (arguing that separation of powers between the legislature and executive improves accountability, but only when neither body can act unilaterally), with Stephenson & Nzelibe, supra note 37, at 3 (finding that, under certain circumstances, voters are better off if the executive retains the option of acting unilaterally because they can implement a more refined set of political incentives). Relevant institutional variables might include "separate executive and legislative elections, variation in the electoral cycle for executive and legislative elections, and the possibility of cohabitation in semi-presidential systems." Hellwig & Samuels, supra note 68, at 68. In pure presidential regimes, voters directly elect the executive and the legislature separately for fixed terms. Id. at 69;
150. see also Powell, supra note 67, at 57-58 (observing that, despite having a separate base of election, the chief executive cannot pass new legislation without negotiating with the opposition party in the legislature);
151. Juan J. Linz, The Perils of Presidentialism, 1 J. Democracy 51, 52 (1990) (comparing parliamentary and presidential regimes and concluding that parliamentarianism is more conducive to stable democracy). In semipresidential systems, the President is elected for a fixed term, but the legislature is not.
152. See Matthew Soberg Shugart & John M. Carey, Presidents and Assemblies: Constitutional Design and Electoral Dynamics 259 (1992); Hellwig & Samuels, supra note 68, at 69.
153. See generally Robert Elgie, The Politics of Semi-Presidentialism, inSemiPresidentialism in Europe 1 (Robert Elgie ed., 1999) (establishing a framework for studying the politics of semi-presidential regimes). Concurrent legislative and executive elections may also enhance incentive effects because both branches may be held accountable in any given election. Hellwig & Samuels, supra note 68, at 70;
154. David Samuels, Presidentialism and Accountability for the Economy in Comparative Perspective, 98 Am. Pol. Sci. Rev. 425, 427 (2004);
155. cf. Matthew Soberg Shugart, The Electoral Cycle and Institutional Sources of Divided Presidential Government, 89 Am. Pol. Sei. Rev. 327, 328 (1995) (finding that concurrent elections rarely result in divided government).
156. See Powell, supra note 67, at 51. In fact, studies on economic voting normally assume that voters are rational, have complete information, use all of this information when voting, and vote retrospectively.
157. See, e.g., Raymond M. Duch & Randolph T. Stevenson, The Economic Vote: How Political and Economic Institutions Condition Election Results 28-29 (2008);
158. Joshua A. Tucker, Regional Economic Voting: Russia, Poland, Hungary, Slovakia, and the Czech Republic, 1990-99, at 338-42 (2006);
159. Sam Wilkin, Brandon Haller & Helmut Norpoth, From Argentina to Zambia: a WorldWide Test of Economic Voting, 16 Electoral Stud. 301, 302-03 (1997).
160. See generally Gary J. Miller, Managerial Dilemmas: The Political Economy of Hierarchy (1993).
161. See generally Bengt Holmstrom, Moral Hazard in Teams, 13 Bell J. Econ. 324 (1982).
162. The study of team production occupies an enormous body of literature, and conclusions about moral hazard and adverse selection depend critically on settings and assumptions. The idea in the text, and alluded to throughout, is one of the possible problems associated with such a structure. For a general, albeit technical, overview,
163. see Patrick Bolton & Mathias Dewatripont, Contract Theory (2005).
164. See generally Vile, supra note 1;
165. Candace H. Beckett, Essay, Separation of Powers and Federalism: Their Impact on Individual Liberty and the Functioning of Our Government, 29 Wm. & Mary L. Rev. 635, 640 (1988);
166. Rebecca L. Brown, Accountability, Liberty, and the Constitution, 98 Colum. L. Rev. 531, 535 (1998) (discussing the link between separation of powers and protection of liberty).
167. The Federalist No. 47, at 326 (James Madison) (Jacob E. Cooke ed., 1961).
168. Id. (quoting Montesquieu, supra note 2).
169. See generally Casper, supra note 1, at 9-10.
170. See Magill, supra note 1, at 1191-94;
171. Thomas O. Sargentich, The Contemporary Debate About Legislative-Executive Separation of Powers, 72 Cornell L. Rev. 430, 449-454 (1987).
172. See generally Separation of Powers-Does it Still Work? (Robert A. Goldwin & Art Kaufman eds., 1986).
173. See, e.g., Magill, supra note 60, at 603-606
174. See Rakové, supra note 1, at 282 ("Federalist 51 does not so much explain how these ambitions will work as assume that differences in election and tenure among the branches will foster the desired attachment...."); Magill, supra note 1, at 1128-1132
175. See Rakove, supra note 1, at 282; see also Levinson & Pildes, supra note 1, at 2317.
176. This line of attack was explicitly addressed by Madison in The Federalist No. 47, and these ideas have been replicated many times over in the commentary.
177. See The Federalist No. 47, at 323 (James Madison) (Jacob E. Cooke ed., 1961) ("One of the principal objections inculcated by the more respectable adversaries to the constitution, is its supposed violation of the political maxim, that the legislative, executive and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty.").
178. Levinson & Pildes, supra note 1, at 2317-2319
179. Id. at 2319.
180. Another gloss on the same underlying ideas would be that there are agency problems between branch interests and the officials that administer policy within a branch. Sometimes these problems will be slight; other times, severe.
181. Ackerman, supra note 6, at 689.
182. -531 U.S. 457 (2001).
183. See, e.g., Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097 (2004) (arguing that exclusive delegation is superior to the nondelegation doctrine);
184. Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721, 1723 (2002) (arguing that there is no constitutional delegation rule because "[a] statutory grant of authority to the executive isn't a transfer of legislative power, but an exercise of legislative power") (emphasis omitted).
185. American Trucking, 531 U.S. at 473-474
186. Id. at 475 (internal citations omitted);
187. see also Loving v. United States, 517 U.S. 748, 772-73 (1996) (upholding the delegation to the President of authority to define aggravating factors for murder cases tried in military court);
188. United States v. Mazurie, 419 U.S. 544, 556-57 (1975) (upholding the delegation to tribal authorities of power to regulate alcohol sales on reservations).
189. See, e.g., Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting) ("The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power.").
190. See U.S. Const, art. I, §7;
191. see also William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 67-68 (3d ed. 2001).
192. For a general discussion of legislative enactment costs, see Matthew C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 Yale L.J. 2 (2008).
193. See U.S. Const, art. I, §7;
194. See, e.g., William N. Eskridge & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992) (providing a positive model of bicameralism and presentment);
195. Saul Levmore, Bicameralism: When Are Two Decisions Better than One?, 12 Int'l Rev. L. & Econ. 145 (1992) (providing a positive account of bicameralism).
196. Levinson & Pildes, supra note 1, at 2338;
197. see, e.g., Brown, supra note 75, at 570;
198. Steven G. Calabresi, The Virtues of Presidential Government: Why Professor Ackerman is Wrong to Prefer the German to the U.S. Constitution, 18 Const. Comment. 51, 56 (2001);
199. Jonathan T. Molot, Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power over Statutory Interpretation, 96 Nw. U. L. Rev. 1239, 1246 (2002).
200. See Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. Chi. L. Rev. 361, 402-410 (2004) (discussing justifications for supermajority and submajority voting rules for the legislature that are specified throughout the Constitution).
201. See Jacob E. Gersen & Adrian Vermeule, Chevron as a Voting Rule, 116 Yale L.J. 676, 684-88 (2007) (discussing tradeoffs between voting rules and other mecha- nisms). See generally Adrian Vermeule, Mechanisms of Democracy: Institutional Design Writ Small (2007).
202. See Jacob E. Gersen & Eric A. Posner, Timing Rules and Legal Institutions, 121 Harv. L. Rev. 543, 574-577 (2007) (presenting a framework for analyzing timing rules and contrasting with supermajority voting rules).
203. Id. at 577.
204. See generally Jacob E. Gersen, Temporary Legislation, 74 U. Chi. L. Rev. 247, 250 n.7 (2007). The idea of temporary factions is featured prominently in The Federalist Papers.
205. For example, Madison argues in The Federalist No.10 that the republican form of government is a partial shield against the willingness of citizens to sacrifice justice on the basis of temporary or partial views. The Federalist No. 10, at 56-57 (James Madison) (Jacob E. Cooke ed., 1961).
206. Similarly, in The Federalist No. 27, Hamilton draws a parallel between factions and "temporary views." Speaking of representatives, Hamilton notes that they will be less apt to be tainted by the spirit of faction, and more out of the reach of those occasional ill humors or temporary prejudices and propensities, which in smaller societies frequently contaminate the public councils, beget injustice and oppression of a part of the community, and engender schemes, which though they gratify a momentary inclination or desire, terminate in general distress, dissatisfaction and disgust. The Federalist No. 27, at 172 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). Hamilton's concluding remarks in The Federalist No. 85 echo the negative vision of temporary views and temporary factions: "No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country or to his posterity, an improper election of the part he is to act." The Federalist No. 85, at 590 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
207. See generally Redish, supra note 12, at 102-105 (discussing the transition from theories of mixed government to separation of powers);
208. see also George Lawson, An Examination of the Political Part of Mr. Hobbs his Leviathan (1657);
209. Vile, supra note 1, at 23.
210. See Redish, supra note 12, at 103.
211. See U.S. Const., art. I, §7.
212. Id.
213. See Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L. Rev. 1217, 1218 (2006).
214. See id. at 1221.
215. See Levinson & Pildes, supra note 1, at 2324-2325
216. Vermeule, supra note 98.
217. See Morris Fiorina, Divided Government 6-7 (2d ed. 1996) (noting that the U.S. government has been divided for roughly forty percent of the time between 1832 and 1992);
218. see also Levinson & Pildes, supra note 1, at 2330-2347 (discussing the implications of unified and divided government).
219. Cf. Gersen & Vermeule, supra note 98 (discussing parallel dynamics in the context of voting rules and doctrinal norms).
220. But see Matthew C. Stephenson, The Costs of Voting Rule Chevron: A Comment on Gersen and Vermeule's Proposal, 116 Yale L.J. Pocket Part 238 (2007), available at http://thepocketpart.org/2007/01/25/ stephenson.html.
221. The Federalist No. 37, at 233 (James Madison) (Jacob E. Cooke ed., 1961).
222. The Federalist No. 70, at 471 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
223. See Levinson & Pildes, supra note 1, at 2325-2326
224. See generally Wilson, supra note 6, at 186-187
225. (Dec. 4,1787), James Wilson, Remarks at the Pennsylvania Ratifying Convention (Dec. 4,1787), in 3 The Founders' Constitution 501 (Philip B. Kurland & Ralph Lerner eds., 1987).
226. Fearon, supra note 35, at 82-83.
227. Levinson & Pildes, supra note 1, at 2343 ("But of course it is a different type of accountability that they have in mind. The existence of checks and balances between rivalrous branches, each with an incentive to monitor and prevent the other's misbehavior, might be regarded as a systemic form of accountability in its own right.");
228. see also Timothy Besley, Principled Agents? The Political Economy of Good Government 98 (2006);
229. Gwyn, supra note 1, at 16;
230. Sargentich, supra note 6, at 718.
231. See generally David Epstein & Sharyn O'Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making Under Separate Powers (1999) (developing and testing a theory of variation in delegation to agencies);
232. D. Roderick Kiewiet & Mathew D. McCubbins, The Logic of Delegation: Congressional Parties and the Appropriations Process (1991) (exploring the history and theory of delegation and delegation mechanisms);
233. Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va. L. Rev. 431, 439 (1989) (discussing how agencies can "shift... policy outcome[s] away from the legislative intent").
234. See Philippe Aghion & Jean Tirole, Formal and Real Authority in Organizations, 105 J. Pol. Econ. 1, 17-18 (1997) (analyzing authority delegated to agencies as a function of information distribution);
235. Kathleen Bawn, Political Control Versus Expertise: Congressional Choices About Administrative Procedures, 89 Am. Pol. Sci. Rev. 62, 62-63 (1995) (analyzing the tradeoff between political control and agency expertise);
236. Jonathan Bendor & Adam Meirowitz, Spatial Models of Delegation, 98 Am. Pol. Sci. Rev. 293, 301 (2004) (extending delegation models to consider costs of information gathering).
237. See generally Sean Gailmard, Discretion Rather than Rules: Choice of Instruments to Control Bureaucratic Policy Making, 17 Pol. Analysis 25 (2009) (comparing "menu laws" (rules) with "action restrictions" (discretion) as tools of control in delegation);
238. Matthew C. Stephenson, Bureaucratic Decision Costs and Endogenous Agency Expertise, 23 J.L. Econ. & Org. 469 (2007) (analyzing the impact of decision costs on the development of agency expertise).
239. Cf. Murray J. Horn, The Political Economy of Public Administration: Institutional Choice in the Public Sector 192-93 (1995);
240. Miller, supra note 72, at 235-238
241. Members of teachers unions are up to seven times more likely to participate in school board elections than the average registered voter. See Terry M. Moe, Political Control and the Power of the Agent, 22 J.L. Econ. & Org. 1, 22 (2006).
242. See Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541, 638-39 (1994);
243. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 101 (1994).
244. See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2339-2340 (2001).
245. See, e.g., Ricardo Alonso, Wouter Dessein & Niko Matouschek, When Does Coordination Require Centralization?, 98 Am. Econ. Rev. 145, 145-148 (2008) (surveying contexts in which coordination of agents can be achieved without centralized control).
246. Id. at 147;
247. see also Masahiko Aoki, Horizontal vs. Vertical Information Structure of the Firm, 76 Am. Econ. Rev. 971, 973 (1986);
248. Patrick Bolton & Joseph Farrell, Decentralization, Duplication, and Delay, 98 J. Pol. Econ. 803, 820-22 (1990);
249. Luis Garicano, Hierarchies and the Organization of Knowledge in Production, 108 J. Pol. Econ. 874, 897-98 (2000).
250. See generally Dilip Mookherjee, Decentralization, Hierarchies, and Incentives: A Mechanism Design Perspective, 44 J. Econ. Literature 367, 379-81 (2006).
251. See generally Deliberative Democracy (John Elster ed., 1998) (discussing the strengths and weaknesses of deliberative democracy);
252. Cass R. Sunstein, Interest Groups in American Public Law, 38 Stan. L. Rev. 29, 45-46 (1985) (explaining the belief that deliberation achieves better outcomes).
253. Cf. Bruce Ackerman, Essay, The Emergency Constitution, 113 Yale L.J. 1029, 1041-42 (2004) (discussing emergencies and constitutionalism);
254. Eric A. Posner & Adrian Vermeule, Accommodating Emergencies, 56 Stan. L. Rev. 605, 635-42 (2003) (discussing same);
255. Eric A. Posner & Adrian Vermeule, Emergencies and Democratic Failure, 92 Va. L. Rev. 1091, 1145-46 (2006) (discussing same).
256. Ackerman, supra note 6, at 697, 728.
257. See Alonso, Dessein & Matouschek, supra note 126, at 146-147
258. See generally The Failure of Presidential Democracy, supra note 22;
259. Jonathan Zasloff, The Tyranny of Madison, 44 UCLA L. Rev. 795, 810-812 (1997).
260. Ackerman, supra note 6, at 650-652
261. The parliamentary alternative is said to produce more desirable intermediate level legislation for two reasons. First, coalitions do not inevitably face a quick second election, with the accompanying risks of losing control of one branch. Because the timing of elections is not pre-set in the Westminster system, there is less pressure to underreach with symbolic legislation that appeals to voters but is not in the long-term interest of the country. Second, there is no incentive to create de facto entrenchment because the executive cannot veto changes by a future coalition. In the presidential regime, when the legislature is lost to the opposing party, the President can block efforts to undo the old united government policy. This might produce too much quick legislation that can be changed subsequently only by a supermajority of the legislature.
262. Id. at 651-653
263. Id. at 652-653
264. Some of these statements should be taken with a grain of salt, as the implications differ depending on electoral rules like proportional representation or first-past-thepost.
265. See Terry M. Moe & Michael Caldwell, The Institutional Foundations of Democratic Government: A Comparison of Presidential and Parliamentary Systems, 150 J. Institutional & Theoretical Econ. 171, 172 (1994) (arguing that the professionalization of a bureaucracy is endogenously determined as a function of presidential and parliamentary regime features).
266. See, e.g., Isaac Unah, The Courts of International Trade: Judicial Specialization, Expertise, and Bureaucratic Policy-Making 172-73 (1998);
267. Christopher Zorn, Book Review, 9 L. & Pol. Book Rev. 127 (1999) (reviewing The Courts of International Trade: Judicial Specialization, Expertise, and Bureaucratic Policy-Making (1998) and discussing tradeoffs).
268. See Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1517 (1991) ("Unanimity among constitutional scholars is all but unheard of. Perhaps when achieved it should be celebrated. But one point on which the literature has spoken virtually in unison is no cause for celebration: The Supreme Court's treatment of the constitutional separation of powers is an incoherent muddle.");
269. Laura S. Fitzgerald, Cadenced Power: The Kinetic Constitution, 46 Duke L.J. 679, 689 (1997) ("The separation of powers puzzle appears to have stumped the Supreme Court. In a series of decisions over the last half-century, and particularly in the last twenty-five years, the Court has veered between two separation of powers doctrines that cannot easily be reconciled.");
270. William B. Gwyn, The Indeterminacy of the Separation of Powers and the Federal Courts, 57 Geo. Wash. L. Rev. 474 (1989) (explaining that judicial confidence in the precision of the Constitution regarding separation of powers is unjustified).
271. See generally Magill, supra note 1, at 1129 ("The debate is well-developed: It includes two competing schools of thought, formalism and functionalism, and the predictable bickering back and forth between adherents to each school").
272. See, e.g., Strauss, supra note 13, at 577-578
273. Gary Lawson, Territorial Governments and the Limits of Formalism, 78 Cal. L. Rev. 853, 858 (1990) ("The separation of powers principle is violated whenever the categorizations of the exercised power and the exercising institution do not match and the Constitution does not specifically permit such blending.").
274. Magill, supra note 1, at 1142-43;
275. see also Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum. L. Rev. 452, 477-78 (1989);
276. Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 Sup. Ct. Rev. 225, 231;
277. Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions-A Foolish Inconsistency?, 72 Cornell L. Rev. 488, 492 (1987);
278. Strauss, supra note 13, at 578.
279. Redish, supra note 12, at 125.
280. See, e.g., Morrison v. Olson, 487 U.S. 654, 693-696 (1988).
281. See Casper, supra note 1, at 8-12.
282. Many of the most prominent recent separation of powers cases, like Bowsher v. Synar, 478 U.S. 714 (1986), and
283. INS v. Chadha, 462 U.S. 919 (1983), involve issues of exactly this sort. Violations of separation of powers principles tend to occur with the consent of two branches rather than unilateral incursion by one.
284. Magill, supra note 1, at 1139-1140
285. See Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725,1740-1741 (1996).
286. Lawson, supra note 58, at 1238 n.45;
287. see also Steven G. Calabresi, The Vesting Clauses as Power Grants, 88 Nw. U. L. Rev. 1377, 1390 & n.47 (1994).
288. See generally Magill, supra note 1, at 1142 & n.50 (discussing the views of Lawson and Calabresi).
289. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,125-26 (2000);
290. Miss. Power & Light Co. v. Mississippi, 487 U.S. 354, 371-74 (1988);
291. United States v. Riverside Bayview Homes, Inc. 474 U.S. 121, 123 (1985);
292. Massachusetts v. EPA, 415 F.3d 50, 67 (D.C. Cir. 2005), rev'd and remanded, 549 U.S. 497 (2007);
293. United Transp. Union v. Surface Transp. Bd., 183 F.3d 606, 612-13 (7th Cir. 1999);
294. Alaska v. Babbitt, 72 F.3d 698, 700 (9th Cir. 1995).
295. See generally Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 Sup. Ct. Rev. 201, 211-216 (discussing justifications for giving deference to agency determinations of their own jurisdiction).
296. Id. at 223-224