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From Exclusivity to Concurrence

By Mark D. Rosen. Full text here.

In arguing that President Washington could not interpret a mutual defense treaty that potentially required America to join battle with France—but that only Congress could interpret the treaty on account of its power to declare war—James Madison reasoned that “the same specific function or act, cannot possibly belong to the two departments and be separately exercisable by each. . . . A concurrent authority in two independent departments, to perform the same function with respect to the same thing, would be awkward in practice, as it is unnatural in theory.”

Madison’s intuition—that power that the Constitution specifically allocates to one institution cannot be exercised by another—features prominently in such diverse fields as separation of powers, vertical federalism, horizontal federalism, and the relationship between judge and jury.

Yet probably nowhere else has Madison’s view of the basic architecture of American constitutionalism proven to be so wrong. This Article shows that concurrence is today widespread. For example, although the Constitution gives the President the “Power to grant Reprieves and Pardons,” Congress has the power to grant amnesties that are functionally equivalent to pardons. Similarly, while the Constitution specifies only one mechanism (treaty) through which the federal government can create international agreements, most contemporary international obligations have been created by congressional executive agreements, which do not require a supermajority of senators. And administrative agencies create regulations that are functionally identical to Congress’s statutes.

Because the Constitution spends most of its time allocating power to specific institutions, the question of whether the power allocated is exclusively held by a single institution, or instead is concurrently held by two or more, is pervasive. This Article analyzes examples of concurrence that are found in multiple contexts, uncovering patterns that can lead to a more informed choice between exclusivity and concurrence in the future.

Among the Article’s findings are that virtually all contemporary examples of concurrence amount to renunciations of the Court’s original view that the power in question was held exclusively by only one institution. Because courts tend to start with exclusivist assumptions, concurrence typically has been initiated by nonjudicial institutions, and has been judicially approved only after becoming entrenched. An array of pragmatic considerations has fueled the shift from exclusivity to concurrence: concurrence has been turned to when the most obviously tasked institution has failed to act, to conscript another institution’s complementary competencies and thereby improve the governmental activity, to achieve administrative efficiencies; to solve problems unanticipated by the Founders, and to meet emergencies.

One of concurrence’s drawbacks is that it opens the door to conflicts among the institutions with overlapping powers. The Article argues that this is a cost of concurrence that properly is weighed against concurrence’s benefits, but not a reason to categorically reject concurrence. The Article also explains why concurrence is not per se unconstitutional under principles of expressio unius est exclusio alterius or enumerated powers, and shows that important Framers welcomed concurrence and that the Constitution’s text almost never forecloses it.

The Article ultimately concludes that the choice between exclusivity and concurrence is appropriately made on a context-by-context basis on pragmatic grounds, but that experiences from other contexts should be looked to because they can be illuminating.