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Nonexclusive Functions and Separation of Powers Law

By Ilan Wurman. Full Text. 

The Constitution’s text, structure, and history suggest that some governmental functions strictly and exclusively appertain to a particular branch, and to the exercise of a single vested power. Many governmental functions, however, are nonexclusive: their exercise has some combination of legislative, executive, and judicial characteristics and, as a result, can be exercised by different branches exercising different vested powers. This Article proposes to reorient our thinking around exclusive and nonexclusive governmental functions, and demonstrates how doing so clarifies many existing doctrines and debates in administrative and separation of powers law.

This approach differs in important respects from standard functionalist and formalist accounts. If functionalism is concerned with identifying the “core” functions of the three branches, the reorientation proposed here would require identifying “exclusive” functions. The central question, however, is not “balance” or “aggrandizement” but whether an exercise of governmental power falls exclusively within a single vested power as a matter of text, structure, and history. And this approach rejects the proposition—often associated with formalism—that government functions must always be categorized as either legislative, executive, or judicial, and that there is little functional overlap among the three vested powers. To be sure, the Founders paid little attention to the functional overlap among the vested powers of government; but the idea of functionally overlapping government powers accurately reflects the nature of those powers and follows from the Constitution’s text, structure, and history.

Although some scholars and judges have hinted at similar ideas, functional overlap has not been their focus, and conflation of powers and functions continues to plague judicial opinions and the scholarly literature. This Article seeks to reorient separation of powers law systematically toward exclusive and nonexclusive functions. Doing so clarifies many doctrinal puzzles, from the nature of legislative rules and judicial deference to “quasi” powers and nondelegation. Other insights also emerge, for example, with respect to James Madison’s suggestion that the Comptroller of the Treasury was neither executive nor judicial but “rather distinct from both, though it partakes of each,” and to the recently contested question of whether the Supreme Court can hear direct appeals from military courts.