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John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1940 (2011).

Composer Arnold Schoenberg famously once quipped that “the middle way is the one that surely does not lead to Rome.”  The idea behind this thought, I gather, is that intellectual compromise does not lead to the truth.  John Manning’s recently published article, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1940 (2011), proves Schoenberg’s principle wrong, at least with regard to separation of powers.  In this article, Manning, the Bruce Bromley Professor of Law at Harvard Law School, persuasively demonstrates that neither extreme in current debates about separation of powers is correct, and that a true understanding of separation of powers in the United States requires a more nuanced view of the subject than either extreme is willing to undertake.  In my view, Manning’s article is the best published American law review article about separation of powers.  It states a coherent theory of separation of powers clearly and elegantly, and it explains, just as clearly and elegantly, exactly why separation of powers extremists on both sides are wrong.  The only problem I have with the article is that at the time I first read it in draft, I was working on my own separation of powers article, and Manning stole, improved and expanded upon much of my thunder.

There is too much of value in this article to capture in a brief review, so I focus on two aspects, namely Manning’s disagreement with the extremes in separation of powers and the middle way that Manning charts, based on his view that separation of powers in the United States embodies a constitutional compromise.  Along the way, I explain what Manning means by “ordinary interpretation” and how that differs from the interpretive methods employed by separation of powers extremists on both sides.

Manning’s article confronts and refutes the two extremes we find today in separation of powers analysis.  On one side is the formalist insistence on strict separation of powers doctrine that reads each of the Constitutions three Vesting Clauses as assigning a defined sphere of governmental power to a particular branch and applies a broad “strict separation” principle when a particular procedural or structural provision does not apply.  This methodology is usually associated with expansive views of the President’s power to execute the law free from congressionally imposed restrictions on appointment, removal and direction of federal officials and is exemplified by Justice Scalia’s dissent in Morrison v. Olson and my colleague Gary Lawson’s view, published in an important article written together with Patricia Granger, that the word “proper” in the Necessary and Proper Clause imports strict separation norms into the Constitution.

On the other side lies the functionalist approach that eschews strict application of structural constitutional limits in favor of a doctrine designed to “ensure that Congress has respected a broad background purpose to establish and maintain a rough balance or creative tension among the branches.”  Ironically, the functionalists also place primary reliance on the Necessary and Proper Clause, which they read to grant Congress wide ranging authority to rearrange government institutions and reallocate power in pursuit of legitimate federal goals.

The heart of Manning’s critique of separation of powers extremism is his demonstration that both formalism and functionalism depend on overarching theories of separation of powers that are not actually embodied in the Constitution.  This is where the concept of “ordinary interpretation” enters the picture.  As Manning explains, in recent decades, the Supreme Court has shied away from broad purpose-based statutory interpretation methodologies.  This is based on the recognition that statutes are the product of compromises that make it unrealistic to assume that the legislature as a whole would favor non-textual applications that advance a court’s view of the statute’s underlying purposes.  Manning imports this understanding into the realm of constitutional separation of powers principles.  As Manning explains:

the intricate detail within the constitutional structure in fact reflects the fruits of quite particular compromises over how to divide and structure the various powers.  No overarching theory of separation of powers can explain the document’s many elaborately specified procedures. (P. 1973)

Manning supports this view by pointing out that, contrary to the practice in most state constitutions, the Framers chose not to include a general separation of powers clause in the Constitution.  In Manning’s view, this is consistent with the way the Framers thought about it—separation of powers under the United States Constitution is the result of faithful application of the document’s numerous procedural and structural provisions and not based on an overarching theory.  The Framers did not conceive of separation of powers in a more absolutist way because, as Manning explains, their design involved a careful compromise between separation and checks and balances.

What about the extremists’ reliance on the Necessary and Proper Clause?  Manning answers both arguments the same way—reading the Necessary and Proper Clause to either require or rule out strict separation assumes that the Framers hid an “elephant in a mouse hole,” concealing a fundamental constitutional principle in obscure language.

Manning’s critique of the extremists foreshadows the middle way that he charts for separation of powers analysis under the U.S. Constitution.  The first principle of separation of powers, with which I wholly agree, is that the Constitution’s highly specific structural and procedural provisions ought to be honored and enforced.  Those are the easy cases.  The hard cases are those that arise outside the purview of any particular clause where resolution has significant ramifications for the distribution of power within the government.  The best example of this is removal of executive officials.  The strict separationists derive, from the Necessary and Proper Clause and the Vesting Clause of Article II, an overarching separation of powers principle that the President should have unlimited power to remove all officials involved in the execution of the law.  Manning doesn’t see it that way but he doesn’t rule out some limits on Congress’s power to restrict removal even though there is no specific constitutional clause that addresses the matter.  The solution, says Manning, should be arrived at through a process of ordinary interpretation, deriving principles from the particular constitutional provisions that grant and shape the relative powers of Congress and the President, rather than by applying an overarching theory of separation of powers.

One great virtue of Manning’s portrayal of separation of powers is that it is much closer to the Supreme Court’s jurisprudence than either of the extremes.  Rarely, if ever, does the Supreme Court act in accordance with an overarching theory of separation of powers that requires either strict separation or pure functionalism.  Rather, separation of powers law under the United States Constitution involves relatively strict application of the Constitution’s procedural and structural provisions (not including the Vesting Clauses), and when no such clause applies, as Manning explains, the preferred decision methodology is to draw structural inferences via a careful consideration of the relationship “between the Vesting Clauses and the more precise clauses that, with them, create the constitutional structure.”  This is “ordinary interpretation.”

I heartily recommend this article to anyone interested in separation of powers or administrative law more generally.  While the middle way may not lead to Rome, it does lead to a better understanding of the structure of government in Washington, D.C., as demonstrated in this excellent article by John Manning.

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Cite as: Jack Beermann, Separation of Powers and the Middle Way, JOTWELL (November 11, 2011) (reviewing John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1940 (2011)),