Balancing Interests in the Separation of Powers

Shalev Gad Roisman

Associate Professor of Law and Distinguished Early Career Scholar, University of Ari-zona James E. Rogers College of Law. The author served in the Office of Legal Counsel in the U.S. Department of Justice from 2015 to 2017.

Thank you to Payvand Ahdout, Zohra Ahmed, Haley Anderson, Jane Bambauer, David Barron, Curtis Bradley, Christine Chabot, Josh Chafetz, Andrew Coan, Blake Emerson, Dan Epps, Jack Goldsmith, Vicki Jackson, Xiaoqian Hu, Alyssa King, Joanna Langille, Eunice Lee, Daryl Levinson, Asaf Lubin, Joshua Macey, Toni Massaro, Fatma Marouf, Shefali Milczarek-Desai, Lindsay Nash, Diana Newmark, Daphna Renan, Noah Rosenblum, Alan Rozenshtein, Jonathan Shaub, Glen Staszewski, Stephanie Stern, Ilan Wurman, and participants in the University of Arizona Law Fall Faculty Workshop, the AALS New Voices in Administrative Law Session, the ACS Junior Scholar Public Law Workshop, and the Power in the Administrative State Workshop. Thank you to Vinny Venkat, Jacob Marsh, Bella Stoutenberg, and Molly Case for terrific research assistance and to the editors of the University of Chicago Law Review for superb editorial assistance. The views expressed are the author’s own and are based entirely on publicly available materials.

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There are two conventional methods for resolving separation of powers disputes: formalism and functionalism. Although both approaches have been around for decades, neither has proven capable of resolving the difficult separation of powers disputes that actually arise today. Such disputes—including over statutory removal restrictions, recognition, conduct of diplomacy, and executive privilege—do not involve instances where one branch is trying to exercise the other’s exclusive power, as formalism posits. Nor is it clear how one could measure, or evaluate the effect of any one dispute on, the general balance of powers between the branches that functionalism seeks to maintain. Instead, difficult separation of powers questions involve separation of powers infringements—instances where both branches have power to act, but one branch’s exercise of power infringes on or interferes with the other’s exercise of power.

This Article proposes a method built to resolve precisely such cases: interest balancing. Accepting that both branches might have power to act over a matter, interest balancing asks whether one branch’s exercise of power has infringed upon the other’s and, if so, whether such infringement is justified by a sufficiently strong interest. This mode of analysis might sound familiar, as it is the standard method of addressing infringement on constitutional entitlements in the other half of constitutional law—individual rights. When someone alleges an individual rights violation, we do not ask whether the government or individual has “exclusive power” over the matter, nor do we resolve the dispute by asking how it might affect the “general balance of power” between the individual and the government. Instead, we ask whether a right has been infringed and, if so, whether such infringement can be justified by a sufficiently strong governmental interest.

Despite the long history of interest balancing in individual rights cases, scholars have failed to appreciate its utility in resolving separation of powers disputes. Yet, there is precedent for its use in the separation of powers. It was introduced in Nixon v. Administrator of General Services, continues to be the standard method of resolving executive privilege disputes, and has been used, albeit never routinely, by executive branch actors and courts of appeals in various other domains. Notwithstanding this precedent, neither courts, nor scholars, have recognized interest balancing’s potential as a general framework for resolving separation of powers disputes. This Article identifies interest balancing as a coherent method of separation of powers analysis that is both conceptually and practically well suited to address the separation of powers disputes that actually arise today. It explains how interest balancing is distinct from the prevailing approaches—including formalism, functionalism, Justice Robert Jackson’s Category Three analysis in Youngstown Sheet & Tube Co. v. Sawyer, and recent proposals for categorical deference to statutes—and then evaluates its strengths and weaknesses relative to such approaches. Ultimately, it concludes that interest balancing is the approach best suited to resolve the difficult cases that actually arise—those of separation of powers infringements. The Article then theoretically develops how interest balancing can be operationalized and improved going forward.

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