Notice & Comment

Marshall on Pozen on Separation of Powers and Self-Help Countermeasures (AdLaw Bridge Series)

In my first AdLaw Bridge Series post, I reviewed David Pozen‘s Self-Help and the Separation of Powers, which was just published in the Yale Law Journal. As I mentioned in that post, the article’s practical (and political) implications should not be overlooked. Professor Pozen is careful to note, repeatedly, that the purpose of the paper is not to defend the current administration’s invocation of self-help countermeasures. The paper nevertheless provides a helpful reframing of executive discretion from going-it-alone tactics to countermeasures justified by the other branches’ failure to fulfill their duties. (Whether and which countermeasures are constitutional, I’ll leave for another day.) The current administration would be smart to reframe the discourse along the lines Professor Pozen suggests.

In the Yale Law Journal Forum, William Marshall has published a great response, entitled Warning!: Self-Help and the Presidency, that discusses further the potentially dangerous practical and political (as well as constitutional) implications of Professor Pozen’s theory. Here’s a snippet from the introduction (footnotes omitted):

David Pozen would make the job of an Obama Administration lawyer a whole lot easier. In Self-Help and the Separation of Powers (“Self-Help”), Pozen argues that, when Congress acts wrongly, the President may permissibly take actions that are outside her normal constitutional bounds. This means, according to Pozen, that the President, in addition to possessing her other powers, may enjoy the remedy of self-help as a legitimate response to congressional obstreperousness. An Administration lawyer could therefore, under Pozen’s theory, defend a President’s otherwise “extra-legal” actions as a permissible response to an asserted “failure of congressional lawmaking” without having to point to any direct constitutional allocation of authority to the executive branch.
When I first read an early draft of Self-Help, I told the author that I believed it to be one of the most brilliant and innovative pieces of law review scholarship that I had ever encountered. I also told him that I thought it was possibly one of the most dangerous. The last thing American constitutional law needs is another rationale that could be used to justify an expansive exercise of executive branch power, particularly when that exercise is based on little more than a President’s own conclusion that Congress has somehow engaged in constitutional wrongdoing when it aggressively seeks to frustrate her agenda.
The final version of Self-Help confirmed my earlier convictions. The Article is wonderfully accomplished and is a testament to Pozen’s skills as a legal scholar. At the same time, however, the thesis advanced in Self-Helpremains alarming. The modern presidency has already (and long since) ascended to the role of the most dangerous branch. Allocating to the presidency the additional tool of self-help along with its already formidable arsenal would only exacerbate the considerable imbalance among the branches that already exists.
This essay is an effort to respond to some of the concerns raised by Pozen’s remarkable thesis. Part I questions the central predicate offered by Pozen as justification for a President’s self-help powers—that congressional obstruction is equivalent to constitutional malfeasance. Part II raises my central policy objection: even if one accepts Pozen’s assertion that a particular Congress’s efforts to obstruct a President’s agenda can, in certain circumstances, be construed as constitutionally improper, the self-help remedy is too extensive an addition to the President’s already formidable array of constitutional authority. Part II.A explains why, although self-help may nominally be available to both the President and the Congress, the President is in the far better position to take effective advantage of the remedy. Part II.B sets forth some of the specific dangers inherent in investing the President with the self-help power. Part III then examines the self-help thesis from a different angle, addressing some of the jurisprudential concerns present in its application to interbranch conflict. Part IV concludes by briefly addressing the broader issue of whether the constitutional law of separation of powers should be altered to deal with the current political dysfunction.

Professor Marshall’s 22-page essay is definitely worth a full read, and no doubt we will see many more responses to Professor Pozen’s self-help theory as the article makes such an important contribution to separation of powers theory.


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