Notice & Comment

Winner of the ABA AdLaw Section’s 2023 Annual Scholarship Award: Nikolas Bowie & Daphna Renan’s The Separation-of-Powers Counterrevolution

Please join me in congratulating Professors Nikolas Bowie and Daphna Renan for winning the ABA Administrative Law and Regulatory Practice Section’s 2023 Annual Scholarship Award, which recognizes the best scholarly work published in the field of administrative law during 2022. Their article, The Separation-of-Powers Counterrevolution, 131 Yale L.J. 2020 (2022), presents an original insight and new theoretical construct about a current issue of administrative law, separation of powers.

Their work presents an original insight and new theoretical construct about a current issue of administrative law, separation of powers. It is persuasively argued and supported with relevant evidence and extensive research. It builds on prior existing work but does not significantly repeat or recite such work. The article is well written and tightly reasoned. Importantly, although it addresses an area traditionally considered within the constitutional law penumbra, the article’s particular separation of powers focus has broad implications for many administrative law issues as well. In short, the committee unanimously agreed that The Separation-of-Powers Counterrevolution easily exceeded our selection criteria and fit within the scope of the award parameters.

The authors claim that modern separation of powers is based on an historical misunderstanding of this doctrine. Modern lawyers presume that the U.S. Constitution imposes separation of powers limits that are judicially enforceable pursuant to whichever approach the courts want to apply (formalism or functionalism). But the belief that the courts were uniquely needed to enforce separation of powers only came about in 1926 in Myers v. United States, 272 U.S. 52 (1926), after centuries in which a profoundly different understanding of the doctrine was prominent. That different understanding — which the authors call the republican separation of powers — expected each institution of government to demand separation of powers limits as part of the political negotiation and compromise necessary to pass legislation. Thus, even after Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), in which the Supreme Court held that it had the power to determine the constitutionality of statutes, the Court spent the next century accepting Congress and the President’s judgment about what their relationship should be.

This republican view held sway until after reconstructionism and Professor William Howard Taft’s ascendancy to the Supreme Court. Taft believed that the Constitution included an objective and precise separation of powers doctrine that the public and president seemed incapable of enforcing; hence, the Court must step in. In Myers, the Court, for the first time limited Congress’s ability to structure the executive branch. Bowie and Renan believe that Taft’s approach is misguided. And in their excellent article, they explain why Congress and the President should decide whether a particular institutional arrangement is compatible with the Constitution’s separation of powers. The article presents separation of powers in an entirely new light; it provides a framework for the Supreme Court’s upcoming term, in which the legitimacy of administrative structures, such as dual for-cause removal provisions, are on the docket.

Our thanks to those of you who nominated articles and books for the award and to those who wrote such excellent scholarship this year. Once again, this was a robust year for excellent writing. The committee examined every article and book published during 2022. That scholarship was truly outstanding; hence, the committee had a challenging task in selecting just one winner.

The Section will honor Professors Nikolas Bowie & Daphna Renan’s accomplishment next spring.

Linda Jellum is a Professor of Law at the University of Idaho College of Law and chairs the ABA Administrative Law and Regulatory Practice Section’s Annual Scholarship Award Committee. The committee includes: William Araiza, Jack Beermann, Neal Devins, Emily Hammond, Nina Mendelson, Wendy Wagner, and Anne Kiefer, ex offico.

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