The Interdependent Relationship Between Internal and External Separation of Powers

Abstract

This Essay, prepared as part of the Emory Law Journal’s 2009 Thrower Symposium on Executive Power, addresses internal separation of powers constraints on the executive branch. After briefly describing the form such constraints take and assessing their constitutional legitimacy, the Essay takes up the question of whether internal constraints can be an effective restraint on presidential aggrandizement. I argue that although such constraints can have some purchase, focusing solely on internal measures frames the inquiry too narrowly and ignores the important interdependent relationship between internal and external checks on executive power. The Essay concludes with an assessment of one such internal-external connection, the link between internal executive branch constraints and external legal doctrine, and suggests that separation of powers analysis should be more expressly used to reinforce such internal constraints.