The Revolution That Wasn't

I. INTRODUCTION A principal legacy of the Rehnquist Court is its revitalization of doctrines associated with federalism. That jurisprudence has many critics and many defenders. They disagree about how to describe what has happened, the importance of what has happened, and the wisdom of what has happened. But they all agree that something has happened. There has been genuine innovation in this area of constitutional law. Not so with separation of powers doctrine. Commentators do not perceive important shifts in the doctrine. Nor should they-the reasoning and results in the Rehnquist Court cases are of a piece with what came before. Lack of "revolution" (using the term loosely) was not for lack of opportunity. The Supreme Court had many opportunities to revise its doctrines. And, from the perspective that the Court has invoked in explaining many of its federalism cases, there is much-very much, in fact-that is not right about the structure of the federal government and the constitutional rules that permit that structure. This paper asks why there has been no "revolution" in separation of powers jurisprudence during the Rehnquist Court. Many would expect doctrinal developments in federalism and separation of powers to track one another. Investigating why they have not done so reveals, in fact, that the internal and external factors that influence the developments in the two areas are quite different. II. READING THE REHNQUIST` COURT A. A Federalism Revolution The Rehnquist Court has worked important changes in the doctrines relating to federalism. For the first time since the post-New Deal period, the Court has invalidated some acts of Congress as beyond the scope of the commerce power, making clear in the process that there are some judicially enforceable outer limits on the scope of that power.1 It has also invalidated some acts of Congress on Tenth2 and Eleventh Amendment3 grounds. And it has held invalid some exercises of Congress's power under Section 5 of the Fourteenth Amendment.4 While their long-range effects are not entirely clear, taken together the Court's rulings plainly restrict the scope of federal power. B. Separation of Powers The Rehnquist Court had a steady stream of separation of powers cases,5 and it becomes a flood if one includes Article III standing cases.6 Several of the cases were high-profile and politically salient. The Court validated the Independent Counsel Act7 and the creation of the U.S. Sentencing Commission;8 it invalidated the line-item veto9 and rebuffed President Clinton's executive-power based claim that he was entitled to a stay in a civil suit arising out of actions he took before he was President.10 There were low-profile cases as well, some of them consequential. The Court invalidated a statute extending the statute of limitations for securities fraud cases;" it rejected a challenge to a statute on Origination Clause grounds;12 it sustained delegations of authority from Congress to the executive13 and the judiciary;14 and it evaluated several Appointments Clause cases.15 In contrast to the Rehnquist Court's federalism decisions, these cases had no notable impact on separation of powers law. This claim is difficult to prove. For instance, perhaps some years hence the line-item veto case will be the centerpiece of an invigorated separation of powers jurisprudence. Oddly enough, that invigorated doctrine could go in two different directions. If the dissenters' views of what was at stake in the case-namely, that the case was about the permissible scope of delegations to the executive16-the invalidation of the veto could conceivably later be read to restrict the sort of authority Congress can delegate to the executive. Or the case might be read as a pro-legislative power opinion in the sense that the functional complaint about the veto was that it diminished legislative power relative to the President. The President's power was enhanced, so went the argument, because the line-item veto undermined Congress's ability to get what it wanted by bundling proposals together and forcing the President to an all-or-nothing choice on a Congressionally-designed package. …