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The separation of powers among the federal legislative, executive and judicial branches is as old as the U.S. Constitution itself. And yet, courts continue to struggle with disputes among the branches.
In a new article, Shalev Roisman, associate professor of law and distinguished early career scholar at the University of Arizona James E. Rogers College of Law, proposes a balancing test that he says addresses the weaknesses of the current dominant approaches.
In “Balancing Interests in the Separation of Powers,” forthcoming in the University of Chicago Law Review, Shalev proposes a two-part interest balancing test. The first part asks whether the action of one branch interferes with the powers of another. If so, the second part asks whether the interest served by the interference is sufficiently strong to be justified. Shalev’s interest balancing test is very similar to the Constitutional levels of scrutiny that have long been applied in the context of individual rights.
In formulating the interest balancing test, Shalev drew upon his experience at the U.S. Department of Justice Office of Legal Counsel (OLC), where he advised the president and executive branch agencies. “I did a lot of work on separation-of-powers disputes,” he recalled. “And in doing that, I noticed that when Congress and the president both have power to act and come into conflict, there was no real coherent way that we had to resolve those conflicts.”
Incidentally, Shalev’s experience in OLC aligned with my own experience there – a few years before him. (I was in OLC from 1985-1987; Shalev was there from 2015-2017.)
“People have struggled with this question for a long time of how to resolve disputes between Congress and the president and it’s actually quite hard to say something new about it,” Shalev said. “I am proud of the paper in that it is contributing to the debate by providing an alternative method.”
For the full story, see here.
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