A Non-Originalist Separation of Powers

Since the end of World War II, some of the Supreme Court’s most important constitutional law cases have focused on the appropriate relationship between and among the three branches of the federal government. Although the phrase “separation of powers” is not in the constitutional text, the Supreme Court has played a pivotal role in ensuring that the framers’ desire for a government of checks and balances is fulfilled. In most of these disputes, however, the Constitution’s text and original meaning played, at most, a marginal role in the Court’s decisions. Given the academic focus with “originalism,” as well as President Trump’s promise to only appoint originalist judges, the absence of textual and originalist analysis in the Court’s separation of powers decisions suggests that originalism, at least in this area of the law, is more illusion than substance. This article suggests that the Court is right to focus on factors other than text and original meaning when deciding cases implicating the allocation of powers among the three branches of the federal government. The executive branch has changed so dramatically since the founding that there is little wisdom from 1787 that can help judges resolve most separation of powers problems today.