Author ORCID Identifier

0000-0003-4748-501X

Document Type

Article

Publication Date

2021

Keywords

Separation of powers, Congress, Marginalized groups, Particularized costs, Appropriation of funds

Abstract

This Article calls for the incorporation of antisubordination into separation-ofpowers analysis. Scholars analyzing separation-of-powers tools—laws and norms that divide power among government actors—consider a long list of values ranging from protecting liberty to promoting efficiency. Absent from this list are questions of equity: questions of racism, sexism, and classism. This Article problematizes this omission and begins to rectify it. For the first time, this Article applies critical-race and feminist theorists’ subordination question—are marginalized groups disproportionately burdened?—to three important separation-of-powers tools: legislative appropriations, executive conditions, and constitutional entrenchment. In doing so, it reveals that each tool entails subordination by creating generalized benefits at the expense of marginalized groups. It illustrates this skewed distribution through novel case studies tracing harm to Native peoples to the use of appropriations to empower Congress, harm to residents of Puerto Rico to the use of executive conditions to empower the President, and disparate coronavirus harms to Black communities to the use of nonentrenchment to empower the future and disempower the “dead hand” of the past.

The Article’s descriptive insight that separation-of-powers tools can and do entail subordination motivates its call for the incorporation of antisubordination into both institutional and doctrinal separation-of-powers analysis. The antisubordination movement’s rights-focused approach has stagnated. The separation of powers offers a desirable, upstream means through which to pursue the goal of antisubordination by shifting attention beyond the courts and toward other political actors. Moreover, considering antisubordination in separation-of-powers analysis has historical precedent, is consistent with the aspiration for “neutral principles,” and advances already established separation-of-powers values such as liberty and accountability.

Incorporating antisubordination alters institutional analysis, doctrinal analysis, and the agenda of separation-of-powers theory. The subordination question (“who pays?”) should be as familiar to institutional analysis of separation-of-powers questions as is the legal-process question (“who decides?”). This question might be used to interrogate particular separation-of-powers tools, categories of such tools, or overarching doctrinal and conceptual approaches. Antisubordination should also change doctrinal analysis, where courts should at the very least include antisubordination among the structural values they consider in resolving ambiguities, weighing interpretive tools, and conceptualizing constitutional questions. In this context, antisubordination’s greatest impact may be as a counterweight to courts’ use of historical gloss. Finally, antisubordination requires a new, creative agenda for separation-of-powers theory that focuses not on evaluating existing arrangements or the relative power of the branches, but instead on developing alternative arrangements that maintain the balance of power without imposing skewed costs. The Article illustrates these interventions with novel prescriptions for ongoing legal controversies about the debt ceiling, foreign affairs, legislative standing, and government shutdowns.

First Page

78

Publication Title

Yale Law Journal

Download

Share

COinS