Public Law Foreword 130 Harv. L. Rev. 31

Looking for Power in Public Law



The full text of the Foreword may be found by clicking the PDF link below.

Constitutionalism is the project of creating, allocating, and constraining state power. Doing any of these things successfully requires constitutional designers and interpreters to determine how power should best be distributed among political actors and institutions, how much power these actors and institutions in fact possess, and how power shifts in response to legal and political arrangements and interventions. Yet, for all the attention that issues relating to power have received in U.S. constitutional law, courts and theorists seem surprisingly at sea about basic questions of where power is located in the American political system, how it should be distributed or redistributed, and even what “power” means or which kinds of power should matter for different purposes.

To begin, the focus of structural constitutional law — encompassing separation of powers, presidential power, federalism, and the administrative state — has been on how power is distributed between and among government institutions. Constitutional law polices the power of the presidency, Congress, administrative agencies, and the national government as a whole (vis-à-vis the states) with the aim of preventing these institutional actors from “aggrandizing” themselves at the expense of their “rivals,” or “concentrating” too much power and thereby upsetting the constitutional “balance” or “equilibrium.” From the Founding to the present, the central organizing principle of the structural constitution has been that power must be divided, diffused, or balanced to prevent — as Madison put it, in language that has become a maxim of structural constitutional law — the “accumulation of all powers . . . in the same hands,” which “may justly be pronounced the very definition of tyranny.”

Managing the structural constitution in this way depends on a clear understanding of where power in government is located and how it shifts in response to changing circumstances. Yet that understanding has been conspicuously elusive. Consider debates about presidential power. Many see the President as increasingly “imperial,” helming “the most dangerous branch,” unimpeded by the separation of powers, and even posing an existential threat to constitutional democracy. Others see the presidency not as imperial but “imperiled,” “manifestly underpowered,” “enervated [and] splintered,” subservient to “boundless . . . Congressional power,” and indeed so “constitutional[ly] and practical[ly] weak[]” as to pose — once again — “a threat to American democracy.” At the same time, still others perceive the President to be tightly constrained by “plebiscitary” responsiveness to public opinion and popular demands, or by a “synopticon” of legal and political “watchers” who monitor and check his every action. It is unclear, however, whether these constraints are supposed to alleviate “tyrannophobic” fears of unchecked presidential power or “strengthen” a “bigger and bigger presidency” — or, somehow, both.

Similar disagreements or confusions abound in other areas of structural constitutional law. In separation of powers cases, the Supreme Court has constructed a jurisprudence that “focuses on the danger of one branch’s aggrandizing its power at the expense of another branch,” and of Congress in particular doing so. Yet the Court has also taken notice of the fact that the post–New Deal “growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life,” is a product of Congress’s apparent propensity to “yield up its own powers” by delegating policymaking authority to the executive — giving rise to competing constitutional concerns about Congress’s “[a]bdication of responsibility.” In the “standard view” of American federalism, state and local power have been inexorably subsumed by an increasingly dominant national government. That view may or may not be compatible with an emerging school of thought emphasizing the power states wield in their role as agents of the national government — the “power of the servant,” as opposed to the “power of the sovereign.” Longstanding fears of “government by judiciary” have been based on the belief “that much of the task of governance and policymaking has been . . . commandeered by an unelected federal judiciary, in particular the Supreme Court,” an institution that has seized for itself “super-legislative power.” This is the same Supreme Court that has long been viewed as the “least dangerous branch,” subservient to the political branches and popular majorities, lacking effective power to effectuate political or social change, and playing at best a marginal role in national policymaking. These and many other conflicting claims and observations about power proliferate, but it is unclear what, if anything, courts and commentators are really disagreeing about, or how divergent opinions might be adjudicated or reconciled.

A further, and deeper, ambiguity lies in how the power of government institutions at the level of constitutional structure is supposed to relate to the power of “democratic”-level political actors such as voters, interest groups, political parties, and cohesive minorities. We are told by Madison that the accumulation of too much power in the same hands is tantamount to tyranny — but in whose hands? It is one thing to ensure that power is divided between the President and Congress. It is quite another to ensure that power is divided between Democrats and Republicans, the rich and the poor, or racial or religious majorities and minorities, or to prevent one such group from tyrannizing the other. At the institutional level, Madison promised that the constitutional design of government would allow “[a]mbition” to “counteract ambition,” resulting in a balanced equilibrium in which no branch could accumulate tyrannical power. At the level of interests and social groups, Madison suggested an analogous mechanism for balancing power: shifting authority to the national government of an extended republic would create pluralist political competition among many different factions, preventing any one from becoming tyrannically dominant. How these two sets of ideas about balancing power — Federalist No. 51 on the power of institutions, Federalist No. 10 on the power of interests — were supposed to relate to one another was left unexplained.

Contemporary constitutional law has perpetuated the same divide. The law and theory of constitutional structure remains fixated on the distribution of power among government institutions, maintaining “a deep and enduring commitment to separating, checking, and balancing state power in whatever form that power happens to take.” Yet beyond ritualistic citation of the Madisonian maxim about the accumulation of power and tyranny, courts and scholars seldom pause to ask or explain what purpose the (re)distribution of power is supposed to serve or why institutionally concentrated power is so dangerous. Whatever the answer to these questions, it apparently has nothing to do with the kind of factional tyranny Madison was worried about in Federalist No. 10, as the power of interests and social groups is seldom any part of structural constitutional analysis. Concerns about the distribution of democratic-level power, to the limited extent they register at all in constitutional law, have been relegated to and scattered among a number of different areas of doctrine and theory. For example, the constitutional and statutory “law of democracy” allocates, and to some extent equalizes, electoral power with an eye toward ensuring that at least some types of groups — political parties, electoral majorities, and racial minorities — receive their fair share. And in the domain of constitutional rights, Carolene Products theory counsels that groups without adequate political power be granted special protection against discrimination and disadvantage. But political process theory and voting rights jurisprudence are typically viewed as their own enterprises, disconnected from the separation of powers, federalism, or the overarching structural goal of diffusing and balancing power.

That disconnect becomes strikingly evident in how constitutional law addresses — or ignores — some of the most glaring power imbalances in American society. In both its law of democracy and equal protection cases, for instance, the Supreme Court has purported to care about equalizing the political power of citizens or protecting “politically powerless” groups against discrimination. Yet evidence that some groups in society seem to have little or no political influence is viewed as beside the point of constitutional analysis. In light of the much-cited Madisonian maxim, for instance, one might think that the increasing concentration of economic and political power in the hands of what many now describe as an “oligarchy” or a “moneyed aristocracy” in recent decades would be a constitutional problem of some urgency. Yet it is not clear how, if at all, constitutional law might speak to this kind of power imbalance. The apparent facts that “government policy bears absolutely no relationship to the degree of support or opposition among the poor” and that “the preferences of the vast majority of Americans . . . have essentially no impact on which policies government does or doesn’t adopt” have not been understood to raise voting rights, equal protection, or any other kind of constitutional problems. In constitutional law and theory as it currently stands, even the most extreme claim that concentrated wealth has so completely captured control of government that America is no longer a “republic” somehow passes the Madisonian maxim in the night.

This Foreword attempts to make better sense of how power is, and should be, understood, located, and distributed in public law. More specifically, the Foreword argues that constitutional law and theory have been looking for power in the wrong places. At one level, this is because assessing the power of government institutions for purposes of structural constitutional analysis is a much more complex and challenging enterprise than courts and commentators seem to recognize. More fundamentally, the ultimate holders of power in American democracy are not government institutions like Congress and the President but democratic-level interests. Because constitutional analysis seldom looks beyond structural-level institutions, descriptive accounts of the location of power and normative commitments to diffusing and balancing power are both critically misplaced.

The project starts with the meaning of “power.” That term is used so promiscuously in constitutional and political discourse that it might seem hopeless to insist on a single definition. But, in fact, there is a simple and intuitive understanding of power that captures most of what concerns courts and theorists in the constitutional domain. For most (though not all) purposes, “power” in public law should be understood to refer to the ability of political actors to control the outcomes of contested decisionmaking processes and secure their preferred policies. When we talk about power in political life and in constitutional law, this is the kind of power we are typically talking about: the ability to effect substantive policy outcomes by influencing what the government will or will not do. Asking who has power in this sense is equivalent to asking, in Professor Robert Dahl’s famous formulation, “Who [g]overns?”

Having established that conceptual focus, the Foreword continues in three Parts. Part I examines how the “Who governs?” question has been answered at the level of constitutional structure, where it has been directed toward government institutions — Congress, the President, administrative agencies, and the like. Courts and theorists have invested a great deal of effort in attempting to identify where, at the institutional level, power is located and relocated. Unfortunately, as the examples above illustrate, these efforts have been beset by confusion about how to identify and accurately map power. Focusing on the straightforward question of who decides policy outcomes, Part I aims to clarify where there is genuine disagreement and clear a pathway through a minefield of common misconceptions about the location and dynamics of power in the structure of government. In so doing, the discussion casts considerable doubt on the veracity of many conventional understandings of who is wielding or accumulating power within government and, by implication, on the ability of courts and other armchair observers to make such judgments with any reliability.

In any event, if the question of “Who governs?” is understood to mean who has power over policy outcomes, even accurate answers at the level of Congress or the President will only scratch the surface. The foundational power holders in American democracy are the coalitions of policy-seeking political actors — comprising officials, voters, parties, politicians, interest groups, and other democratic-level actors — that compete for control of these government institutions and direct their decisionmaking. As Part II elaborates, parsing power requires “passing it through” government institutions to the underlying democratic interests. Because structural constitutional analysis seldom takes this second step, its analysis of power is not only dubious in accuracy but also superstructural in import. When the analysis is fully carried through, it reveals that the distribution of power at the structural level seldom bears any systematic relation to the distribution of power at the level of interests.

The disconnect between the power of institutions and the power of interests calls into question constitutional law’s preoccupation with balancing or diffusing power at the level of branches and units of government. That disconnect also highlights constitutional law’s relative inattention to the distribution of interest-level power. Part III suggests that concerns about diffusing and equalizing power might be better directed toward the democratic rather than the structural level. While constitutional structure is at best a blunt instrument for distributing power among political interests and social groups, as this Part describes, other areas of constitutional and public law have more directly, albeit sporadically, taken up that task. The law of democracy, the Carolene Products approach to rights, and judicial interventions and institutional design strategies to prevent interest group “capture” of the administrative process are all mechanisms through which public law seeks to redistribute and balance power over government decisionmaking. In addition, taking a more expansive view of the sources of political power, any number of regulatory regimes that affect the distribution of money, mobilization, and other resources that can be leveraged into political influence might be seen in the same light. Part III discusses some of the possibilities and limitations of these different areas of public law in the hope of showing how they might be constructively viewed in a common frame, together with constitutional structure, as part of a broader jurisprudential agenda of distributing, diffusing, and balancing power.

In case it does not go without saying, this project bears no special relationship to the Supreme Court’s most recent Term. But the 2015 Term did contribute at least its fair share to constitutional discussions of power. The Court issued a pair of terse but highly consequential decisions about power at the level of constitutional structure, imposing limits on executive “power grabs.” The decision to block the Obama Administration’s Clean Power Plan cast doubt on the viability of the Paris Agreement and also on the President’s power to act unilaterally and efficaciously on both the domestic and international fronts. The Court’s deadlock on the legality of the Administration’s immigration reform plan dealt a further blow to executive power and, more broadly, to the capacity of the national government to address major social problems under conditions of partisan gridlock — a different kind of power left depleted.

The Court’s deadlock in that case and others this Term is a reminder that the Court itself has been a conversation piece for power in the structural constitution. Another manifestation of partisan gridlock, the Senate’s unwillingness to act on the President’s nomination of a Justice to fill the vacancy left by Justice Scalia, resulted in a series of 4–4 stalemates, along with other cases in which the Justices reached agreement only by way of minimalist compromises. Less capable of deciding significant policy questions, a “less than robust” Court has been “diminished” — or, we might say, disempowered.

The short-staffed Court did manage to reach unanimity in two other major cases dealing not with the power of government institutions but with the power of voters and constituents. In Evenwel v. Abbott, the Court rejected an attempt to reinterpret “one-person, one-vote” to require that election districts be drawn with equal numbers of eligible voters, as opposed to the standard practice of equalizing total population. Justice Alito’s concurring opinion called attention to the fact that “fight[s] over apportionment” have always been about “naked power,” and that this case was no exception. The transparent political stakes of counting only eligible voters would be to suppress the voting power of urban areas with large populations of noncitizens and hence to shift power from Democrats to Republicans. In McDonnell v. United States, the Court overturned the corruption conviction of the former governor of Virginia, who had accepted gifts from a business owner in exchange for political favors. The broader question implicated by the case, signaled by the defendant’s reliance on Citizens United, is what kind of government influence wealthy individuals and groups will, or must, be allowed to buy, and what uses of public power for private ends will be considered “corrupt.”

And then there were a number of other cases that might not seem to have anything to do with political or governmental power, but — as this Foreword will suggest — should be understood as of a piece. In Friedrichs v. California Teachers Ass’n, the Court came within a vote of doing away with mandatory representation fees and thereby decimating public sector unions. Given the role that unions have played in the political mobilization of workers and in making government responsive to the preferences of the poor and middle class, the consequence of that decision would have been greater inequality not just of economic power but also of political power. The two major constitutional rights cases from Texas, Whole Woman’s Health v. Hellerstedt, striking down parts of the state’s restrictive abortion law, and Fisher v. University of Texas at Austin, upholding its race-conscious college admissions program, can also be viewed as cases about political power. Judicial intervention on behalf of the socioeconomic opportunity and against the subordination of women and racial minorities can be understood, on the Carolene Products model, as compensating for a lack of political power while at the same time contributing to the empowerment of these groups.

These half-dozen cases would conventionally be viewed as raising very different kinds of constitutional concerns and assigned to separate categories of structure, democracy, and rights. The ambition of the pages that follow is to show how those categories and the apparently disparate array of legal and political controversies they contain might be integrated into a more cohesive and normatively compelling vision of power in public law.

* Vice-Dean and David Boies Professor of Law, New York University School of Law. Thanks to Adam Cox, Barry Friedman, David Garland, Heather Gerken, Jack Goldsmith, David Golove, Moshe Halbertal, Don Herzog, Dan Hulsebosch, Mike Klarman, Liz Magill, John Manning, Rick Pildes, Eric Posner, Daphna Renan, Ben Sachs, Adam Samaha, David Schleicher, Ganesh Sitaraman, Nick Stephanopoulos, David Strauss, and to Liam Murphy, Jeremy Waldron, and participants in their NYU Colloquium in Legal, Political, and Social Philosophy, for helpful comments and suggestions. Thanks also to Ameneh Bordi, Nicolas Duque-Franco, Jake Karr, Daniel Loehr, and Annmarie Zell for invaluable research assistance.