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Separation of Powers Legitimacy: An Empirical Inquiry into Norms About Executive Power

The continuing debate over the President’s directive authority is but one of the many separation‐of‐powers issues that have confronted courts, scholars, government officials, and the public in recent years. The Supreme Court, for instance, has considered whether the President possesses the power to make appointments of agency heads without Senate confirmation during certain congressional recesses. The Court has passed judgment recently, but has yet to resolve fully, questions about Congress’s authority to constrain the President’s power to remove the heads of administrative agencies. And the Court has considered the limits on Congress’s ability to delegate legislative authority to other rulemaking institutions.10 In these and other cases involving disputes over interbranch relations, courts and academic analysts have perennially grappled with both legal interpretation as well as constitutional history and political theory. Yet, as much as these cases involve law, history, and theory, they also at least implicitly raise decidedly empirical questions about law’s effects on governmental behavior as well as its impacts on the legitimacy of constitutional government.

Empirical questions are embedded throughout all forms of law, but the empirical effects of structural aspects of constitutional law have so far largely escaped systematic study. Admittedly, political scientists have studied the three branches of government and their interactions extensively, but what have so far avoided systematic empirical study are the relationships between different choices about separation‐of‐powers doctrine and outcomes in terms of governmental behavior or public attitudes about governmental legitimacy. This Article offers an initial foray into this largely unexplored terrain, providing a distinctive empirical investigation of public norms about executive power and how doctrinal choices can affect perceptions of the legitimacy of legal judgments. We focus here on Presidents’ efforts to get involved in shaping what agencies do.