Trump v. United States and the Separation of Powers

Introduction

Trump v. United States is a blockbuster decision that has been reviled and celebrated by different quarters of American society.¹ Instead of focusing on the decision’s political or policy implications,² this Essay assesses what it portends for separation-of-powers theory. In brief, it argues that the majority’s opinion reveals fatal limitations in the dominant form of separation-of-powers analysis on the Supreme Court today: separation-of-powers formalism.³ Separation-of-powers formalism has never constructed a method either to identify when disputes arise in areas of shared authority or to resolve those that do.⁴ This is a major problem because nearly all disputes that arise today involve areas of shared authority.⁵ Criminal immunity provides one more such example.

The Trump v. United States majority holds that the President’s “official acts” are subject to two forms of immunity.⁶ First, it concludes that the President has “absolute” immunity whenever the President exercises “exclusive” powers.⁷ Second, it concludes that the President has “presumptive” immunity when exercising power that is “concurrent” with that of Congress.⁸

Being able to distinguish between areas of “exclusive” and “concurrent” authority thus proves critical to the inquiry. But the majority never explains how to do so. This Essay provides a way to coherently identify areas of exclusive and shared power. However, this method reveals that criminal immunity issues will never arise in areas of exclusive, rather than shared, power.

It is relatively easy to explain why. For criminal immunity to matter, Congress must have constitutional authority to criminalize certain conduct. If it does not have such power, then the criminal prohibition would be unconstitutional as applied to anyone, not just the President. Meanwhile, if the President’s exercise of power is an “official act”—which is a prerequisite for immunity to attach⁹ —then the President also has power to engage in the particular conduct. For criminal immunity issues to arise at all, then, an action must fall within an area where both Congress and the President have constitutional authority to act and have come into conflict.

In its first holding, the Court nonetheless labels certain areas of the President’s power “exclusive” and subject to absolute immunity.¹⁰ But this label is the outcome of the majority’s implicit choice to prioritize the President over Congress in an area of shared authority. It is not the basis for that choice. Indeed, the majority never justifies this choice at all. It never explains why the President’s power ought to limit that of Congress in this area of shared authority, rather than Congress’s power limiting that of the President. Such a justification is required because Congress and the President are co-equal branches and both have constitutional power to act in such a domain. One thus needs a reason to pick one branch over the other. But such a reason is never provided. This arbitrariness is sadly not surprising. To the contrary, it is reflective of formalism’s longstanding inability to identify or resolve disputes in areas of overlapping power.¹¹

What is truly novel about the decision is that the conservative, formalist majority seems to concede this point when it addresses areas of “concurrent” authority explicitly. To date, formalists have largely avoided explaining how they would go about resolving disputes between the branches in an area where they concede that both branches have come into conflict in an area of concurrent power.¹² Now we know how they will do so. The entire block of conservative Justices—including formalism’s most principled advocate, Justice Clarence Thomas—signed on to an opinion abandoning categorical formalism in areas of shared power.¹³ Instead, the majority applies a form of noncategorical interest balancing to construct its “presumptive” immunity standard.

Although this part of the opinion has been the subject of much criticism,¹⁴ this Essay argues that it is to be commended. As I have argued elsewhere, of the existing alternatives, interest balancing is the best method to resolve separation of powers disputes.¹⁵ This is true even if—like the Trump v. United States dissenters¹⁶ —we might disagree with how the Court goes about weighing the relevant interests. In sum, while the opinion is worthy of criticism in many respects, it also has the potential to point the way toward a productive future beyond formalism. We ought to embrace that.

This Essay proceeds as follows. Part I provides a brief explanation of what the majority held in Trump v. United States as it relates to separation of powers theory. Part II then explains why the first category of immunity that the Court identifies—absolute immunity for “exclusive” powers—cannot be justified. Part II.A provides a way to coherently conceive of the category of “exclusive,” “conclusive and preclusive,” power that the Court relies on. Part II.B then explains that criminal immunity and the other examples the Court gives of “exclusive” authority do not fall into this category, as it is properly conceived. The dispute at issue—over whether then-former President Trump was criminally immune from criminal prosecution—arises in an area of shared power. The Court’s decision to prioritize the President over Congress in this area of overlapping authority without justification is thus fundamentally arbitrary—it is a decision made without reason.

Part III then explains that the Court effectively concedes that formalism is unable to resolve disputes in areas of overlapping power in the second category of immunity. In addressing areas of “concurrent” authority explicitly, the Court abandons formalism’s commitment to categorical rules and adopts a noncategorical interest balancing approach. Part III defends the Court’s adoption of interest balancing, notwithstanding the inevitability of disagreement over how the Court weighs the relevant interests in particular cases. It argues that such disagreement is not only routine in constitutional adjudication, but that it is precisely the sort of disagreement we should encourage.

In sum, Trump v. United States portends an important development in separation of powers theory. It lays bare the severe limits of separation of powers formalism. In the area of ostensible “exclusive” authority, the majority tries to remain consistent with formalism’s commitment to resolving disputes using categorical rules derived from the original public meaning of the Constitution.¹⁷ But its efforts are in vain, because—like almost all controversial separation of powers disputes¹⁸ —criminal immunity does not, in fact, arise in an area of authority possessed only by one branch. Meanwhile, in areas of avowed concurrent authority, the majority abandons formalism entirely. In these respects, the Court’s decision is perfectly consistent with inherent limits of separation of powers formalism. This is not to excuse the majority’s opinion. It is to argue for the abandonment of its preferred separation of powers methodology and point the way toward a promising future beyond it.

I. Trump v. United States in Brief

In Trump v. United States, the Court concluded that the President has absolute immunity for official acts taken pursuant to the President’s “exclusive,” “conclusive and preclusive” authority.¹⁹ The Court, however, distinguished exercises of authority pursuant to power that is “concurrent” with that of Congress. In those cases, it engaged in a form of noncategorical interest balancing to conclude that the President had “presumptive,” but not conclusive immunity.²⁰ Such “presumptive” immunity could be overcome, the majority explained, but only if permitting criminal liability to attach would “pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”²¹ Meanwhile, if the President’s conduct is “unofficial,” the Court concluded that the President has no immunity at all.²²

The majority thus lays out three categories of presidential conduct with varying levels of immunity: (1) official conduct in the “exclusive, preclusive, and conclusive” zone gets absolute immunity; (2) official conduct in areas of “concurrent authority” gets presumptive immunity; and (3) unofficial conduct gets no immunity.

Tripartite categories are certainly familiar in separation of powers jurisprudence, but they often raise as many questions as they answer.²³ This is true here as well. The type of immunity the President receives depends on categorizing an official act as falling into an area of either “exclusive” or “concurrent” power. Yet, the Court never explains how we are to determine which category a particular exercise of power falls into.

Below, I will provide a way to distinguish between areas of exclusive and concurrent authority consistent with formalism’s commitments. I will explain that this method reveals that the Court’s approach to absolute immunity is fundamentally flawed, but that this is unsurprising given formalism’s general inability to identify or address disputes arising in areas of overlapping power. I will then explain how the Court’s approach to areas it explicitly views as involving “concurrent authority” confirms these limits.

II. “Exclusive” Powers and Criminal Immunity

The Court relies heavily on the category of “exclusive,” “conclusive and preclusive” authority, which renders conduct absolutely immune. Figuring out what falls into this category is obviously critical, as it defines an area of power where the President can never be prosecuted. Yet the Court provides no method for figuring out what powers are exclusive and which are not. Sadly, this is not unique to the Trump opinion. Although the use of “exclusive” powers to resolve separation of powers disputes is a mainstay of formalist reasoning, formalists have never provided a good way of figuring out what falls into this category—nor have they clearly explained what precisely it means.²⁴ To understand the role of exclusivity in formalism, it is first necessary to understand separation of powers formalism’s underlying commitments. Below, in Part II.A., I explain the role of exclusivity within formalism’s framework and then provide a framework to distinguish between areas of power that are “exclusive” and those that are shared by Congress. In Part II.B., I then apply this framework to the issues in Trump v. United States.

A. Formalism’s Overlapping Powers and Problem and the Internal/External Limits Approach

Separation of powers formalism views the Constitution as dividing up and allocating distinct powers to the three different branches of government.²⁵ Opposed to what it sees as overly subjective functionalism, formalism has two principal commitments meant to enforce the separation in the separation of powers. First, it seeks to resolve separation of powers disputes using rules, rather than standards.²⁶ Second, it seeks to derive such rules from the original public meaning of the Constitution.²⁷ Consistent with these commitments, formalism’s standard method of resolving disputes is to identify which branch has “exclusive” power over the matter at hand.²⁸ Whichever branch has exclusive power is thought to prevail, because, by definition, no other branch has any relevant power over the matter.

Although appealing in principle, as I have argued in recent work, this method fails to address the persistent formalist concession that even “exclusive” powers can overlap to some extent.²⁹ If even so-called “exclusive powers” can overlap, identifying which branch has “exclusive” power is insufficient to resolve a dispute. One also needs a method that (1) identifies whether the dispute arises in an area of shared power and (2) resolves disputes that arise in them. Yet formalism has never provided a clear method to answer either question.³⁰

Using a conventional distinction in constitutional law between internal and external limits, I have developed such a method that is consistent with formalism’s premises.³¹ Internal limits are those that “inhere[] in the definition of the power,”³² while external limits are “affirmative prohibitions” arising outside of the grant of the power itself that “prevent [the relevant branch] from doing things that would otherwise be permissible exercises of its powers.”³³ For example, to figure out what internal power is included in the Commerce Clause, we ask questions about what “regulate Commerce” or “among the several States” means.³⁴ Thus, internally speaking, it is generally agreed that Congress has power, among other things, to regulate the interstate sale of commodities.³⁵ Such internal power, however, can nonetheless be limited externally by other provisions in the Constitution, such as the Bill of Rights. So, although Congress has internal power to prohibit the interstate sale of communist propaganda or guns—doing so would fall under its internal authority to regulate “commerce . . . among the several states”—such a power is externally limited by the First and Second Amendments, respectively.³⁶

This distinction can help identify areas of overlapping power between the branches. To discern if we are in an area of overlapping power, one can simply ask whether both branches have internal power to act. If only one branch has internal power to act, then the dispute does not arise in an area of overlapping power—it can thus be understood as “exclusive” in the classic formalist sense that only one branch has authority over the matter in question. If, on the other hand, both branches have power to act, then the matter arises in an area of overlapping authority.³⁷

To resolve a dispute in an area of overlap using a rule consistent with formalism’s premises thus requires resorting to external limits. We must find that the President’s power externally limits that of Congress or that Congress’s power externally limits that of the President.³⁸ The problem that arises is that the Constitution does not tell us which branch to prioritize in such instances. In areas of overlapping power, it just says that both branches have power to act. It does not explain what to do when the branches come into conflict in such areas.

This is in contrast to other areas of constitutional law where external limits are used, such as in individual rights disputes, where individual rights, by default, externally limit the government’s power, rather than the other way around.³⁹ Similarly, in federalism disputes, generally speaking, the federal government’s power limits that of the states.⁴⁰ In the separation of powers context, on the other hand, we have no such prioritization mechanism—we do not know whether the President’s power should limit Congress’s power or whether Congress’s power should limit that of the President.⁴¹

In sum, then, the internal/external limits approach provides a way to identify when disputes arise in areas of shared power, i.e., when both branches have internal power to act, and reveals that resolving such disputes requires resort to external, rather than internal limits. Yet, as I have explained at some length, formalism has never provided any general rule that explains whether the President’s power ought to externally limit power that Congress otherwise has, or whether Congress’s power ought to externally limit power the President otherwise has.⁴²

B. Applying the Internal/External Limits Approach to Trump v. United States

How does this framework apply to Trump v. United States? As noted above, the case relies heavily on the category of “conclusive and preclusive” authority which Congress cannot regulate.⁴³ The phrase “conclusive and preclusive” comes from Justice Jackson’s famous Youngstown concurrence.⁴⁴

Some scholars have been surprised to see reliance on Justice Jackson’s opinion—which is typically thought of as a paragon of pragmatic reasoning—in the majority’s formalist analysis. But as I have argued in prior work, Justice Jackson’s opinion operates in a formalist manner in Category Three.⁴⁵ Category Three is the only category in which Congress and the President come into conflict, and, in such a situation, Jackson emphasized that the President’s power is at its “the lowest ebb.” But even in the “lowest ebb,” Justice Jackson stated the President can nonetheless prevail. To prevail, Jackson provided that the President,

can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claims to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.⁴⁶

Scholars have long decried Justice Jackson’s arithmetic metaphor as unhelpful.⁴⁷ And, indeed, it is not obvious how one could quantify such power and engage in the subtraction that Jackson suggests. But the internal/external framework might help to explain it. Perhaps what Justice Jackson meant is that the President’s power is “conclusive and preclusive” when only the President has internal power to act. In such a situation, the President could “rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”⁴⁸ In other words, in such a situation, only the President has power to act in the first place.

The graphic below might help to illustrate the point. Imagine that the oval on the left represents all the internal power Congress has over a matter, while the oval on the right represents all the internal power the President has over the relevant matter. The overlapping area is where both Congress and the President have internal power to act. Perhaps what Jackson meant when he said the President can “rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter,” is that the issue arises in the unshaded area on the right outside the area of overlap. This is also supported by Jackson’s phrasing later in the opinion that, because the steel seizure at issue arose in contravention of congressional will, it could “be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject.”⁴⁹ On this view, then, the President prevails when the President has internal power and Congress does not. This would explain why Congress would be “disable[d] . . . from acting upon the subject” in such areas.⁵⁰

So, how do the powers that the majority in Trump v. United States claims are “conclusive and preclusive” fit into this scheme? In the majority’s view, power that falls into this zone cannot be regulated by Congress. But to justify this position, the zone should consist of powers where only the President has internal power and Congress has no internal power. But that is not what the Court seems to be saying.

This becomes apparent when we realize that all criminal immunity issues arise in areas of overlapping power. The internal/external limits framework makes it relatively easy to see why. The only time a federal criminal immunity issue arises is if Congress has internal constitutional power to pass a generally applicable criminal law. If Congress lacks internal power to enact the provision, then we do not get out of the gate—the criminal prohibition is unconstitutional as applied to anyone, not just the President. Meanwhile, if the President has engaged in an “official act”—a prerequisite for immunity to attach⁵¹ —then the President also has relevant power to act. We are thus in an area of overlapping power: Congress has constitutional power to criminalize certain conduct and the President has constitutional power to engage in that conduct.

How, then, do we know that the President is immune? The Court claims that the President’s Article II power externally limits whatever other power Congress might have over the matter. But how do we know that Article II limits whatever Article I power Congress has over the relevant matter, rather than Article I limiting the President’s Article II power? The majority chooses to prioritize the President over Congress in this area of overlapping power, but it never justifies this choice. The Court labels the power “conclusive and preclusive,” but this is a label, not a reason. Congress and the President are co-equal branches. There must be some justification for privileging one over the other. Yet, the Court does not provide one.

The below figures illustrate the problem. There is an area of overlap where official presidential conduct falls within the power of Congress to criminalize behavior. One could thus imagine three ways to resolve the dispute. First, one could recognize the area of overlapping power and provide a noncategorical method to resolve disputes within that area.⁵² Second, as the majority holds, one could conclude that the President’s relevant power externally limits that of Congress, such that whatever power Congress has is limited as soon as it comes into contact with Presidential power. Or, third, one could conclude that Congress’s relevant power externally limits any relevant power over the President. The result of this third option would be an absence of immunity for official acts, which is what the dissenters seem to have preferred.

The Court chooses the second approach, but it never explains why the President’s power limits that of Congress, rather than Congress’s power limiting that of the President. This is especially confusing because when the majority explicitly confronts areas of “concurrent” authority, it adopts a noncategorical analysis, like that illustrated in Figure 1. This is a good example of the inherent limits of formalism: it simply has no answer for what to do in areas of overlapping power.

The same goes for the other examples the Court points to as “conclusive and preclusive” powers. The Court states that “[t]he President’s authority to pardon . . . is ‘conclusive and preclusive,’ ‘disabling the Congress from acting upon the subject.’”⁵³ In this way, the Court concludes that Congress could never regulate a pardon. This conclusion may seem intuitive, but how do we know that it is true? If Congress determined that, for example, in order to regulate interstate commerce, it should make pardons of particularly egregious financial crimes harder to do—perhaps by requiring they be in writing or be justified by an “overwhelming public interest” or the like—it would seem to have the internal power to pass a statute with these requirements. How do we know that the pardon power externally limits that internal power?⁵⁴ Even if we share the intuition that Congress could not regulate pardons in this way, this intuition is not based on any original public meaning evidence of the sort to which formalism is committed.⁵⁵

Next, consider the Court’s example of the President’s removal power. Whether the President possesses any—let alone exclusive—power over removal is one of the most studied questions in separation of powers scholarship.⁵⁶ But, even taking the majority’s statement at its word, the President’s power is not “conclusive and preclusive” in the sense that only the President has internal power over removal of executive branch officers.

The Court states that “[t]he President’s power to remove . . . ‘follows from the text of Article II.’ We have thus held that Congress lacks authority to control the President’s ‘unrestricted power of removal.’”⁵⁷ But the Court then cites to Seila Law v. CFPB,⁵⁸ which the majority describes as noting “two exceptions to the President’s unrestricted removal power.”⁵⁹ If it were true that only the President has power over removal, such that Congress has no internal power to regulate removal, then there would be zero exceptions to this rule, not two. The Court’s acknowledgement that Congress has some power over removal proves that it is not “conclusive and preclusive” in the sense that only the President has internal power over it.

Indeed, as formalists have long acknowledged, Congress has other internal power over removal as well. If it wishes to do so, it can establish term limits, which effect removals at the end of the term, and Congress can even disestablish an office to remove a particular official.⁶⁰ More broadly, there is no reason to think that Congress’s internal power to create and structure offices—which includes, among other things, the ability to require that officers have certain qualifications, that they serve a limited term of years, that they have limited subject matter jurisdiction, and that they go through certain administrative procedures before issuing regulations or adjudicating disputes—would not also include the power to impose restrictions on when removal is appropriate or how it ought to be done.⁶¹ In other words, there is little reason to think that the President is the only branch with internal power over removal of executive officers.⁶² This is another example of an ostensibly “conclusive and preclusive” power that Congress seems to have internal power over. Of course, one could argue that the President’s power must externally limit Congress’s internal power in this domain, but such a prioritization decision requires an original public meaning justification that the Court does not provide.⁶³

The final example the Court gives of an “exclusive power of the President” is that of foreign state recognition. The Court states that “Congressional commands contrary to the President’s recognition determinations are thus invalid.”⁶⁴ But this is simply not true. The case the majority cites for the proposition that the recognition power is exclusive, Zivotofsky v. Kerry, makes explicit that Congress can “express its disagreement” with the President’s formal recognition decision “in myriad ways. For example, it may enact an embargo, decline to confirm an ambassador, or even declare war.”⁶⁵ Perhaps the Trump majority would say that such commands are not “contrary to the President’s recognition determination,” but it is hard to see how this is so. To the contrary, Congress has numerous internal powers that can affect the President’s recognition power.⁶⁶ The power is not possessed internally only by the President.

In sum, the Court relies heavily on the notion that the President’s “conclusive and preclusive” power cannot be affected by Congress, but it never explains how to identify what falls into that category or why it cannot be affected by Congress in any way. There is a coherent way to understand this category—if it meant areas where only the President has internal power to act—but the examples the Court gives, including criminal immunity, do not fit into this category.

With respect to criminal immunity issues, then, the Court has prioritized the President over Congress without justification. It has labeled the President’s power “conclusive and preclusive” and stated that such power trumps Congress’s power, but at no point does it provide any reason for this prioritization.⁶⁷ Such a justification is necessary because Congress too has a claim to power in this domain. To pick the President over Congress requires a reason, not simply a label.

III. Abandoning Formalism in Areas of Overlap

The “conclusive and preclusive” zone cannot do the work the Court asks of it because, in its coherent form, it is simply not very helpful in resolving separation of powers conflicts. It is not that this zone is empty—there are some areas of authority that are possessed by only one branch. For example, only Congress has internal power to impeach a Supreme Court Justice, and only the President has power to issue a pardon.⁶⁸ So, if the President tried to impeach a Justice or Congress tried to pardon an individual, formalism could help explain why such actions would be unconstitutional.⁶⁹ But no one argues about such things.

To the contrary, almost all the difficult cases of separation of powers disputes arise in areas where both branches have power to act and come into conflict.⁷⁰ These include disputes over for-cause removal restrictions, foreign-state recognition, the conduct of diplomacy, military affairs, and executive privilege.⁷¹ The problem for formalism is that it has no coherent method to resolve disputes in such areas.⁷²

Formalism’s inability to deal with areas of overlapping power is confirmed by the Court’s approach to the “presumptive” immunity it says attaches to areas of “concurrent authority.”⁷³ In such areas of overlapping power, the formalist majority does not try to come up with a categorical “absolute” rule that would be consistent with its commitments to resolving disputes using rules, rather than standards. Instead, it engages in a form of noncategorical interest balancing to derive a test for when immunity ought to exist.⁷⁴

In particular, the majority weighs the public interest in the President’s ability “to deal fearlessly and impartially with the duties of his office” while “recogniz[ing] the countervailing interests at stake . . . . Federal criminal law seeks to redress a ‘wrong to the public’ as a whole, not just a wrong to the individual.’ . . . There is therefore a compelling ‘public interest in fair and effective law enforcement.’”⁷⁵ The Court ultimately concludes that “[t]aking into account these competing considerations, . . . the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”⁷⁶

The Court’s approach here is one of interest balancing. One first asks about whether one branch’s action has infringed on the power of another branch, and, if so, whether such infringement is justified by a sufficiently strong interest. This mode of analysis is not new in the separation of powers—although its prior uses were primarily by a Supreme Court that did not consider itself formalist.⁷⁷ For example, separation-of-powers interest balancing was used rather explicitly in Nixon v. Administrator of General Services.⁷⁸ In that case, the Court rejected formalism⁷⁹ and instead held that resolving separation of powers disputes required assessing “the extent to which [a congressional Act] prevents the Executive Branch from accomplishing its constitutionally assigned functions . . . . Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress.”⁸⁰ This interest-balancing mode of reasoning might sound familiar to readers, as it is the prevailing method of resolving disputes in constitutional rights.⁸¹ I am on record arguing that it is the best approach to resolving separation of powers disputes as well.⁸²

In Trump v. United States, the Court weighs the interests of the President in avoiding potential criminal liability against the interest of the Judiciary and Congress in criminalizing certain conduct and adjudicating potential violations of such criminalization.⁸³ The ultimate test it comes up with is that the President is immune “unless the Government can show that applying a criminal prohibition to [the relevant] act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”⁸⁴

As the dissent and others have pointed out, taken literally, this test would suggest that the President’s “presumptive” immunity is effectively absolute because virtually any potential criminalization of official conduct could plausibly impose a “danger of intrusion” on the authority and functions of the Executive Branch.⁸⁵

I agree that the majority’s phrasing is overly restrictive. But I do not think it needs to be applied literally. In fact, there is precedent for an ostensibly demanding standard like this one being overcome in separation of powers cases.

For example, in Morrison v. Olsen, the Court characterized its removal jurisprudence as follows:

The analysis contained in our removal cases is designed . . . to ensure that Congress does not interfere with the President’s exercise of the ‘executive power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully executed’ under Article II.⁸⁶

The Court nonetheless upheld the for-cause removal restriction at issue, even though the restriction quite obviously “interfere[d] with the President’s” Article II authorities to some extent, by limiting the President’s ability to remove a lower-level executive branch official.⁸⁷ Clearly, the Court was comfortable with some amount ofinterference, so long as it was sufficiently justified.⁸⁸

Similarly, Justice Kagan stated in her Seila Law dissent that “the governing rule [in removal jurisprudence is] that removal restrictions are permissible so long as they do not impede the President’s performance of his own constitutionally assigned duties.”⁸⁹ Again, removal restrictions surely “impede the President’s performance of his own constitutionally assigned duties” to some extent, but Justice Kagan was comfortable with some for-cause limitations being permitted notwithstanding.⁹⁰

In short, the seemingly categorical wording in the Court’s analysis can be applied non-categorically. And in my view it should be. The Court can continue to use interest-balancing analysis, which requires it to weigh the relevant interests.

At this point, it is worth clarifying that Justice Sotomayor’s dissent in Trump v. United States explains forcefully why she and the other liberal Justices would weigh the balance of interests differently.⁹¹ I would, too. But such disagreement over how to weigh relevant interests is routine in constitutional adjudication.⁹² Further, in my view, such disagreement about noncategorical interest balancing is preferable to disagreement over formalist rules.

If one disagrees with the outcome of an interest balancing analysis as applied to a particular case, one can potentially still prevail another day. If instead one disagrees about a rule governing a set of cases, one has lost all those cases already. This is an obvious consequence of opting for rules rather than standards. Importantly, even if the progressives might have preferred a categorical rule in this case (for example, one requiring deference to Congress), that would not be the rule the conservative majority would adopt. Thus, if the conservative majority is to be in charge, I think it preferable for progressives to lose on the application of a standard than in how to construct a rule. At least with standards one can lose today but win tomorrow. This seems preferable to losing today, tomorrow, and forever.

Indeed, as I have explained at length elsewhere, interest balancing as a mode of constitutional dispute resolution for the separation of powers is attractive for a host of reasons.⁹³ It aligns conceptually with the disputes that actually arise today, which do not involve instances where only one branch has power to act, but instead involve situations where both Congress and the President have legitimate claims to authority.⁹⁴ Balancing the relevant interests driving each branch is a perfectly sensible way to address these genuinely difficult cases. Further, this approach has the benefit of lowering the stakes of individual disputes and avoiding the inevitable arbitrariness of coming up with binding categories that formalism’s commitment to rules requires.⁹⁵ That arbitrariness arises from the fact that the constitutional text is too vague to produce binding rules that can resolve contemporary disputes in a principled way.⁹⁶

Interest balancing also has the benefit of encouraging accommodation and deliberation.⁹⁷ Because it makes the reasons behind government action relevant, it encourages the branches to explain why they are acting in particular disputes to justify why they should prevail. And because interest balancing is noncategorical in nature, it gives both branches an incentive to continue to explain their rationales as new disputes arise—and consider the rationales proposed by the other branch—because such rationales are essential to prevailing in any interest balancing analysis.⁹⁸

Finally, interest balancing allows for separation-of-powers analysis to remain dynamic while also giving real meaning to the Constitution’s textual allocation of powers between the branches.⁹⁹ Because the interests that matter are those in service of the relevant constitutionally assigned powers, the separation of powers dictated by the text is respected.¹⁰⁰ But the law that emerges is not static because the reasons for the relevant acts will change, even if the text does not.¹⁰¹

For all of these reasons, interest balancing is an attractive approach to navigating the difficult question of how to resolve disputes between the branches when each branch has power to act.

None of this is to suggest that interest balancing is without costs. For example, its mode of analysis is necessarily subjective and it may lead to greater instability in the separation of powers.¹⁰² But these downsides are no less present in formalism.¹⁰³ Because formalism has no clear method to prioritize one branch over the other in areas of shared authority, formalist decisions ultimately prove arbitrary.¹⁰⁴ We need look no further than the absolute immunity ruling in Trump v. United States for proof. As discussed above, the Court’s decision to privilege the President’s “exclusive” power over Congress’s power to criminalize conduct was subjective. The majority could have just as easily chosen to privilege Congress over the President. Thus, although formalism is ostensibly committed to relying on positive sources outside of subjective judgment, subjective judgment must play a role because these positive, external sources are insufficient to answer hard questions.¹⁰⁵

There will never be a separation of powers analysis that removes all disagreement. For these reasons and others, disagreement over whether a particular intrusion is justified by a sufficiently strong reason is preferable to the adoption of categorical rules ostensibly derived from the vague text of the Constitution.¹⁰⁶ We are in a world of tradeoffs, and that is the tradeoff I would make.

Conclusion

Trump v. United States makes plain what we ought to have known all along. Separation of powers formalism is not up to the task of resolving the difficult separation of powers disputes that arise today.

The Court begins by trying to come up with a categorical, formalist rule to grant absolute immunity in areas of “exclusive,” “conclusive and preclusive” presidential authority. But the only conception of this category that coheres cannot be reconciled with criminal immunity or the other examples the Court provides. If Congress has the power to criminalize conduct at all, then the fact that it overlaps with the President’s power does not mean the President’s power limits that of Congress, because Congress’s power could just as easily be seen as limiting that of the President. One must justify choosing to prioritize the President over Congress in an area of shared authority. The Trump v. United States majority never does.

When the Court explicitly addresses areas of overlapping power, it abandons formalism’s attachment to categorical rules entirely. Instead, the Court adopts a rudimentary form of interest balancing. This ought to serve as the most explicit confirmation yet that formalism cannot manage disputes in areas of shared power. And, while I do not agree with the test the Court constructs from its interest-balancing analysis, I do think it is on to something important. As I have argued elsewhere, interest balancing is the best method to resolve difficult separation of powers disputes of the prevailing alternatives. Interest balancing can be further developed and refined, but we ought to commend the Court for moving in this direction. This does not mean we will always agree with how the Court balances relevant interests. But these are the debates we ought to be having.

1. Trump v. United States, 144 S. Ct. 2312 (2024). ↩︎
2. See, e.g., Jack Goldsmith, Broad Reflections on Trump v. United States, LAWFARE
   (July 2, 2024), https://www.lawfaremedia.org/article/broad-reflections-on-trump-v.-united-states [https://perma.cc/2WGZ-S29N] (arguing that it is hard to predict the policy implications of the ruling). ↩︎
3. See, e.g., Gillian E. Metzger, The Roberts Court and Administrative Law, 2019 SUP. CT. REV. 1, 3 (2020) (describing the Roberts Court as formalist); Kristin E. Hickman, The Roberts Court’s Structural Incrementalism, 136 HARV. L. REV. F. 75, 77 (2022) (same). ↩︎
4. See generally Shalev Gad Roisman, The Limits of Formalism in the Separation of Powers, 16 J. LEGAL ANALYSIS 178 (2024) [hereinafter Roisman, Limits] (providing an extended defense of this claim). ↩︎
5. See id. at 188-191. ↩︎
6. Trump, 144 S. Ct. at 2326-32. ↩︎
7. Id. at 2327-28. ↩︎
8. Id. at 2328, 2331. ↩︎
9. Unofficial acts receive no immunity. See id. at 2332 (“As for a President’s unofficial acts, there is no immunity.”). ↩︎
10. Id. at 2327-28. ↩︎
11. See Roisman, Limits, supra note 4, at 192-206 (establishing formalism’s inability to address disputes arising in areas of overlap in a coherent way). ↩︎
12. See id. at 183 (arguing that “formalism has an overlapping powers problem. Formalists have acknowledged that areas of overlap exist, but have never developed a theory for how to identify areas of overlapping power or what to do when conflicts arise in such areas”); see also id. at 192-206. This is perhaps most apparent in a remarkable, but largely overlooked, statement in Justice Thomas’s concurrence in Zivotofsky v. Kerry, where he stated that how “the Constitution would resolve a conflict between the political branches, each acting pursuant to the powers granted them under the Constitution” is a “difficult separation-of-powers question” that “I need not opine on[.]” 576 U.S. 1, 55 (2015) (Thomas, J., concurring); see Roisman, Limits, supra note 4, at 178 & n.1 (explaining context for this quotation). ↩︎
13. Trump, 144 S. Ct. at 2329-2332. ↩︎
14. No less so than by the dissent. See id. at 2357 (Sotomayor, J., dissenting) (stating that the majority’s holding is “deeply wrong, even on its own functionalist terms”); see also Daniel Epps (@danepps), TWITTER (July 1, 2024, 8:18 AM), https://x.com/danepps/status/1807795818327666780 [https://perma.cc/2R8F-JNXC] (“Decisions like Trump v US, far more than Jarkesy or Loper-Bright, give the lie to the conservative Justices’ project. Pious lecturing about text and formalism gives way to freewheeling wouldn’t-it-be-better policy analysis that just happens to benefit Republicans.”). ↩︎
15. See Shalev Gad Roisman, Balancing Interests in the Separation of Powers, 91 U. CHI. L. REV. 1331, 1380-99 (2024) [hereinafter Roisman, Balancing] (assessing benefits and costs relative to prevailing alternatives and concluding it is the best of the available options). ↩︎
16. See Trump, 144 S. Ct. at 2362-67 (Sotomayor, J., dissenting) (disagreeing with the majority’s weighing of the relevant interests). ↩︎
17. I explain formalism’s commitments to resolving disputes using rules, rather than standards, that are derived from the original public meaning of the Constitution in Part II.A. ↩︎
18. For recent work explaining how most separation of powers disputes that we debate arise in areas of shared power, see Roisman, Limits, supra note 4, at 188-191; Roisman, Balancing, supra note 15, at 1345-51. ↩︎
19. Trump, 144 S. Ct. at 2328. ↩︎
20. Id. at 2328, 2331-32. ↩︎
21. Id. at 2331-32. ↩︎
22. Id. at 2332. ↩︎
23. See infra Part II.B. (discussing Justice Jackson’s Youngstown concurrence). ↩︎
24. See Roisman, Limits, supra note 4, at 183 (“[F]ormalism has an overlapping powers problem. Formalists have acknowledged that areas of overlap exist, but have never developed a theory for how to identify areas of overlapping power or what to do when conflicts arise in such areas.”). In a work in progress, I explore the question of what it means for a power to be “exclusive,” which is surprisingly undertheorized. See Shalev Gad Roisman, What are “Exclusive” Powers? 3 (unpublished manuscript) (on file with author) (conceptualizing the idea of exclusivity as one branch of the government possessing all of a particular given power, rather than any of such power). ↩︎
25. See, e.g., Thomas W. Merrill, The Constitutional Principal of Separation of Powers, 1991 SUP. CT. REV. 225, 231-33 (1991) (“A pure formalist embraces what I will call an ‘exclusive functions’ interpretation of the relationship between functions and branches. On this view, each of the three branches has exclusive authority to perform its assigned function, unless the Constitution itself permits an exception . . . . because of the assumption of its substantive theory that each function is uniquely assigned to one branch.”); M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. PA. L. REV. 603, 608 (2001) (“[The formalist approach] emphasizes that the Constitution divides governmental power into three categories and, with some explicit textual exceptions, assigns those powers to three different branches of government.”); Aziz Z. Huq, Separation of Powers Metatheory, 118 COLUM. L. REV. 1517, 1518-19, 1529 (2018) (“[T]he formalist] approach . . . tend[s] to end in an account of the branches as separate and distinct entities.”); Roisman, Limits, supra note 4, at 179. ↩︎
26. See, e.g., John F. Manning, Separation of Powers as Ordinary Interpretation, 124 HARV. L. REV. 1939, 1941, 1958 (2011) (“Formalist theory presupposes that the constitutional separation of powers establishes readily ascertainable and enforceable rules of separation.”); M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 VA. L. REV. 1127, 1138 (2000) (“[F]or the formalist, questions of horizontal governmental structure are to be resolved by reference to a fixed set of rules and not by reference to some purpose of those rules.”); Merrill, supra note 25, at 230 (“At the methodological level, the formal/functional dichotomy parallels the familiar division in law between rules and standards.”); Ilan Wurman, Nonexclusive Functions and Separation of Powers Law, 107 MINN. L. REV. 735, 743 (2022) (“Strictly speaking, th[e] approach [in this Article] is formalist in method: it reasons from the basis of the Constitution’s text, structure, and history to derive the most probable original meaning of the Constitution’s structural provisions and the rules they create about the nature of governmental functions and how they must be exercised.”) (emphasis added); Morrison v. Olson, 487 U.S. 654, 733 (1988) (Scalia, J., dissenting) (“A government of laws means a government of rules. Today’s decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law.”). ↩︎
27. See, e.g., Gary Lawson, Territorial Governments and the Limits of Formalism, 78 CALIF. L. REV. 853, 859-60 (1990) (“Formalism . . . is an application of originalist textualism to questions of constitutional structure.”); SAIKRISHNA BANGALORE PRAKASH, IMPERIAL FROM THE BEGINNING 5 (2015) (same); Wurman, supra note 26, at 743 (same); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 YALE L.J. 541, 551 (1994) (same). On this view, the “fundamental law of the land” is “the text of the Constitution, as originally understood by the people who ratified [it].” Id. at 551 & n.31 (collecting sources); ROBERT H. BORK, THE TEMPTING OF AMERICA 144 (1990) (“The search is not for a subjective intention . . . . All that counts is how the words used in the Constitution would have been understood at the time.”). Not all formalists are originalists, see, e.g., Joshua C. Macey & Brian M. Richardson, Checks, Not Balances, 101 TEX. L. REV. 89, 98 (2022) (providing non-originalist formalist account), but it remains the standard method of formalist analysis. See Magill, supra note 26, at 1139 n.40 (collecting sources). ↩︎
28. See, e.g., Merrill, supra note 25, at 231 (“A pure formalist embraces what I will call an ‘exclusive functions’ interpretation of the relationship between functions and branches. On this view, each of the three branches has exclusive authority to perform its assigned function, unless the Constitution itself permits an exception . . . and each function is uniquely assigned to one branch.”); Calabresi & Prakash, supra note 27, at 570 (“[T]he [Vesting] Clause’s grant of power to the President is exclusive, not concurrent, and . . . it thus prevents Congress from ever making the administration independent of presidential control.”); HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION 143 (1990) (describing “formalistic theory of separation of powers” as premised in part on notion “that the Constitution allocates certain powers exclusively to the executive branch, thereby denying them to the other two branches”); William N. Eskridge, Jr., Relationships Between Formalism and Functionalism in Separation of Powers Cases, 22 HARV. J.L. & PUB. POL’Y 21, 26 (1998) (noting Justice Scalia’s formalist argument that “the independent counsel statue invades a core ‘executive’ duty that the Constitution vests exclusively with the President, and the Appointments Clause cannot be construed to derogate from that core constitutional rule”) (emphasis added). ↩︎
29. See Lawson, supra note 27, at 858-59 (“The formalist method is concededly easier to describe than to apply, because not all governmental activities are associated with only one particular institution. For example, Congress can resolve disputes concerning government contracts by passing private bills or by entrusting the dispute resolution to courts. The activity can thus be either legislative or judicial, depending upon which institution performs it . . . . The formalist, however, views these areas of overlap among the three constitutional functions and institutions as limited.”); Steven G. Calabresi, The Vesting Clauses as Power Grants, 88 NW. U. L. REV. 1377, 1390 & n.46 (1994) (stating that “any governmental power exercised in our system must be either legislative or executive or judicial: the premises of the system do not allow for the conclusion that a power could be something other than one of these three (or that it could be two of them at the same time)[,]” but then acknowledging that “[t]here are certain kinds of actions, however, which can be undertaken by the executive, but which can also be undertaken by Congress or by the Article III federal courts”); Gundy v. United States, 139 S. Ct. 2116, 2137 (2019) (Gorsuch, J., dissenting) (“While the Constitution vests all federal legislative power in Congress alone, Congress’s legislative authority sometimes overlaps with authority the Constitution separately vests in another branch.”). I expand on this at some length in recent work. See Roisman Limits, supra note 4, at 181-83 (describing formalism’s “overlapping powers problem”). ↩︎
30. See Roisman, Limits, supra note 4, at 192-206 (describing formalism’s incoherent attempts to resolve overlapping power cases). ↩︎
31. See id. at 183-88 (laying out this framework); see also Laurence H. Tribe, American Constitutional Law 297 (2d ed. 1988) (distinguishing between “internal limits on congressional power—limits inherent in the grants of power themselves” and “external limits on congressional power—limits which derive from particular aspects of the separation of powers . . . or from the constitutional structure as a whole, or from specific constraints on congressional power such as those contained in . . . the Bill of Rights”); Richard Primus, The Limits of Enumeration, 124 Yale L.J. 576, 578 (2014) (describing and applying this distinction). ↩︎
32. Primus, supra note 31, at 578. ↩︎
33. Id. ↩︎
34. U.S. Const. art. I, § 8, cl. 3. ↩︎
35. See Roisman, Limits, supra note 4, at 184. ↩︎
36. At least as these amendments are understood today. ↩︎
37. Of course, there will sometimes be debate about the scope of internal power that each branch possesses, but one hope of the framework is to make clear conceptually what it is that our separation of powers debates are about. For more on how this framework operates, see Roisman, Limits, supra note 4, at 183-188. ↩︎
38. See Roisman, Limits, supra note 4, at 184 (“[I]f we are to resolve disputes in [] areas [of shared power] by reference to categorical rules—as formalism is committed to—we must conclude that the grant of power to one branch externally limits the grant of power to another. To do so coherently, then, we need some method to determine which branch’s power ought to do the external limiting and which branch’s power ought to be externally limited . . . . The problem for formalism is that there is no settled understanding of whether the President’s power should be understood to limit that of Congress or the other way around.”); see also id. at 204-06 (arguing that originalist sources have not provided any such rule). ↩︎
39. See, e.g., id. at 184-85. ↩︎
40. See U.S. Const. art. VI, cl. 2 (“This Constitution and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”). ↩︎
41. See Roisman, Limits, supra note 4, at 187-88. ↩︎
42. See id. at 192-206 (addressing various formalist efforts to resolve disputes in areas of overlapping power and explaining that they are inconsistent and cannot be reconciled with formalism’s commitments). ↩︎
43. See Trump v. United States, 144 S. Ct. 2312, 2327-28 (2024). ↩︎
44. See id.; see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) (Jackson, J., concurring). In his opinion, Justice Jackson divided up presidential exercises of power into three categories: (1) When the President acts pursuant to Congressional authorization, “his authority is at its maximum”; (2) When the President acts “in absence of either a congressional grant or denial of authority,” the President operates in a “zone of twilight,” where “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables”; (3) When the President “takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. at 635-37. ↩︎
45. See Roisman, Balancing, supra note 15, at 1363-67 (explaining why this is so). ↩︎
46. Youngstown, 343 U.S. at 637-38 (Jackson, J., concurring). ↩︎
47. See, e.g., David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689, 726 (2008) (“Justice Jackson . . . employed a subtraction metaphor . . . . This image, which suggests a kind of mathematical equation for determining constitutional powers, seems to us unhelpful.”); Louis Henkin, Foreign Affairs and the Constitution 94 n.** (2d ed. 1996) (“When, in case of conflict, one ‘subtracts’ the constitutional power of Congress from that of the President . . . , how does one perform the subtraction, how much Presidential power remains, and what actions does it justify?”). ↩︎
48. Youngstown, 343 U.S. at 637 (Jackson, J., concurring). ↩︎
49. Id. at 640; see also id. (“In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress.”). ↩︎
50. To be clear, this is not the only way to read Jackson’s Category Three test. One could read Jackson’s statement that “Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject,” id. at 637-38 (emphasis added), as suggesting a more proactive intervention by courts to prohibit Congress from doing something it otherwise might be able to do when the Court determines that Congress has impermissibly interfered with the President’s power. In my view, the language is not dispositive either way, but the approach given in the text above strikes me as, at a minimum, a plausible reading of Jackson’s framework. If, on the other hand, we were to read Jackson’s opinion as requiring the identification of areas where the President’s power limits power that Congress otherwise possesses, we would need some method to determine when the President’s power ought to prevail over Congress’s rather than Congress’s prevailing over the President’s. But Jackson’s opinion does not provide such a method. See Roisman, Balancing, supra note 15, at 1364-65 (discussing Jackson’s lack of guidance as to how much interference is permitted and how much is not); see also supra note 47 and accompanying text (discussing scholarly critiques of subtraction metaphor as unhelpful). In other words, if the majority were to adopt this more assertive reading of Jackson’s opinion, this still would not provide any guidance—let alone a formalist rule—for when the President’s power is “exclusive,” such that it “disables” Congress’s power, and when it is not. ↩︎
51. See Trump v. United States, 144 S. Ct. 2312, 2332 (2024) (“As for a President’s unofficial acts, there is no immunity.”). ↩︎
52. In terms of noncategorical methods to resolve disputes in areas of overlapping power, I have argued that interest balancing is the best method of the prevailing alternatives. See Roisman, Balancing, supra note 15, at 1370-1400. Separation of powers functionalism provides an alternative method to resolve such disputes. See id. at 1360-63; see also, e.g., Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 577-579 (1984) (discussing functionalism); Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions—A Foolish Inconsistency?, 72 Cornell L. Rev. 488, 492 (1987) (same); Magill, supra note 25, 609 (same). For an explanation of how interest balancing differs form this form of functionalism, see Roisman, Balancing, supra note 15, at 1377-80. ↩︎
53. Trump, 144 S. Ct. at 2328 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring)). ↩︎
54. Cass Sunstein raises a similar issue in his recent commentary on the case. See Cass Sunstein, Presidential Immunity and Democratic Disorder 5 (July 16, 2024) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4896559 [https://perma.cc/TN7E-SXU2] (“By itself, that grant of [the Pardon ‘Power’ to the President] does not tell us much about what, if anything, Congress can do in the relevant domain. To be sure, Congress could not deny the pardon power to the President . . . But could Congress say that certain kinds of crimes could not be pardoned? As a matter of semantics, the text of the Constitution is not clear on that question . . . . If we are originalists, we would . . . ask: According to the original public meaning, did Congress have the authority to limit the kinds of crimes for which pardons would be acceptable? For originalists, that question would require historical investigation.”). ↩︎
55. To be clear, the Court held in 1872 that the pardon power could not be regulated by Congress, but the decision was not clearly based on an original public meaning analysis of the sort to which formalism is ostensibly committed. See United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1872); cf. Sunstein, supra note 54, at 4 (arguing that the Trump Court reads Klein more broadly than necessary). ↩︎
56. See Roisman, Limits, supra note 4, at 188, 197-200 (discussing debate and collecting sources). ↩︎
57. Trump, 144 S. Ct. at 2328. ↩︎
58. 140 S. Ct. 2183 (2020). ↩︎
59. Trump, 144 S. Ct. at 2328. ↩︎
60. See, e.g., Calabresi & Prakash, supra note 27, at 592-93 (noting Congressional power to create one-year terms, thereby necessitating annual Senate confirmation); Aditya Bamzai & Saikrishnia Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756, 1792, 1814 (2023) (stating that Congress may set tenure limits on executive offices and disestablish offices to remove officers). ↩︎
61. [1] See, e.g., Manning, supra note 26, at 1967-68 (“[O]ne cannot establish a constitutional violation simply by showing that Congress has constrained the way ‘[t]he executive Power’ is implemented. To conclude otherwise would be to condemn familiar statutes that structure and constrain the implementation of executive authority, for example, by prescribing administrative procedures for executive agencies, setting term limits, for their officers, or protecting executive functionaries from various forms of discrimination.”) (citations omitted); Calabresi & Prakash, supra note 27, at 592 (“[W]hen Congress provides the President with assistants and officers and with Cabinet departments, it has broad latitude to tell these mere creatures of statutory law how, and on what matters, they will be available to help the President in executing federal law.”); id. at 593 (“Congress may structure the administration of the government in a whole host of . . . ways . . . .”); E. Garrett West, Congressional Power over Office Creation, 128 Yale L.J. 166, 171 (2018) (“Textually, the Appointments Clause and the Necessary and Proper Clause together give Congress exclusive power over office creation.”); Andrew Coan & Nicholas Bullard, Judicial Capacity and Executive Power, 102 Va. L. Rev. 765, 788-89 (2016) (discussing “myriad forms” through which Congress can interfere with presidential control of the executive branch, including Congress’s power to “alter an agency’s structure or jurisdiction, cut agency personnel, require agencies to give notice before taking action, mandate consultation with other agencies, require congressional review of proposed rules, order performance reviews, threaten special hearings, and cut or impose conditions on funding”); Aaron L. Nielson & Christopher J. Walker, Congress’s Anti-Removal Power, 76 Vand. L. Rev. 1, 27-28 (2023) (discussing Congress’s “anti-removal power”); Roisman, Limits, supra note 4, at 18-21; 36-41 (discussing this issue). ↩︎
62. See Roisman, Limits, supra note 4, at 188, 192-94, 197-200 (expanding on this argument). ↩︎
63. See also id. ↩︎
64. Trump v. United States, 144 S. Ct. 2312, 2328 (2024). ↩︎
65. 576 U.S. 1, 30 (2015). ↩︎
66. I have expanded on how Congress has numerous internal powers that can affect recognition in prior work. See Roisman, Limits, supra note 4, at 189-90; Roisman, Balancing, supra note 15, at 1396-99; see also Michael W. McConnell, The President Who Would Not be King: Executive Power under the Constitution 293 (2020) (“If . . . Congress passed a law declaring that imports from Jerusalem would be taxed as imports from Israel and counted against Israel’s import quota, it is hard to believe that the President’s Recognition Power would render that law unconstitutional.”). ↩︎
67. At times, the opinion can be read as drawing the relevant lines based on a “core/periphery” distinction, pursuant to which an exercise of the President’s “core” power overrides any exercise of Congress’s power. See Trump, 144 S. Ct. at 2327 (referring to President’s power as “core”). But it is not clear what principled basis, if any, the Court is using to differentiate between “core” powers that cannot be overridden and more peripheral powers that potentially can, nor is it clear why the President’s “core” powers ought to trump “core” powers Congress might possess. Cf., e.g., id. at 2379 (Jackson, J., dissenting) (“[T]he majority does not—and likely cannot—supply any useful or administrable definition of the scope of [the President’s] ‘core.’ . . . [T]he Constitution’s text is no help either; Article II does not contain a Core Powers Clause. So the actual metes and bounds of the ‘core’ Presidential powers are really anyone’s guess.”). For example, it is not obvious why the recognition power is any more “core” than Congress’s passport power; nor is it clear why removal would be considered “core,” but Congress’s office creation power would not be. Indeed, office creation was a formerly royal prerogative power conspicuously and explicitly given to Congress, see McConnell, supra note 66, at 68 (discussing office creation power), whereas the President’s removal power is not mentioned in the Constitutional text. The inability to distinguish between “core” and “peripheral” powers in a non-subjective way is one reason formalists have historically critiqued such core/periphery distinctions. See, e.g., Saikrishna Prakash, Regulating Presidential Powers, 91 Cornell L. Rev. 215, 236-37 (2005) (reviewing Harold J. Krent, Presidential Powers (2005)) (arguing against adopting core/periphery distinction). In sum, like the use of the term “exclusive,” the label “core” is perhaps best understood as the outcome of the Court’s decision to prioritize the President over Congress, rather than the reason for that decision. ↩︎
68. See U.S. Const. art. I, § 3 (providing for Congress’s impeachment power); id. art. II, § 2 (providing for President’s pardon power). ↩︎
69. See Roisman, Limits, supra note 4, at 180. ↩︎
70. See id. at 188-191. ↩︎
71. See id. ↩︎
72. See id. at 192-206. ↩︎
73. Trump v. United States, 144 S. Ct. 2312, 2328 (2024). ↩︎
74. Id. at 2329-30 (citations omitted). ↩︎
75. Id. ↩︎
76. Id. at 2331. ↩︎
77. See Roisman, Balancing, supra note 15, at 1370-77 (laying out how interest balancing works and establishing its separation of powers pedigree). Interest balancing continues to be used in executive privilege disputes, including recently, see, e.g., Trump v. Mazars, 140 S. Ct. 2019, 2033 (2020) (rejecting the President’s suggested approach to executive privilege for “not tak[ing] adequate account of . . . significant congressional interests”), but the formalist Court has not explained why it is permissible there, but not in other areas. See Roisman, Balancing, supra note 15, at 1351. ↩︎
78. 433 U.S. 425 (1977). ↩︎
79. Id. at 441 (“We reject at the outset appellant’s argument that the Act’s regulation of the disposition of Presidential materials within the Executive Branch constitutes, without more, a violation of the principle of separation of powers . . . . Appellant’s argument is . . . based on an interpretation of the separation of powers doctrine inconsistent with the origins of that doctrine, recent decisions of the Court, and the contemporary realities of our political system.”). ↩︎
80. Id. at 443 (citations omitted). ↩︎
81. See Roisman, Balancing, supra note 15, at 10; see also, e.g., Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 Mich. L. Rev. 391, 423-24 (2008) (“[There is a] standard two-step structure of rights adjudication employed throughout the modern constitutional world. The first step consists of determining whether a constitutional right has been infringed; the second step of whether the government can justify infringing the constitutional right.”). ↩︎
82. See Roisman, Balancing, supra note 15, at 1380-91 (discussing interest balancing’s benefits and costs and ultimately concluding it is the best of the prevailing alternatives). ↩︎
83. See Trump v. United Staes, 144 S. Ct. 2312, 2329-32 (2024). ↩︎
84. Id. at 2320. ↩︎
85. See id. at 2361 (Sotomayor, J., dissenting) (“It is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes.”). ↩︎
86. Morrison v. Olson, 487 U.S. 654, 689-90 (1988) (emphasis added). ↩︎
87. See Roisman, Balancing, supra note 15, at 1362, 1393. ↩︎
88. See id. at 1363 n.133 (explaining that one way to understand Morrison v. Olson is as an application of rudimentary interest balancing). ↩︎
89. Seila L. v. CFPB, 140 S. Ct. 2183, 2235 (2020) (Kagan, J., dissenting) (emphasis added); see also id. at 2233 (“[W]e have repeatedly upheld provisions that prevent the President from firing regulatory officials except for such matters as neglect or malfeasance. In those decisions, we sounded a caution, insisting that Congress could not impede through removal restrictions the President’s performance of his own constitutional duties.”) (emphasis added). ↩︎
90. See id. at 2238 (“No one had a doubt that the new agency should be independent . . . . Congress has historically given—with this Court’s permission—a measure of independence to financial regulators like the Federal Reserve Board and the FTC.”). ↩︎
91. See Trump v. United States, 144 S. Ct. 2312, 2362-67 (2024) (Sotomayor, J., dissenting). ↩︎
92. We see this, for example, in debates over rights jurisprudence. See Roisman, Balancing, supra note 15, at 1371-72, 1381-82 (“This task is not always simple, but it is the same analysis that courts and other decision-makers routinely engage in as part of rights analysis . . . .”). ↩︎
93. See id. at 1380-86. ↩︎
94. See id. at 1380-82 (explaining that “interest balancing accepts that both branches might have power to act and asks whose interest ought to prevail”). ↩︎
95. See id. at 1382-84 (“Under formalist methods, resolving disputes is all or nothing. If the President prevails in one dispute, they have exclusive power over the matter forever. Conversely, if the President loses, they have no exclusive power over the matter forever. This dramatically raises the stakes of any given dispute. Interest balancing avoids this trap.”); cf. Jamal Greene, Foreword: Rights as Trumps?, 132 Harv. L. Rev. 28, 62-63 (2018) (making analogous point in favor of a noncategorical proportionality approach over a categorical approach to rights adjudication). ↩︎
96. See Roisman, Balancing, supra note 15, at 1384 (“Interest balancing thus provides less incentive to find exclusive powers to prevail, lowers the stakes of each dispute, and avoids the requirement that we glean exclusive powers from the vague constitutional text to resolve disputes.”). ↩︎
97. Id. at 1384-85; cf. Greene, supra note 95, at 84; Josh Chafetz, Multiplicity in Federalism and the Separation of Powers, 120 Yale L.J. 1084, 1122 (2011) (reviewing Alison L. Lacroix, The ideological Origins of American Federalism (2010)) (“[Forcing contending institutions], as part of their project of winning the political battle, to make public, principled, constitutional arguments [has] a great deal of republican virtue . . . .”); cf. Anya Bernstein & Glen Staszewski, Populist Constitutionalism, 101 N.C. L. Rev. 1763, 1767-74 (2023) (discussing similar benefits under conception of “agonistic republicanism”). ↩︎
98. See Roisman, Balancing, supra note 15, at 1385 (“By making resolution depend on the reasons behind particular governmental action, interest balancing makes the relationship of a given action to good government relevant to who should prevail. This encourages the sort of public deliberation about governance that we want to stimulate.”). ↩︎
99. See id. at 1385-86 (arguing interest balancing values the Constitution’s structure while remaining operable). ↩︎
100. See id. at 1386. ↩︎
101. See id. at 1385-86 (explaining interest balancing can allow for a fluid approach). For recent work emphasizing the desirability of fluidity in separation of powers analysis, see, for example, Nikolas Bowie & Daphna Renan, The Separation-Of-Powers Counterrevolution, 131 Yale L.J. 2020, 2028-29 (2022) (“As a principle of constitutional governance, the separation of powers is historically contingent, institutionally arbitrary, and inherently provisional.”); Josh Chafetz, Congress’s Constitution, 160 U. Pa. L. Rev. 715, 769-70 (2012) (“Conflict, tension, and tumult may be precisely what produces good government; easy, authoritative resolution may be the mark of dysfunction.”). ↩︎
102. See id. at 1387-91 (discussing objections to interest balancing on subjectivity, infeasibility, and instability grounds). ↩︎
103. See id. (explaining how formalism also requires subjective analysis and has thus led to instability). ↩︎
104. See Roisman, Limits, supra note 4, at 192-206 (showing the incoherence of formalist attempts to resolve disputes arising in areas of overlapping power). ↩︎
105. See id.; see also id. at 180 (“For example, when discussing overlapping powers over law execution, formalists implicitly acknowledge areas of overlapping power, but then provide a series of arbitrary external limits to resolve disputes in them.”). ↩︎
106. See generally Roisman, Balancing, supra note 15. ↩︎