Why Parties and Powers Both Matter: A Separationist Response to Levinson and Pildes
Responding to Daryl J. Levinson and Richard H. Pildes, Separation of Parties, Not Powers , 119 Harv. L. Rev. 2311 (2006)
In their provocative and instructive article, Separation of Parties, Not Powers, Professors Daryl Levinson and Richard Pildes argue that the traditional principle of separation of powers now, if not throughout our history, takes a back seat to the critical role of powerful and united political parties. They argue that parties, not powers, matter, or more precisely: “The success of American democracy overwhelmed the Madisonian conception of separation of powers almost from the outset, preempting the political dynamics that were supposed to provide each branch with a ‘will of its own’ that would propel departmental ‘[a]mbition . . . to counteract ambition.’” Accordingly, they write, “[f]ew aspects of the founding generation’s political theory are now more clearly anachronistic than their vision of legislative-executive separation of powers.” Accepting this proposition, they claim, yields greater realism in understanding the divide between legislative and executive power, especially on national security issues.
It is futile to argue that political parties do not influence relations between the legislative and executive branches. Clearly, political alliances, both formal and informal, matter. The greater the political cohesion, the less critical separation of powers becomes, and conversely, the more divided the government, the more political structures matter. But parties do not operate outside the framework of Constitutional structures, and these play important roles in determining the fate of legislation, treaties, nominations and Congressional hearings. I shall begin by offering a brief account of separation of powers and then of the closely related but distinct notion of checks and balances. Next, I shall explain how the division of power between the President and the Congress influences political outcomes in general. Third, I shall look at specific interactions between the President and the Congress in two contexts: first, the treaty power in its various manifestations and, second, the inherent power of the President as Commander-in-Chief in several cases arising during the Korean War and the War on Terrorism. My basic thesis is that the conventional tools of constitutional interpretation lead, without any detour into political realism, to a conclusion that Professors Levinson and Pildes defend by much unnecessary labor: the Congress sets the rules, which the President and only the President implements.
119 Harv. L. Rev. F. 210 (2006) | DOWNLOAD PDF
