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Separation of powers, Recess appointments, Noel Canning


Law and Politics


It sounds odd when stated forthrightly, but most separation-of-powers discussions are largely inattentive to politics. Formalist theories tend to assert that the distribution of powers is set in stone; in contrast, functionalist theories tend to focus on abstract considerations of comparative institutional competence or on ossifying past practice into a "historical gloss" binding the present. Both approaches generally ignore the live political context in which the branches continually compete with one another for decision-making power.

"Pragmatic formalist" hybrids, like that proposed by Ron Krotoszynski in his contribution to the Duke Law Journal's annual administrative law symposium, while broadening the list of factors considered in any given case, nevertheless continue to omit live political contexts and concerns. This brief piece, a response to Krotoszynski's analysis of recess appointments, argues for bringing politics back into separation-of-powers analysis.