Functionalist Balance Of Power

The separation of powers is a feature of political philosophy adopted by the American constitutional framers in an effort to ensure the liberty of the people through a balance of power between departments and governments. Contemporary jurisprudence concerning the treatment of the separation of powers is characterized by the dichotomous schools of "Formalism" and "Functionalism", with the former operating under strict lines and deduction and the latter operating through normative balancing tests and inductioni. The question of which approach is more appropriate to use, and when, remains a matter of disputation. Citing the thoughts of the founding fathers as well as relevant Commerce Clause and separation of powers cases, I argue that a functionalist …show more content…
And that framework was a form of government where "ambition must be made to counteract ambitioniii" in order to create, above all else, a secure balance of power; for as Thomas Paine says "the balance of power is the scale of peaceiv." A balance of power such as the one intended by the framers implies a constantly shifting, functionalist balance absent clear lines, as the primary concern is each branch's relative power. Strict lines denote a form of absolute authority in a particular sphere - a quality of government provided by the Vesting Clauses - and so it is imperative that the Supreme Court adjudicate the remaining pertinent court cases based on the premise of ensuring a relative balance of power through a utilization of functionalist reasoning. Such balance is the main issue addressed by the court in U.S. v. Nixon, as Chief Justice Burger writes that "an absolute, unqualified privilege... would plainly conflict with the function of the courts under Art. III" and he goes on to note that that the framers stressed the separateness of the branches, as opposed to their independence. The majority in this case is primarily concerned that allowing the President to possess an unqualified ability to classify information would place him outside of the rule of law, and therefore outside the scope of either Congress or the court. Such a pernicious privilege would necessarily contravene the balance of power in the federal government, creating an Executive that could not be …show more content…
An attempt at such an explicit enumeration and delimitation of the Executive office's powers would have been a Sisyphean task for the majority to undertake, for it would have required them to draw lines in the Constitution that even the original framers were unable to draw. A similar concern over the balance occurs also in the case of Youngstown Sheet & Tube Co. v. Sawyer, where Justice Jackson laid down his three criteria for the judgment of Executive legitimacy when taking certain courses of action. Such boundaries seem formalist on the surface but, taken in light of Chief Justice Black's absolutist majority opinion which ruled that the President may take no action whatsoever unless sanctioned by either Congress or the Constitution, Jackson's concurrence is decidedly functionalist. His provisions were a direct response to the overly formalist dictate made by Black, a dictate which would have rendered the President nothing more than a Congressional lackey. Jackson attempted to circumvent this outcome by creating open-ended limitations in order to provide the President with a degree of latitude when taking action. Had formalist lines been drawn in the foregoing case, the Executive office would have been hamstrung, unable to operate with energy or decisiveness because of both constant micro-management and an inability to act without first entreating Congress. Justice Jackson recognized the