Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 1 of 1
Full-Text Articles in Law
A Fourth Way?: Bringing Politics Back Into Recess Appointments (And The Rest Of The Separation Of Powers, Too), Josh Chafetz
A Fourth Way?: Bringing Politics Back Into Recess Appointments (And The Rest Of The Separation Of Powers, Too), Josh Chafetz
Cornell Law Faculty Publications
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 …