Abstract

Contemporary separation-of-powers theory and practice generally rely on two competing theories—formalism and functionalism—to frame and decide contested questions about the scope of each branch’s constitutional power and authority. In some areas, this dichotomy works reasonably well and possesses significant explanatory force. But the dichotomy’s utility is considerably less obvious in the context of the federal appointments process.

The Supreme Court’s recent decision in National Labor Relations Board v. Noel Canning crisply demonstrates the limitations of formalism and functionalism in resolving separation-of-powers questions that equally implicate text, structure, and historical practice. Moreover, Justice Breyer’s Noel Canning opinion deftly transcends the formalism­—functionalism dichotomy even while relying on textual, structural, historical, and practical arguments drawn from both modes of separation-of-powers analysis. Noel Canning teaches that constitutional text, by itself, will not always yield clear or reliable answers to difficult separation-of-powers questions. The decision also highlights a serious shortcoming in formalist legal analysis: When the Constitution expressly vests conflicting powers in different branches—as in the context of staffing the executive branch—purely formalist analysis will not suffice. Simply put, the Framers not only separated powers; they also blended them. In many important areas, the constitutional text does not clearly specify where one branch’s authority ends and another’s begins.

A workable account of the federal appointments process requires careful consideration of structure and practice, of original intent and appointments conventions developed over time, and of the conflicting textual imperatives of the Senate’s advice-and-consent power and of the unitary executive (understood in light of the President’s Article II “take care” duty). In order to develop an effective separation-of-powers jurisprudence, the federal courts must transcend the formalism­–functionalism dichotomy in this important area of separation-of-powers theory and practice. More broadly, the shortcomings of the formalism–functionalism dichotomy in the context of appointments suggest the need to rethink the dichotomy more broadly as well.

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