Does the Separation of Powers Protect Liberty?

Notes On The Conservative Legal Imagination

If there is any rationale for the constitutional separation of powers that has achieved pride of place during the Roberts Court, it is that the separation of powers protects individual liberty. The idea is an old one, appearing as one of many rationales for the separation of powers. But in its current hypertrophied form as the master rationale, primus inter pares, it is often cited to a concurrence by Justice Anthony Kennedy in the 1998 decision in Clinton v. New York. Kennedy urged that “[l]iberty is always at stake when one or more of the branches seek to transgress the separation of powers.” In 2011, now writing for the Court in Bond v. U.S., Kennedy made clear that although the proximate effect of the separation of powers is to protect branches of government from incursion by other branches, the ultimate point is that “the structural principles secured by the separation of powers protect the individual.”

Kennedy’s libertarian interpretation of the separation of powers has since been taken up enthusiastically in any number of opinions during the Roberts Court, both majority opinions and separate concurrences and dissents, especially by the Chief Justice and Justices Gorsuch, Kavanaugh, and Thomas. Although Justices occasionally suggest that what is at stake is “the liberty of all the people,” as Justice Alito wrote for the Court in 2021 in Collins v. Yellen, far more often the focus is on “individual liberty” or “personal liberty” — the liberty of the moderns, not of the ancients. For argument’s sake, I will assume the validity of the Court’s negative and individualistic conception, in order to focus on the question whether the separation of powers protects liberty so understood.

The problem with the individual-liberty rationale for the separation of powers is that it tries to elevate a contingency, a happenstance, into a master principle. The separation of powers is only contingently and accidentally related to individual liberty. Sometimes, the separation of powers “protects liberty”; sometimes, it does the opposite, by preventing action by one or more branches that aims to remove national prohibitions on liberty, or that aims to protect liberty from threats by actors outside the federal government, such as the states. What the separation of powers really does is to raise the costs of new lawmaking, and this protects the legal status quo ante, whatever that status quo may be. By requiring the formal consent of an array of complex institutions, composed of different memberships, acting on different principles, and (often) controlled by different political factions, the separation of powers places a drag on any new action by the national government, including de-regulatory and liberty-promoting action.

Here is a rough analytic schema of cases in which the separation of powers, far from protecting individual liberty, instead tends to freeze in place legal prohibitions on individual liberty:

(1) Horizontal separation of powers. One branch attempts to remove a national-level legal prohibition, only to be blocked by one or more other branches. Suppose, for example, that Congress attempts to repeal a federal criminal law, or a burdensome agency regulation, only to have the bill vetoed by the President, a veto that Congress may lack a sufficient supermajority to override. (Of course, even if Congress does happen to muster the votes to override, that does not mean the separation of powers had no effect. In formal terms, the veto raises the necessary majority to enact the legislation, and in practical terms, vetos are rarely overridden). Thus in 2023 President Biden vetoed a Congressional resolution that would have overturned an EPA rule on wetlands and waterways, which Republicans had criticized as overly stringent. Or suppose Congress and the President agree on the repealing law, only to have the Supreme Court declare it unconstitutional — a decision that cannot be overridden short of a constitutional amendment.

(2) Vertical separation of powers (federalism). Suppose that states have enacted legal prohibitions or remedies that curtail individual liberty. As compared to a hypothetical baseline of unitary government, such as either a pure parliamentary system or a system centered on strong executive governance, a system of separated powers at the national level raises the costs of enacting national legislation or of creating pre-emptive national administrative regulation. It thus makes it more difficult to create law at the national level that aims to remove liberty-restricting prohibitions or burdensome legal rules created at the state level. In 1996, President Clinton vetoed the “Product Liability Fairness Act,” which would have limited punitive damages against manufacturers in state civil trials.

(3) “Private” threats to liberty. Somewhat more contentiously, new lawmaking may remove threats to liberty by “private” third parties that would otherwise obtain. Imagine a government that undertakes a program of aggressive new crime-reduction legislation that enables ordinary citizens to freely walk the streets in safety, when they could not before. Has “liberty” been curtailed, even taking liberty in the Court’s sense? If new administrative regulation makes it harder for sophisticated malefactors to defraud ordinary people who invest in the stock market, the same question applies.

(4) The administrative state. Finally, consider cases in which the legal status quo ante features a scheme of administrative regulation, enacted some time ago. The relevant agency now wishes to undo all or part of the extant regulation, and interprets its organic statute as giving it the authority to do so. Under the recent Loper Bright decision, which replaced the pre-existing Chevron regime, the courts will at least in theory pose more of an obstacle to the agency’s de-regulatory action than they did before.¹ By fortifying judicial review of agencies’ statutory authority, Loper Bright hampers de-regulatory agency action as well as new affirmatively regulatory action.

Experience suggests that legal conservatism — or at least the libertarian-inflected version of legal conservatism currently prevalent — is especially resistant to recognizing or even perceiving this last type of case, so let me offer a concrete example. Recently, after the decision in Loper Bright overruled the Chevron decision and said that courts should interpret regulatory statutes without deference, “de novo,” a panel of the Eighth Circuit decided a case in which the plaintiff challenged a rule issued by the Surface Transportation Board.² Distilling away the complications, the aim of the rule was to alleviate regulatory burdens on all parties by simplifying and streamlining the process for challenging the reasonableness of rail carrier rates, in cases in which a full formal hearing would be too costly given the stakes of the case — costly not only for the challengers, but for the regulated carriers themselves. The panel, citing Loper Bright, reviewed the Board’s statutory authority de novo and held that the challenged rule was inconsistent with that authority. The panel, in other words, rejected an agency’s attempt to lighten regulatory burdens. Increased judicial scrutiny of agency action under Loper Bright is a sword with two edges, hampering new de-regulatory initiatives as well as new regulation.

Conceptually speaking, the taxonomy I have outlined occupies a substantial area of the total space of possibilities. Of course, the opposite cases, in which new lawmaking places new restrictions on liberty, are also possible. But they are just one side of the coin, which is the point. Empirically speaking, no one really knows how often which type of situation occurs or what proportion of the whole each type constitutes. But one thing we do know is that if and when the legal status quo ante is already thick with regulation, there is no reason to believe that strengthening the barriers to new lawmaking will necessarily or even systematically protect liberty; there may be little liberty left to protect, as legal conservatives themselves suggest, a point to which I return shortly. Rather the effect of raising the costs of new lawmaking will tend to freeze current prohibitions in place.

Of course, it is possible to say, with a specious air of thoughtfulness, “in my judgment, cases in which the separation of powers does protect liberty predominate.” But such a belief is ideological in the strict sense. Even if it happens to be true, no one has adequate warrant to believe that it is; it is not a justified belief whether or not true. Indeed that sort of ungrounded, pseudo-thoughtful judgment reinforces, rather than undermining, the point that the relationship between the separation of powers and liberty protection is entirely contingent. If one is reduced to raw counting of cases, it is because there is no necessary relationship between liberty and the separation of powers, nor is there even any identifiable causal mechanism that would create a structural propensity for the separation of powers to systematically protect liberty on the whole.

Because the separation of powers just protects the legal status quo, whatever the content of that status quo may be, the whole idea that the separation of powers “protects liberty” ought to strike us as distinctly odd. It is as though a mad scientist says: “I have identified a chemical that we will add to the public reservoirs. Its effect is to cause the subject to repeat today whatever he did yesterday. Therefore,” Dr. Evil adds with a triumphant flourish, “the chemical will reduce crime!” The right response is puzzlement; after all, one needs to know what the subjects were doing yesterday. If crime was already high, the chemical guarantees that it will continue to be so in the future. So too with the legal buffer around the status quo that we call the separation of powers.

If all this is right, why do current and former Justices such as Gorsuch, Kennedy, and Thomas, among others, so often say that the protection of individual liberty is the central rationale for the separation of powers? My speculation is that it has to do with the implicit background imaginary widespread within the conservative-libertarian legal movement. In this picture, the status quo ante is assumed or imagined to be a state of “freedom,” and “the government” presents an overweening threat. Often, this kind of assumption is accompanied by gestures towards the Founding Era, with the implicit claim that the status quo as of 1789 was a paradise of legal liberty, from which we have now fallen.

Of course almost every element of this implicit picture is ungrounded, either conceptually or in virtue of the development of American legal institutions. It is no longer 1789, and the status quo is no longer libertarian (not that it ever was, but put that aside). If the legal status quo is pervasively and oppressively liberty-restricting, then change to the law is, from the standpoint of liberty, a good thing. The conservative-libertarian imaginary fundamentally conflates the issue of novelty with the issue of liberty.

Rather oddly, legal conservatives not only believe that the separation of powers protects liberty, but also commonly believe that we currently have “too much law” and regulation, as Justice Gorsuch has recently argued. But these two beliefs are at odds with one another. If we are already drowning in law, then Gorsuch ought to favor reducing, not raising, the cost of altering the legal status quo ante; after all, things can get no worse and might get better. He should for example favor, at least at the margins, a relatively flexible jurisprudence of separation of powers that accommodates new forms and methods by which Congress, the President, or the agencies can act to liberate private actors from the dead hand of prior regulation. He ought to favor broad administrative authority to interpret or re-interpret statutes in de-regulatory ways — which was, as many have noted, the original effect of the now-overruled Chevron decision, and one reason why many legal conservatives initially supported Chevron. If Gorsuch is worried that the status quo is an oppressive blanket of regulation, he should have joined the dissenters in the recent Loper Bright decision, rather than erecting higher barriers to change in the regulatory landscape.

But logical consistency is powerless against a fervent vision, and the picture of “the government” as menacing an extant status quo of primordial liberty has an incredibly tenacious grip on the conservative-libertarian imagination. Only some irruption from reality will be able to loosen it. If, for example, the Court starts to see a stream of cases like the Eighth Circuit decision, mentioned above, in which lower courts interpret statutes de novo in ways that prevent de-regulatory administrative action, then the majority may have cause to regret its assumptions. Or, and relatedly, should a new administration with a de-regulatory orientation take power, in the Presidency and perhaps in Congress as well, one might see the Court’s current majority start to realize that “individual liberty” stands in an irreducibly ambiguous relationship to the separation of powers.

1. I’ve argued elsewhere that Loper Bright is best understood to recast Chevron deference as an inquiry into delegation, and hence that Loper Bright is likely to make less of a difference than the initial, overheated reactions suggest. I bracket that point here to make a separate one: to whatever extent Loper Bright turns out to increase the intensity of judicial scrutiny, that scrutiny will hamper new de-regulatory, liberty-promoting agency action as well as new agency regulation.

2. Union Pacific Railroad Co. v. Surface Transportation Board, No. 23-1325 (August 20, 2024).