BALANCE-OF-POWERS ARGUMENTS, THE STRUCTURAL CONSTITUTION, AND THE PROBLEM OF EXECUTIVE %26quot;UNDERENFORCEMENT%26quot;

作者：Posner Eric A

来源：University of Pennsylvania Law Review, 2016, 164(7): 1677-1714.

Balance-of-powers arguments are ubiquitous in judicial opinions and academic articles that address separation-of-powers disputes over the President's removal authority, power to disregard statutes, authority to conduct foreign wars, and much else. However, the concept of the balance of powers has never received a satisfactory theoretical treatment. Possible theories of the balance of powers are examined and all are rejected as unworkable and normatively implausible. Judges and scholars should abandon the balance-of-powers metaphor and instead address directly whether bureaucratic innovation is likely to improve policy outcomes. Additionally, implications for the underenforcement controversy are discussed.

• 出版日期2016-6