“In my inaugural entry for this column, I critiqued the Supreme Court’s reliance on an abstract conception of the “separation of powers.” Because the Constitution does not contain a “separation of powers” clause, but instead contains a collection of specific provisions that enforce the separation of powers in specific ways, I contended that the court should more carefully refer to the specific constitutional provisions that support its decisions. In this second column entry, I would like to bring a similar level of specificity to the separation-of-powers provisions that address the federal lawmaking process. A close look at those provisions indicate that, if the court wishes to better respect the Constitution’s design, the court should abandon its practice of regularly treating Congress as if that branch can unilaterally make law.”
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