BALANCE OF FORCES: SEPARATION OF POWERS LAW IN THE ADMINSTRATIVE STATE

Vol. 16 No. 7 (July, 2006) pp.558-560

BALANCE OF FORCES: SEPARATION OF POWERS LAW IN THE ADMINSTRATIVE STATE, by Harold H. Bruff. Durham, North Carolina: Carolina Academic Press, 2006. 560pp. Cloth. $55.00. ISBN: 1594601291.

Reviewed by Joseph L. Smith, Department of Political Science, The University of Alabama. Email: josmith [at] bama.ua.edu.

Harold Bruff’s BALANCE OF FORCES: SEPARATION OF POWERS LAW IN THE ADMINISTRATIVE STATE provides a very comprehensive (even encyclopedic) and thorough description of the legal structure of the US systems of separation of powers and checks and balances. This book is an excellent source of information on the theoretical basis of the system of separated powers, how it has worked in practice over the history of the US, and court decisions interpreting and structuring the relations among the branches.

The book is written in an engaging style. Historical episodes are described in lively ways, and legal jargon is explained thoroughly in terms that non-lawyers can understand. The branches are not discussed in isolation; Bruff emphasizes that the limits of one branch’s powers define the borders of other branches’ autonomy. In each of the areas it covers, the book describes notable controversies, historical disputes, and relevant court decisions. I cannot think of a single area of potential controversy over the powers of the three branches that is not thoroughly covered.

In relation to the executive branch, Bruff discusses (among other subjects) the limits of executive authority under statutes and the Constitution, the scope of the president’s authority to act by executive order, the circumstances under which the president’s actions are subject to review by the courts, the scope of the various legal doctrines that insulate presidential actions from such review, the presidential veto, and presidential discretion over government spending.

In relation to Congress, the book’s subjects include the limits of congressional power to delegate to other branches, Congress’ role in the appointment and removal of judges and executive branch officials, Congress’ right to manipulate the jurisdiction of the federal courts, control over government spending, Congress’ authority over its own membership, privileges, and procedures, and congressional authority to regulate and investigate presidential actions.

With regard to the judiciary, Bruff covers approaches to legal analysis of separation of powers issues, the appropriate role of courts in enforcing the principles of separation of powers (including threshold questions that allow courts to avoid disputes), the role of courts in impeachment proceedings, doctrines that protect judicial autonomy and doctrines that shield particular information from judicial inquiry.

Unlike the list of subjects above, the book is organized around four principles that Bruff asserts should structure the [*559] separation of powers system: insuring executive compliance with statutes, balancing the autonomy and accountability (with an emphasis on accountability) of each branch, maintaining the separation between executive and legislative personnel, and maintaining the overall balance of powers among the branches. These principles are quite broad, and Bruff’s theoretical argument is not explicitly emphasized in his descriptions of the various areas of controversy. Nor does the book routinely contrast Bruff’s approach to these controversies with other approaches. Therefore, the theoretical element of the book, though present, is subordinated to description. This is not a weakness. An overtly theoretical treatment of these controversies would be difficult, given the vast number and variety of subjects the book covers. Trying to maintain a focused theoretical argument throughout would distract the reader and steer the author towards shoehorning events into a narrow theoretical frame.

For most political scientists, this book will offer two primary benefits. First, its comprehensive treatment of separation of powers controversies will inform theory-building about how the branches interact and how controversies are resolved. Bruff’s descriptions of controversies are a valuable database, showing which branches have pushed particular understandings of the system in specific contexts. Also, his exhaustive coverage of inter-branch disputes means that almost every reader will be introduced to some disputes for the first time and will learn more about other disputes.

Second, the book presents a legal perspective on the disputes considered. In his descriptions of episodes and disputes related to the separation of powers, Bruff emphasizes constitutional theory, precedent, the unique characteristics each branch, historical practice, and implications for the health of the political system. His presentations take seriously the legal and constitutional arguments put forth by contestants in these disputes (Although it is true that in the last decade or so historical institutionalists within Political Science have considered many of the same types of factors upon which Bruff focuses). Factors that political scientists have tended to emphasize, such as public opinion, interest groups, elections, and the motivations of the various actors, are rarely considered. Understanding this perspective will help political scientists broaden their understanding of separation of powers and allow them to confront arguments made by legal academics.

Although this text is very valuable, there are ways that it could have been improved. The opening sections are not sufficiently integrated into the book’s core, which consists of descriptions of separation of powers controversies. The first three chapters contextualize the Constitution’s system of separation of powers and provide abstract descriptions of methods of interpretation. The book opens with a history of the idea of separation of powers, starting with its origins in Greece and Rome and its treatments by Locke and Montesquieu. It then describes the way that these ideas were understood and implemented in the American colonies, the Articles of [*560] Confederation, and the US Constitution. Although this material is relevant, the themes developed in these early chapters are not notably carried through the remainder of the book.

Overall, BALANCE OF FORCES is a valuable reference for anyone interested in historical controversies related to the separation of powers and the way US courts have interpreted the requirements of the Constitutional system of separated powers.

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