Separation Of Powers In Practice.

Vol. 14 No.11 (November 2004), pp.929-932

SEPARATION OF POWERS IN PRACTICE, by Tom Campbell. Stanford: Stanford University Press, 2004. 248pp. Cloth $55.00. ISBN: 0-8047-4736-9. Paper $21.95. ISBN: 0-8047-5027-0.

Reviewed by Chad Westerland, Department of Political Science, University of Arizona. Email: cwesterl@email.arizona.edu

Tom Campbell possesses an almost unique perspective on the mechanics of American government. Rarely is preeminence as a legal scholar coupled with 10 years of service as a member of the U.S. House of Representatives and two years as a state senator. SEPARATION OF POWERS IN PRACTICE explicitly draws from Campbell’s experiences as a legislator and seeks to serve as a guide to the proper domains of action for the federal branches of government. While Campbell has much to offer, his description of the various institutional capabilities raises several serious concerns that ultimately bring into question his recommendations.

After his introductory chapter, providing a clear outline for how the book will proceed, Chapter 2 specifies what Campbell takes to be the relative advantages and disadvantages of the judicial, legislative, and executive branches of the federal government. Campbell’s argument is straightforward: not all branches are created equal. Institutions have different strengths and, just as importantly, weaknesses. As a result, assessment of how well the federal government works requires assessment beyond policy outcomes. Who is responsible for an outcome is the central concern for Campbell, because certain institutions will be able to handle some issues better (or worse) than others. Campbell is not interested in offering policy solutions; rather, the purpose of the text is to prescribe who should be making public policy and when. This is the key to Campbell’s argument, since the prescriptions are grounded in his assessment of the qualities of the three branches.

For Campbell, the judicial branch is best equipped to protect explicitly stated individual constitutional rights because the Supreme Court is insulated from electoral politics. Job security allows justices to protect what Campbell calls unpopular, but nonetheless constitutional, rights. Any deviation from this task, however, and the Court will jeopardize its institutional advantages. Attempts by the Court to gather any information beyond that gleaned from evidentiary procedures will be fruitless, which means that the Court is unreliable in attempts to balance competing social interests. Campbell also considers the Court’s reliance upon stare decisis and on the need for justiciable cases as institutional disadvantages.

Campbell sees numerous advantages in the legislative branch. Congress can tackle almost any issue it wants; it is flexible in how it can approach problems (in particular, Congress is not bound by past decisions); it is in the best position to gather the information necessary to [*930] pass legislation that appropriately balances between different interests; and Congress can “express the will of the people” (p.23). Disadvantages in the legislative process include the tendencies to ignore constitutional rights and to engage in non-deliberative decision making. Congress is also unable to administer justice, as it is constitutionally prohibited from passing ex post facto laws.

Campbell sees only one clear advantage to the executive branch—its flexibility in responding to policy issues. Federal agencies can be created, and executive orders can quickly and cheaply create rules. Campbell considers executive discretion over the enforcement of laws and the appropriation of funds to be a disadvantage because both represent “the assertion of a nullification power beyond the power to veto a law, and hence, in my view, impermissibly intrudes upon the legislative branch” (p.25). He also finds the executive decision making process to be dangerously removed from the public’s view, which is exacerbated in part by the lack of an institutional mechanism to reveal dissenting views.

The next three chapters further explore salient institutional features of Congress and the Supreme Court. Chapter 3 has two major points: first, manipulation of legislative rules equates to the manipulation of outcomes; and second, members of Congress have a duty to take their Article VI oath requirement seriously, even though the popular will may not provide the incentive to do so. Campbell offers his take on statutory interpretation in Chapter 4, and the general argument is that deference to Congress is paramount. For Campbell, the choice of ground rules for interpretation matters because Congress needs to know how its laws will be interpreted. Congress, he asserts, should express its will as clearly as possible so as to preempt judicial interpretations that can and often do change statutory meaning from what was intended. Chapter 5 briefly explores the role of stare decisis in judicial decision making. Campbell finds stare decisis to be unduly restrictive and unnecessary, since the common law provides predictability in outcomes that is purportedly the most positive attribute of stare decisis. Justices, according to Campbell, are not actually bound by this, and any pretense that they should be confined by past decisions only interferes with their work and should be dropped.

The rest of the text is devoted to a discussion of how these structural features can be used to evaluate judicial, legislative, and executive actions. Campbell addresses an impressive array of issues—flag burning and obnoxious speech, the creation of the exclusionary rule, affirmative action, the Supreme Court’s interpretation of Title IX in GROVE CITY COLLEGE v. BELL, abortion, civil rights legislation, and the second amendment. These serve Campbell well, as each is selected precisely for the purpose of illustrating the points made in part one. He devotes the final two chapters to methods of inter-branch dispute resolution, with the final chapter being particularly interesting. Campbell argues that legislators should be willing to take the executive to court, and that legislators should not be prohibited from doing so because of a lack of standing. During his stint as a congressman, Campbell, himself, sued Bill Clinton over U.S. involvement in Kosovo (CAMPBELL v. [*931] CLINTON). Most of the chapter is devoted to developing an argument for a change in legislative standing rules, rather than exploring fully the implications of encouraging legislative litigation against the executive branch, but it is nonetheless a fascinating chapter that I am sure is bound to spark serious discussion by all who encounter it.

Campbell’s book is unquestionably interesting, but there are serious problems with the description of the judicial, legislative, and executive branches. I will limit discussion to two primary concerns. First, it is not immediately clear why the subjects for Chapters 3, 4, and 5 were chosen. To be sure, each chapter deals with important institutional features, but they are not always clearly connected to the discussion in Chapter 2. For example, acknowledging in Chapter 3 that the manipulation of agendas determines outcomes raises very serious questions about potential legislative advantages, but this is never deeply explored by Campbell. The topics in these three chapters are clearly not the full set of relevant institutional features of the legislative, judicial, and executive processes (it should be noted that the executive is not discussed in these chapters), but it is not entirely obvious why only these topics are chosen for further consideration.

Campbell is plainly optimistic about legislative action. It is understandable, and frankly encouraging, that a former member of Congress would take a decidedly legislative-centric view. On the other hand, one need not be cynical to question the accuracy of his description of legislative advantages. Most importantly, Campbell never considers how electoral politics structures legislative incentives. This is a critical question, because a major point throughout the book is that the legislative connection to the “will of the people” means other branches should defer to the legislature. Representation is in fact the primary legislative advantage. What if legislators are not so inclusive when calculating the balance among competing interests? Everything Campbell’s Congress does is motivated by a nebulous will of the people—even actions that are not constitutional (as an aside, it may be beyond the scope of Campbell’s study, but the implications of a population who intentionally and frequently wants a legislature to strip it of constitutional rights are not fully considered). The executive branch is the one institution that does have a national constituency, yet it does not seem to enjoy any special advantage from this. At the very least, I think Campbell’s argument suffers from never exploring the possibility that legislative action is motivated by something other than the will of the people.

Finally, because Campbell chooses not to engage the vast political science literatures on separation of powers, legislative process, or judicial behavior, I am unsure how this book would fit into a graduate political science course, even a course dedicated to separation of powers. Some missing citations are actually so noticeable as to be distracting, such as the appendix to Chapter 5 on stare decisis, which is nothing more than a small scale replication of Spaeth and Segal (most recently, 1999). The text could, however, prove to be a fruitful component of a wide range of advanced undergraduate seminars. And more [*932] generally, despite potential objections to the descriptive accuracy of his account, Campbell’s idea that institutional differences should structure how we evaluate the functioning of government is certainly worth taking seriously.

REFERENCES:

Spaeth, Harold J., and Jeffrey A. Segal. 1999. MAJORITY RULE OR MINORITY WILL: ADHERENCE TO PRECEDENT ON THE U.S. SUPREME COURT. New York: Cambridge University Press.

CASE REFERENCES:

CAMPBELL v. CLINTON, 203 F.3d 19 (D.C. Cir. 2000).

GROVE CITY COLLEGE v. BELL, 465 US 555 (1984).

************************************************************