6 - Separation of Powers and Federalism

Summary

This chapter addresses symmetry’s implications for separation of powers and federalism. It suggests that some major structural questions, such as the long-running debate over the president’s authority to fire or “remove” executive officers, hold an intensity out of step with their current political stakes. By contrast, other recent decisions, particularly those limiting agency authority over “major” policy questions and intensively reviewing the reasoned justification for certain policies, threaten to enable selective judicial disapproval of policies favored by progressives rather than conservatives. A preference for symmetry should support limiting or reconsidering these decisions. With respect to federalism, symmetry should likewise encourage the development of doctrines that grant parallel opportunities and protections to rival “red” and “blue” states dominated by either the Democratic or Republican Party.