Negotiating Federalism and the Structural Constitution : Navigating the Separation of Powers Both Vertically and Horizontally (A Response to Aziz Huq)

This essay explores the emerging literature on the negotiation of structural constitutional governance, to which Professor Aziz Huq has made an important contribution in The Negotiated Structural Constitution, 114 Colum. L. Rev. 1595 (2014). In the piece, Professor Huq reviews the negotiation of constitutional entitlements and challenges the conventional wisdom about the limits of political bargaining as a means of allocating authority among the three branches of government. He argues that constitutional ambiguities in the horizontal allocation of power are sometimes best resolved through legislative-executive negotiation, just as uncertain grants of constitutional authority are already negotiated between state and federal actors in the vertical-federalism context. Indeed, at the margins between state and federal authority, executive and legislative authority, and even judicial and political authority — inevitable zones of overlap and spillover emerge, where interpretive choices must be made. The operative constitutional question then becomes who is best positioned to make these interpretive choices. Huq’s analysis of institutional bargaining along the horizontal separation-of-powers dimension adds dimension to an emerging literature on negotiated structural governance more generally. Previously predominated by vertical separation-of-powers analyses in the federalism literature, this new wave of bargaining-literate scholarship emphasizes the usefulness and inevitability of multilateral bargaining as an alternative for allocating constitutional authority in circumstances where unilateral judicial or statutory allocation is suboptimal at best — and counterproductive at worst. Thematic among these new works is the idea that the Constitution does not resolve every structural question, and that certain unresolved structural dilemmas are most capably resolved by negotiation among legislative and executive actors at the local, state, and national levels. Different authors provide different pieces of the new theoretical justification for judicial deference to politically negotiated governance, notwithstanding the Supreme Court’s simultaneous revival of judicially enforceable constraints in many of the same contexts. This essay reviews the unfolding literature on the negotiation of structural governance, analyzing points of conversion and issues of ongoing debate. Overall, scholars of negotiated governance find that bargaining is inevitable because the text of the Constitution cannot account for every possible ambiguity. Moreover, they conclude that political bargaining to resolve ambiguity is valuable when the required decisionmaking does not match the circumscribed skillset of judicial interpreters. Most are skeptical about the value of judicial review as current Supreme Court doctrine prescribes it, but — and in contrast with previous scholarship emphasizing political safeguards — many allow for some judicial role to police the most foreseeable harms associated with political bargaining. The essay concludes with thoughts about structural governance issues warranting further scrutiny in the next iteration of the discourse