In recent commentary on the separation of powers within the United States government, there has been significant discussion concerning the role of the Supreme Court in affirming the principles enshrined within the Constitution. In her initial column, the legal scholar critiqued the perceived abstract application of separation of powers by the Supreme Court, noting that the Constitution does not explicitly contain such a clause but provides specific provisions for separation of powers. Addressing these provisions, the scholar argues for a more nuanced understanding of the lawmaking process that respects the distinct roles of both Congress and the President. This discussion is further explored in detail in her column on SCOTUSblog.
The Supreme Court often describes Congress as if it were the sole entity responsible for creating laws, noted through various examples in 2025, where Justices such as Sonia Sotomayor and Amy Coney Barrett commented on Congress’s legislative intentions. Such references may unintentionally marginalize the President’s critical role in the legislative process. For instance, the presentment clause and the recommendations clause of the Constitution empower the President to significantly influence legislature from initial proposal to potential veto. This indicates a unified legislative system involving multiple branches of governance, not just Congress.
The scholar posits that addressing this oversight is more than a mere exercise in semantics. She asserts that judicial interpretations emphasizing “Congress alone” risk skewing interpretative outcomes, underscoring the necessity of considering presidential input alongside congressional intent. This perspective necessitates a reevaluation of doctrines like the nondelegation and major questions doctrines, which currently risk underappreciating the President’s role and influence in legislative proceedings.
Furthermore, the call to acknowledge both Congress and the President in statutory references might compel the executive branch towards greater cooperation with Congress, thereby facilitating a balance reflective of constitutional design. Such a shift would acknowledge the nuanced governmental interplay foreseen by the framers of the Constitution. For those interested in further analysis on legislative processes and judicial doctrines, the detailed articulation can be accessed in the author’s extensive discussion and forthcoming articles, as outlined on the referenced SCOTUSblog page.