The vertical separation of powers

Standard understandings of the separation of powers begin with the concept of function, Professor Nourse argues that function alone cannot predict imp ortant changes in structural incentives and thus serves as a poor proxy for assessing veal risks to governmental structure. To illustrate this point, the Article returns to proposals considered at the Constitutional Conventio n and considers difficult contemporary cases such as Morrison v. Olson, Cli nton v. Jones, and the Supreme Court's more recent federalism decisions. li t each instance, function appears to steer us wrong because it fails to und erstand separation of powers questions as ones of structural incentive and political relationship. In order to move away from function as the sole pro xy for structural risk, the Article suggests a "vertical" approach toward s eparation of powers questions. That approach reconceives departmental power less as the power to perform a set of tasks fitting a particular constitut ional description (e,g, adjudication, execution, legislation) than as a set of constitutionally created political relationships between the people and those who govern them. Put another way, the separation of powers becomes l ess a search for transcendental descriptions of the departments than a mean s of considering how shifting structure affects liberty-how structural ince ntives may incline governmental actors to act toward the people in ways tha t risk the electoral powers of both majorities and minorities.