Dan T. Coenen

Originally uploaded at SSRN.


A cornerstone of the United States Constitution is its separation of powers among the legislative, executive, and judicial branches of the national government. The Framers of the Constitution reasoned that separated powers would guard against tyranny by blocking the undue concentration of authority in any single governmental department. In crafting the Constitution, however, the Framers could not anticipate every dispute their scheme of separated powers might engender. One modern separation-of-powers conflict not specifically anticipated by the constitutional text involves so-called "intracircuit nonacquiescence.”

Intracircuit nonacquiescence occurs when executive-branch decision makers refuse to follow a circuit court's precedents even when acting subject to that circuit's, and no other circuit's, power of judicial review. The Social Security Administration (SSA), for example, long has insisted that it may direct agency adjudicators to apply SSA national standards, rather than local circuit court interpretations of governing statutes, absent a contrary court order in a particular claimant's case. Judges have chafed at this practice, decrying agency disregard of a supervisory circuit court's precedent as defiance of the judicial power "to say what the law is." Executive officials, on the other hand, have defended the practice. They say that the judicial power focuses on issuing judgments in discrete cases, rather than declaring principles that invariably bind a "co-equal branch." They argue further that nationwide adherence to agency rules, even if contrary to some circuit court precedent, (1) creates a salutary uniformity in agency administration of national programs; (2) produces optimum "percolation" of legal issues by facilitating circuit court reconsideration of controversial rulings; and (3) comports with Congress's design that agencies operate as expert administrators of the statutes they are charged to enforce. This clash between executive and judicial decisionmakers has spawned one of the most important modern issues in constitutional and administrative law - and an issue that the Supreme Court has yet to visit.

This Article comprises seven parts. Part I defines intracircuit nonacquiescence, while Part II comments on secondary challenges to the practice based on the fifth amendment's due process clause. Part III then turns to the primary line of attack, rooted in the separation of powers, and criticizes existing analyses that apply this constitutional principle. On the heels of this critique, Part IV proposes a fresh approach by urging courts to evaluate intracircuit nonacquiescence pursuant to the "means/ends" methodology widely used in other constitutional settings. Building on this discussion, Part V advocates so-called "heightened scrutiny" of intracircuit nonacquiescence in light of the demonstrably grave intrusion that practice makes on important separation-of-powers values. Part VI then considers the many justifications offered for intracircuit nonacquiescence and finds each of them wanting under even the less-exacting "intermediate" brand of heightened scrutiny. Finally, Part VII explores whether particular forms of intracircuit on acquiescence - such as nonacquiescence limited to preliminary agency decision makers or during the pendency of Supreme Court review - merit protection even if the practice is otherwise unconstitutional.