This Article examines a novel separation of powers issue that the Supreme Court has never directly addressed: the existence and practices of the United States Marshals. The United States Marshals serve an executive branch function—law enforcement—yet are often directly overseen and commanded by the judicial branch. In the United States federal government system—in which the executive and judicial branches are designed to act independently—the control the federal courts exercise over the marshals raises separation of powers concerns. Since no court has decided what test should apply when federal courts vicariously exercise executive power, this Article applies several separation of powers tests to the organizational command structure of the marshals. These tests derive from unitary executive theory, the nondelegation doctrine, and the non-Article III adjudication doctrine. Each of these doctrinal areas involve circumstances where one branch exercises the power of another. By applying the various Court-created tests, this Article reveals the common features and parallel results of the various tests and discusses the broader implications of those similarities. Despite the different names the Court uses, each test fundamentally comes down to balancing convenience of governance against the danger of aggrandizing one of the three branches. It behooves the Court to consolidate the numerous tests and create a unified separation of powers doctrine.
Recommended CitationEmile Katz, Grand Unified (Separation of Powers) Theory: Examining the United States Marshals, 42 Pace L. Rev. 322 (2022)
Available at: https://digitalcommons.pace.edu/plr/vol42/iss2/3