The separation of powers in the federal government exists to ensure a lack of tyranny in the United States. This Essay grounds the separation of powers in tyranny perpetuated by racialized hierarchy, violence, and injustice. Recognizing the primacy of racial tyranny also reveals a would-be tyrant: the President. Engaging the branches of federal government—including the Executive herself—to empower agencies to check presidents’ base racist impulses would imbue the separation of powers framework with additional meaning and normative force.
Associate Professor of Law, Arizona State University, Sandra Day O’Connor College of Law. Many thanks to Guy-Uriel Charles for inviting me to participate in this symposium. I am particularly grateful for feedback from Aziza Ahmed, Bernie Bell, Rebecca Bratspies, Ming Chen, Sabrina Dycus, Osamudia James, Renée Landers, Jon Michaels, Kali Murray, Ricky Revesz, Josh Sellers, and Justin Weinstein-Tull. All errors are my own.
Copyright 2021 by Bijal Shah
Cite as: Bijal Shah, Deploying the Internal Separation of Powers Against Racial Tyranny, 116 Nw. U. L. Rev. Online 244 (2021), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1318&context=nulr_online.