Dialnet-TheSeparationOfPowersInUnitedStatesOfAmerica-3046701 Article22 Article11
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Political science 3-4 pages essay, need cite at least 4 sources due Friday noon. Request the main political science writer, Include the questions in the paper and answer below each question.
THE SEPARATION OF POWERS IN UNITED STATES OF
AMERICA: PAST AND PRESENT
George W. Carey
INDEX: I. INTRODUCTION.- II. THE FEDERALIST ON THE SEPARATION OF
POWERS.- 2.1. The Constitutional Solution.- 2.2. A Summary Overview.- III.
POLITICAL DEVELOPMENTS AND CHANGING THEORETICAL
PERSPECTIVES.- 3.1. Changing Constitutional Perspectives and the Rise of the
Presidency.- 3.2. Congress and the Growth of Presidential Powers.- 3.3. The
President: Prerogative and Federative Powers.- IV. THE JUDICIARY:
THEORETICAL PROBLEMS.- V. CONCLUSION AND OVERVIEW.
Abstract: The American version of the separation of powers was designed to
prevent tyranny (i.e., capricious, arbitrary rule) and to ensure the rule of law by
preventing the concentration of all powers in any one branch. That legislators, as
well as their family and friends, would be subject to the impartial administration and
adjudication of laws which they passed was a key factor in assuring these
objectives. While Congress was regarded as the most representative and powerful
branch in the system, over the course of American history presidential powers
have increased enormously, often at the expense of Congress. The emergence
and growth of political parties has facilitated this development so that today the
presidency is the predominant branch of government, viewed as representing all
the people, not special or narrow interests. In recent years, a new and expansive
theory of presidential authority, “the unitary executive theory,” has gained currency;
a theory which justifies an even greater concentration of authority in the executive
branch. Moreover, the Supreme Court in recent decades, largely through an
expansive interpretation of both its function and the language of the Constitution,
has assumed new power, again at the expense of Congress. While the
Constitution has not been amended to alter the original design, the reality is that
the present system does not correspond to that intended by the Framers. Yet, the
concerns posed by the Framers about a concentration of power remain.
Key Words: The Federalist, president, Congress, Supreme Court, delegation,
unitary executive theory, tyranny.
I. INTRODUCTION
The Framers of the American Constitution possessed a theoretical and
practical understanding of the separation of powers doctrine and what its
implementation would entail. To be sure, only a few may have been steeped in
English political writings of the 17th and 18th centuries dealing with the intricacies of
Historia Constitucional, n. 10, 2009. http://www.historiaconstitucional.com, págs. 263-295
the doctrine, but most, if not all, possessed a familiarity with Montesquieu’s
formulation which incorporated much of this earlier thinking, particularly that of
Locke.1 As well, the prior American political experience served to impart a
practical understanding of certain of the finer points of the doctrine and its
operations. From the early stages of the colonial period, for instance,
controversies arose over the proper delineation of legislative and executive
functions and duties.2 More significantly, after independence was declared, eleven
of the thirteen states in their new constitutions sought to provide for the separation
of powers.3 In fact, in the constitutions of six of these states, the doctrine was
declared to be an inviolable principle of free government.4
The fact that these states had little success in maintaining the separation of
powers called for in their constitutions did not diminish the deep and widespread
regard the doctrine enjoyed.5 The records of the deliberations at the Constitutional
Convention reveal that there was never any question that the resulting constitution
would embrace a division of functions between three relatively distinct departments
of government.6 The failures of the state governments only served to provide
instructive lessons for the convention delegates on what additional provisions and
precautions would be necessary for a viable and enduring government with
divided powers.
1. See Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth Century
Political Thought,” 78 American Political Science Review (1984). On Lutz’s showing, Montesquieu
was the most widely cited political philosopher in the American founding period. His authority was
invoked by both Anti-Federalists and Federalists during the ratification debates. See, for instance,
Federalist essays nos 9 and 47. For an excellent treatment of the various versions of the
separation of powers doctrine and its evolution in the English political tradition see: W.B. Gwyn, The
Meaning of the Separation of Powers, vol. IX, Tulane Studies in Political Science (New Orleans:
Tulane University, 1965).
2. For a splendid treatment of separation doctrine, its development and application in America, see
M.J.C. Vile, Constitutionalism and the Separation of Powers, 2nd ed. (Indianapolis: Liberty Fund,
1998), chpt. 6.
3. The two exceptions were the charter colonies, Connecticut and Rhode Island, which continued to
operate under their original charters.
4. The most elaborate of these declarations was that in the Massachusetts Constitution of 1780.
Article XXX in its “declaration of right” reads to the effect that no branch of government – legislative,
executive, or judicial – shall exercise the power of another “to the end it may be a government of
laws and not of men.” The Popular Sources of Political Authority: Documents on the Massachusetts
Constitution of 1780, eds. Oscar and Mary Handlin (Cambridge: Harvard University Press, 1966),
327.
5. For an overview of the failings of the state governments established after the Declaration see
Joseph M. Bessette, The Mild Voice of Reason: Deliberative Democracy and American National
Government (Chicago: University of Chicago Press, 1994).
6. Both major plans set before the Convention, the Virginia and Connecticut, incorporated the
separation of powers, though in rudimentary form. Neither plan provided the “balance” that was to
be found in the final product. See text below.
264
While the Constitution Convention wrestled with and resolved many issues
intimately connected with the separation of powers, The Federalist 7 provides a
more coherent point of departure for an understanding and appreciation of why’s
and wherefore’s of the major provisions relating to the eventual constitutional
division of authority. The understanding of the separation of powers that emerges
from The Federalist also forms a useful benchmark for identifying and evaluating
the changes that have occurred in the relations between the branches and their
relative powers over the course of time. Surveying these changes, in turn, leads
straightaway to an examination of recurring and unresolved problems that have
arisen in practice; problems that have led some authorities to call for constitutional
changes that would eliminate the separation of powers altogether.
II. THE FEDERALIST ON THE SEPARATION OF POWERS
Many essays in The Federalist touch upon matters related to the functions
and powers of the branches, as well as their relationship to one another.8 But a
brace of essays, no. 47 through the better part of no. 51, are the most important for
understanding the theoretical foundations of the constitutional provisions for the
separation of powers. Madison, the author of these essays, begins Federalist no.
47 by taking up the charge of certain Anti-Federalists that there is too much
blending of powers in the proposed Constitution which “expose[s] some parts of
the edifice to the danger of being crushed by the disproportionate weight of other
parts.” In so doing, he also acknowledges in no uncertain terms that a separation
of the major functions of government is indispensable for securing liberty and
avoiding tyranny. If the Anti-Federalist charge be true, Madison concedes, “no
further arguments would be necessary to inspire a universal reprobation of the
system” since there is, he holds, “no political truth …of greater intrinsic value, or …
stamped with the authority of more important patrons of liberty” than that “the
accumulation of all powers, legislative, executive, and judiciary, in the same hands,
whether of one, a few, or many, and whether hereditary, self-appointed, or elective,
may justly be pronounced the very definition of tyranny.”9 This view, widely shared
across the political spectrum of the founding era, unmistakably reflects the
influence of Montesquieu’s thought. Beyond pointing to indispensable need for
7. Alexander Hamilton, John Jay, and James Madison, The Federalist: The Gideon Edition, eds.
George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2000). All subsequent
references to The Federalist are to this edition indicating specific essay followed by page number.
The Federalist consists of 85 essays which are widely regarded as the best single source for
understanding the theory underlying the Constitution. The authors used the pseudonym “Publius”
to hide their identities.
8. Starting with essay no. 52, Publius deals in some detail with the institutions created by the
Constitution. He begins with the House of Representatives, then the Senate, moving on finally to
the presidency and the courts.
9. The Federalist, 47/249.
265
separated powers, however, these essays provide a wider perspective for not only
understanding the purposes served by separation – i.e., its role in insuring
constitutional republicanism and liberty – but also the difficulties encountered in
endeavoring to insure that the constitutional separation will endure. To begin with,
what is not widely recognized is that Madison held that the very existence of a
concentration of powers constituted tyranny. Tyranny, that is, is not defined as
oppressive or unjust use of power, but rather as the mere concentration of the
powers. This understanding follows from Montesquieu’s view of political liberty, “a
tranquility of mind arising from the opinion each person has of his safety” which, in
his opinion, required “the government be so constituted as one man need not be
afraid of another.”10 Simply put, an individual could not have “tranquility of mind,”
i.e., “political liberty,” if powers were in the same hands because the threat of
arbitrary and capricious rule would always be present. On this point, Madison
quotes extensively from Montesquieu to indicate how even the union of any two
powers could lead to arbitrary and capricious rule in contravention of the rule of
law. A merger of legislative and executive powers, for instance, could result in the
legislature passing partial or unjust laws with impunity by selectively enforcing
them to exclude members of these branches, their families and friends. Other
combinations produce the same results: if there be a union of the legislature and
judiciary, “‘life and liberty of the subject would be exposed to arbitrary control, for
the judge would then be the legislature,” while a union of executive and judicial
powers would allow “the judge” to “behave with all the violence of an oppressor.”11
This understanding of the character of tyranny was closely related to the
view that the separation of powers was essential for the stability and viability of
republican government. This much emerges from Hamilton’s observations earlier
in The Federalist concerning the “petty republics” of times past whose unrest and
instability, as he put it, kept them “perpetually vibrating between the extremes of
tyranny and anarchy.”12 Indeed, he contends, had not “the science of politics …
received great improvement,” “the enlightened friend of liberty” would have to
abandon “the cause” of republicanism.13 Chief among those improvements he
cites are “the regular distribution of power into distinct departments; the
introduction of legislative balances and checks” (i.e., bicameralism) and “the
institution of courts composed of judges” serving “during good behavior.” In short,
in these passages there is a recognition that the elements of liberal
constitutionalism – i.e., the institutions and processes long associated with divided
powers – are essential for the rule of law and the liberty as well as the very
survival of popular or republican government.
10. The Spirit of the Laws, trans. Thomas Nugent (New York: Hafner Publishing Co., 1949), bk. XI,
sec. 6.
11. The Federalist, 47/251-52.
12. Ibid., 9/37.
13. Ibid., 9/38.
266
At another level, that relating to the problem of maintaining the constitutional
separation, a conviction prevailed that the legislature would be the greatest threat,
i.e., the branch most likely to usurp the powers and functions of the executive and
judicial departments. Madison drives this point home forcefully in Federalist no.
48: “in a representative republic,” in which the executive powers are “carefully
limited, both in extent and duration,” but where the representative “assembly
…inspired by a supposed influence over the people,” possessing “an intrepid
confidence in its own strength; which is sufficiently numerous to feel all the
passions which actuate a multitude, yet not so numerous as to be incapable of
pursuing objects of its passions, by means which reason prescribes; it is against
the enterprising ambition of this department, that the people ought to indulge all
their jealousy, and exhaust all their precautions.”14 Hamilton makes the same
observation later in discussing the president’s power of veto where he writes of a
“tendency…almost irresistible” on the part of the legislature to “absorb” the other
branches. “The representatives of the people, in a popular assembly,” he
continues, “seem sometimes to fancy, that they are the people themselves, and
betray strong symptoms of impatience and disgust at the least sign of opposition
from any other quarter.”15 This concern over legislative usurpation was, no doubt,
fueled by the experiences at the state level. Madison, for instance, in Federalist
essay no. 48 quotes extensively from Jefferson’s “Notes on Virginia” concerning
the legislative usurpation of executive and judicial powers in that state. In addition,
the more indefinite nature of legislative powers and functions compared to those of
the executive and judiciary, coupled with the fact that historically the political ends
sought through separation involved greater legislative control over and diminution
of executive or royal authority, led Madison’s to conclude that, for good or ill, “in
republican government, legislative authority the necessarily predominates.”16
That the legislature would most likely be an aggressor in its relations with
the executive and judicial branches played a significant role in Madison’s answer to
the question with which he was preoccupied in essays nos. 48, 49, and 50,
namely, how to maintain the necessary constitutional separation. In many ways
these essays are the richest in revealing the assumptions upon which the entire
constitutional edifice rests. Will, he asks, “parchment barriers” – marking out “with
precision, the boundaries” of each department in the constitution – serve to contain
“the encroaching spirit of power?” Such barriers he finds have “been greatly
overrated” by the drafters of the state constitutions; they have not served to
prevent the “legislature department” from “every where extending the sphere of its
activity and drawing all power into its impetuous vortex.”17 Will appeals to the
14. Ibid., 48/257.
15. Ibid.,, 71/371.
16. Ibid., 51/269.
17. Ibid.,, 48/256-57.
267
people when there is an evident breach of the constitutional separation serve the
purpose of maintaining the constitutional separation? Again, he answers in the
negative for various reasons: such appeals, suggesting defects in the Constitution,
would undermine the popular respect for it; they would arouse the “public passions”
and thereby dangerously “disturbing the public tranquility.” “But the greatest
objection of all,” he contends, is that such appeals would not preserve the
constitutional equilibrium; given the number, influence, and prestige of the
legislators, the people would most likely take their side. But even if this were not
the case, he observes, the popular decision would not “turn on the true merits of
the question,” but instead upon partisan considerations. Consequently, he
concludes, “passions” and not “reason” would carry the day.18
Would appeals to the people at fixed intervals serve to maintain the
prescribed separation? Once again he finds multiple reasons to reject this
solution. If the transgressions occur close to the time of appeals, passions will
again dominate. If the transgressions be distant from the time of appeal, he
concludes, they may have already taken root and “would not be extirpated” or they
may have already accomplished their “mischievous effects” before any remedy
could be applied. In addition, he notes, the prospect of “distant prospect of public
censure” would not serve as an effective deterrent particularly against the
encroachments of a numerous assembly.19
2.1. The Constitutional Solution
In Federalist no. 51, clearly taking into account the foregoing considerations,
Madison sets forth his solution that rests in part on a blending of powers. In essay
no. 47, by way of answering the Anti-Federalist critics, he contends that a high
degree of blending is consonant with the separation of powers doctrine. In this
connection he observes that British constitution, which served as the model for the
“celebrated Montesquieu,” does not provide for “departments … totally separate
and distinct from each other.”20 From this Madison adduces that Montesquieu held
that only when “the whole power of one department is exercised by the same
hands which possess the whole power of another department” are “the
fundamental principles of a free constitution … subverted.”21 Clearly Madison
believed such a wide latitude of blending necessary since he contends at the
outset of essay no. 51 that the “only answer” for “keeping each” of the “constituent
parts” “in their proper places” is through “contriving the interior structure of the
government.”22
18. Ibid., 49/263-64.
19. Ibid., 50/265.
20. Ibid., 47/250.
21. Ibid., 47/251.
22. Ibid., 51/267.
268
Madison also stresses that modification of the pure doctrine of separation of
powers is necessary to secure the establishment of a competent and independent
judiciary. The Founders clearly accepted the proposition that “each department
should have a will of its own” and the corollary that flowed from this, “that members
of each [department] should have as little agency as possible in the appointment of
the members of the others.”23 Yet, as Madison points out, the “peculiar
qualifications” for the judiciary led them to provide for a mode of selection that
would best secure “these qualifications.” At the same time, fully aware that
nomination to judicial office by the president and confirmation by the Senate might
serve to compromise judicial independence, as Madison relates, they provided for
the “permanent tenure” of judges with the end of eliminating “all sense of
dependence” on these branches.24 Likewise, familiar with the practices that led to
the breakdown of separation at the state level, the Founders also provided that
Congress could not reduce the remuneration of judges or the president.
The “great security” against the concentration of powers, as Madison
pictures it, involves providing “those who administer each department, the
necessary constitutional means, and personal motives, to resist [the]
encroachments of the others.” The “constitutional means” basically come down to
weakening the strong, and strengthening the weak. Since the legislature is the
predominant branch, vested with virtually all the powers delegated to the national
government, “the remedy … is to divide” it “into different branches; and to render
them, by different modes of election, and different principles of action, as little
connected with each other, as the nature of the common functions, and their
common dependence on the society, will admit.”25 But the Framers obviously
believed that the executive needed strengthening or, as Madison put it, that “it
should be fortified” against potential assaults for the legislature. This fortifying
came in the form of a qualified veto; one which would require a two-thirds vote in
both chambers to override. In keeping with the doctrine of separation of powers,
the “primary” purpose to be served by this veto, as Hamilton takes pains to note in
essay no. 73, is to enable the executive to repel the encroachments by the
legislature on executive powers; its “secondary” use relates to securing good
government and neutralizing the excesses of popular government by blocking the
passage of “bad laws, through haste, inadvertence, or design.”26
23. The requirement caused serious problems in the Constitution Convention when it came to the
mode of electing a president. A major question was how could a president seek another term of
office of the he was to be elected by Congress? To gain re-election would he not yield to
congressional demands? The eventual solution, the electoral college, eliminated this difficulty.
24. The Federalist, 51/268.
25. This is the principal reason for two houses, though the popularly accepted (but erroneous) view
today is that principal reason was to act as a brake on the first.
26. The primary purpose of the veto is all but forgotten in modern text dealing with the American
system. Instead, emphasis in placed on the secondary function which ultimately serves to bring
into question the Framers commitment to popular government. The same may be said of the
269
Madison’s remarks concerning the presidential veto, though brief, are
revealing. He acknowledges that, “at first view,” “an absolute negative” would
appear to be “the natural defence with which the executive should be armed.”
Indeed, the absolute negative would have been in keeping with Montesquieu’s
thinking. But Madison, reflecting the concerns raised in the Constitutional
Convention, points out that such a veto power might not be “altogether safe, nor
alone sufficient”: “On ordinary occasions, it might not be exerted with the requisite
firmness; and on extraordinary occasions, it might be perfidiously abused.” He
does appear to regard this lack of an absolute veto to be something of a
shortcoming when he writes that “this defect of an absolute negative” can perhaps
be overcome “by some qualified connexion between this weaker department [the
executive], and the weaker branch of the stronger department [the Senate].”27 On
this score, it would appear, he believed a bond might develop between the
executive and the Senate since they had to cooperate in the performance of
important functions and duties such as executive and judicial appointments and
treaty making.
These constitutional provisions for the separation of powers would be for
naught lacking the “personal motives,” the second pillar in the solution for
maintaining the constitutional partition. What good, for example, is the veto power,
if the executive fails to wield it when necessary to protect his constitutional
authority? At the outset of Madison’s discussion of personal motives are found the
most frequently quoted passages from The Federalist: “Ambition must be made to
counteract ambition”; “If men were angels, no government would be necessary”; or
“In framing a government which is to be administered by men over men, the great
difficulty lies in this: you must first enable the government to control the governed;
and in the next place oblige it to control itself.” These observations point to an
underlying strategy, that is, “supplying by opposite and rival interests, the defect of
better motives” in order that the constitutional provisions will operate to secure the
constitutional separation.28 More specifically, maintaining the division requires that
“the interest of the man” be “connected with the constitutional rights of the place.”29
If this connection exists, then, the partition will be maintained, not out of any feeling
of civic responsibility or self-restraint, but rather from the motives stemming from
institutional interest. The constitutional means, therefore, are a necessary but not
sufficient condition for maintaining the constitutional division of authority. Without
the appropriate personal motives to preserve institutional integrity and power, they
will not serve their purpose.
reasons for bicameralism. (See note 25 supra.)
27. Hamilton elaborates upon these considerations in Federalist essay no. 73. He sees
advantages in the qualified veto over the absolute in part because executives might be less
reluctant to exercise the latter.
28. The Federalist, 51/269.
29. Ibid., 51/268.
270
Ultimately, then, the American system of separation of powers rests on the
Framers’ understanding of human motivation and, particularly, that of those
seeking and holding office. For instance, Madison, in his account, is short on
informing us how officer holders are to be given the requisite “personal motives” or
how “opposite and rival interests” are going to be supplied. He simply seems to
assume that the mere creation of institutions with different powers would itself be
enough to supply these interests and personal motives; that the mere existence of
these institutions would be enough to create the “opposite and rival interests” that
would keep the system on even keel. In the vernacular of modern times, he
understood that politicians would “defend their turf.”
2.2. A Summary Overview
Separation of powers was woven into the Constitution at the Philadelphia
Convention. The reasons for this and for the form the separation assumed are
clear enough. The Framers sought a system that would observe and preserve the
rule of law which they regarded as essential for stability and ordered liberty. To
achieve this, they recognized that government would have to be controlled; that
those exercising power would not be able to place themselves above the law.
These concerns are reflected in Madison’s observation that under the proposed
Constitution “oppressive measures” were unlikely simply because representatives
“can make no law which will not have its full operation on themselves and their
friend, as well as on the great mass of the society.” And, he warns, if the people
“tolerate a law not obligatory on the legislature, as well as on the people, the
people will be prepared to tolerate any thing but liberty.”30
While the primary purpose of divided powers was to secure the rule of law
and those values closely associated with it, the Founders knew from their
experiences that the legislative branch could not be restrained by a mere paper
demarcation of powers. To prevent a tyrannical concentration of powers in the
legislative department required precautions some of which are not, theoretically
speaking, necessarily connected to the doctrine of separation of powers, the most
notable of these being bicameralism and life tenure for judges. A blending of
powers, principally that providing for the presidential veto, was also deemed
essential to prevent a tyrannical concentration. Because of these provisions,
intended to maintain separation and to keep the departments on an even keel, the
Constitution is commonly referred to as a “balanced Constitution.” Only through a
blending of powers, the division of legislative authority, and the strengthening of
the executive and judicial branches, could the separation of powers serve the ends
– e.g., rule of law, ordered liberty, stability – the Framers sought.
Certain aspects of the Founders’ understanding of the separation of powers
should be keep in mind in light of both subsequent constitutional and political
30. Ibid., 57/297.
271
developments and the modern understanding of the constitutional division of
powers. In the first place, contrary to modern belief that the founders established
“three equal and coordinate branches” of government, they regarded Congress to
be the predominant branch. This understanding is evident from the Convention
deliberations, The Federalist, and the ratification debates in the several state
conventions.31 Moreover, reading the Constitution with an innocent eye reveals as
much. Here we find provision for Congress in Article I, wherein virtually all the
powers delegated to the national government are set forth. Significantly, Congress
also has the authority to police and control the other branches. It can, for example,
impeach and remove the president and judges, override presidential vetoes, and
control the appellate jurisdiction of the Supreme Court. To be sure, in most cases
extra-majorities are required in both legislative chambers for these and like actions,
but even so, the judiciary and executive have no equivalent powers or authority
over Congress.
A second observation, which also runs counter to much of the contemporary
understanding, is that the term “checks and balances” applies in only a very
special sense to the American system of separated powers. “Checks and
balances,” for instance, have traditionally been associated with “mixed” regimes
wherein, not unlike the British system at the time of the American founding, the
institutions of government represent the dominant classes or interests within the
society. Yet, what the Founders did was to adjust the doctrine of separation of
powers to the principles of republicanism which required that all departments,
either directly or indirectly, would ultimately be accountable to the electorate.
Furthermore, those constitutional provisions, intended to establish a “balanced
Constitution,” are best understood as a means to maintain the constitutional
separation of powers rather than, as the case in mixed regimes, to insure any
balance of power between the major social interests or classes. This, at least, was
Madison’s understanding that was also widely shared by members of the
Constitutional Convention.
III. POLITICAL DEVELOPMENTS AND CHANGING THEORETICAL
PERSPECTIVES
As intimidated above, this understanding of separation of powers and, in
particular, the status and role of Congress, has changed markedly since the time of
founding. The most far reaching aspect of this change is not attributable to
modifications of the Constitution or to judicial interpretations relating to the
respective powers of the Congress and president. Indeed, the Constitution in most
important particulars relating the division of powers has not changed since its
inception. If anything, save for certain provisions in the Bill of Rights, the first ten
31. Perhaps this point is best illustrated by looking at The Federalist and the attention devoted to
each of the branches. The legislature is treated first in fifteen essays (52-36); ten devoted to the
House of representatives, five to the Senate; the executive next in eleven essays (67-77); and the
judiciary in six (78-83).
272
amendments to the Constitution adopted shortly after ratification, at least two
subsequent amendments would seem to increase congressional powers: the
Fourteenth Amendment, which provides in section 5 that “Congress shall have
power to enforce, by appropriate legislation, [its] provisions” that include
guaranteeing individuals both “the equal protection of the laws” and protection
against “any State” depriving “any person of life, liberty, or property, without due
process of law”;32 and the Sixteenth that confers upon Congress the “power to lay
and collect taxes on incomes, form whatever source derived, with apportionment
among the several States, and without regard to any census or enumeration.”33
Despite this, however, political developments over the decades, as well as
changing theoretical perspectives concerning constitutional interpretation have
served to diminish the status of Congress relative to the other branches. This can
best be seen by tracing the major factors that have led to an expansion of
presidential and judicial powers often at the expense of Congress.
3.1. Changing Constitutional Perspectives and the Rise of the Presidency
Two related developments within a few decades after ratification of the
Constitution served as catalysts in altering the relationship between the branches,
at least as this relationship was originally understood. The first of these was the
emergence of organized political parties which, not entirely unlike the parties today,
were rooted in the states but united in their determination to elect a president of
their choice. From the perspective of the constitutional division of powers,
Jefferson’s election in 1800 and the ascendency of his Republican party is
significant because it demonstrated how a political party can serve as a bridge or
connection between the legislative and executive branches with the president
understandably serving as the acknowledged leader of the party. Indeed, as
subsequent history shows, the interests of political parties more frequently than not
outweigh or trump those institutional interests upon which the Founders relied for
preserving the division of powers. The second development involved a significant
change in the mode of nominating candidates for the presidency and the manner of
their election. On this score, Jackson’s election to the presidency in 1828 is an
acknowledged turning point: His nomination was secured through appeals to the
people rather than through a congressional party caucus, the nominating process
up to 1824, and his election rested largely on the popular vote since most of the
states by this time allowed the people to vote for electors pledged to the
candidates of their choice. This meant, as Jackson was to maintain in various
contexts, that the presidency possessed as firm a popular foundation as Congress.
Put in other terms, the Founders believed, consistent with the historical
circumstances which gave rise to the separation doctrine, that the will of the people
was most authentically expressed by Congress and, in particular, the House of
Representatives, but given the development of popularly based parties and mode
32. U.S. Const. amend XIV, sec. 5.
33. U.S. Const. amend XVI.
273
of election, the president could now claim to speak for the people just as
authoritatively, if not more so, than Congress.
The roots of the modern presidency are to be found in Jackson’s claims
concerning the representative character of the presidency. His contentions can
also be looked upon as initiating the continuing and complex controversies over
which branch, the executive or legislative, is the more democratic or most faithfully
embodies the values, aspirations, needs, and will of the people.34 Woodrow
Wilson’s intellectual odyssey on these and related issues perhaps best illustrates
the dimensions of the controversy and the problems that arise from it. His analysis
and observations still serve as a foundation for those seeking to “reform” the
American system by drastically altering or even eliminating the constitutional
separation of powers.35
Wilson’s Congressional Government, published in 1885, ranks among the
first and most trenchant critiques of the Framers’ handiwork. Many students regard
the date of its publication important because Wilson was writing in the post-Civil
War period of congressional dominance. In any event, in this work he operated
from the premise that, given the character of the Constitution, Congress would
inevitably reign supreme. “Our Constitution,” he wrote, “like every other
constitution which puts the authority to make laws and the duty of controlling the
public expenditure into the hands of a popular assembly, practically sets that
assembly to rule the affairs of the nation as supreme overlord.”36 This he regarded
as “the inevitable tendency of every system of self-government” similar to those
established by the Constitution. Wilson expressed no particular displeasure with
this tendency. Rather his criticisms were directed to the shortcomings of Congress
that rendered it incapable of performing its required functions as the institution
through which the people would exercise sovereignty. These criticisms were
multiple, some relating to the organization and operations of Congress, but the
most telling involved the consequences of its separation from the executive branch.
While he could understand the Framers’ concerns to insure congressional
34. Some have argued, not without merit, that the president is obliged to speak in lofty, abstract
terms to avoid alienating large segments of the electorate, whereas Congressmen, coming from
more structured surroundings, represent real, on-going interests. In this sense, they contend,
Congress is more representative than the president. See Willmoore Kendall, “The Two Majorities.”
Midwest Journal of Political Science, 4 (1960) and James Burnham, Congress and the American
Tradition (Chicago: Henry Regnery Co., 1959).
35. An excellent compilation of the major reforms of the Constitution suggested is to be found in
Reforming American Government, ed. Donald L. Robinson (Boulder, Colorado: Westview Press,
1985). The bulk of the suggested reforms involve abandoning the Framers’ system of separated
powers and parallel Wilson’s in seeking to emulate the British parliamentary system. See also in
this regard Toward A More Responsible Two-Party System, Report of the Committee on Political
Parties of the American Political Science Association, American Political Science Review, 44
(1950), Supplement. This report points to the potentialities of approaching the British parliamentary
system through the reform of the political parties.
36. Congressional Government, 203.
274
independence, he believed that it “deprive[d]” Congress “of the opportunity and
means for making its authority complete and convenient.”37 His concerns and
criticisms of the separation of powers related largely to the limited range of
Congressional authority. Congress “directs” and “admonishes,” “It issues the order
which others obey,” “but,” he lamented “it does not do the actual heavy work of
governing.”38 From his perspective, “the only really self-governing people is that
people which discusses and interrogates its administration,” functions which
Congress must perform on behalf of the sovereign people but cannot given the
division of powers. The responsibilities of Congress, then, should go far beyond
articulating “the will of the nation” to include “superintending all matters of
government.”39 In short, Congress needs the authority to give direction over how
its laws and policies are administered; an authority forbidden it by the constitutional
division of powers. As these criticisms suggest, and his earlier writings make clear,
Wilson much preferred a “cabinet government” modeled on his understanding of
the British government, Though he never fully detailed the specific constitutional
changes that would be required to institute such a system, the thrust of his
argument is clear: he wanted to place executive powers and functions under
congressional supervision. This involved, as Wilson acknowledged, a merger or
combination of powers that would have been unacceptable to the Framers.
By 1908, with the publication of his Constitutional Government, Wilson’s
understanding of the constitutional order, its evolution and needs, had markedly
changed. In one sense, his new outlook simply refines and expands upon
Jackson’s conception of the presidency and its relation to other branches. Wilson,
for his part, had apparently come to conclude that an active and responsible
government, one capable of achieving the ends associated with the Progressive
movement of the early Twentieth Century to which he subscribed, could be
realized most efficiently and effectively through presidential leadership. While he
recognized that the Founders scarcely envisioned a president assuming such a
positive role in the processes of government, he did believe that changing
circumstance and extra-constitutional developments, principally the emergence
and growth of political parties, enabled presidents to assume such a role without
the need for any basic constitutional changes. To this effect he observes, “He [the
president] has become the leader of his party and the guide of the nation in political
purpose, and therefore in legal action. The constitutional structure of the
government has hampered and limited his action in these significant roles, but it
has not prevented it.”40 This understanding, as well as the history of the office, led
Wilson to conclude that the presidency is largely what its occupant at any given
37. Ibid.
38. Ibid., 197
39. Ibid., 195.
40. Ibid., 60.
275
time “has the sagacity and force to make it.”41
In contrast to his earlier position that provided for congressional supremacy,
Wilson now set forth a conception of the separation of powers in which the
president is the centerpiece, “the unifying force in our complex system, the leader
both of his party and of the nation.”42 He points to the inherent advantages which
a president enjoys over Congress in the context of a popular government. He
repeatedly emphasizes that the president alone represents “the people as a
whole,” that “he is the representative of no constituency, but of the whole people.”
The nation, he continues, “has no other political spokesman,” the president
possesses the “only national voice in affairs.” To this, Wilson adds, when the
president does speak “in his true character, he speaks for no special interest.”
Aside from the fact that only the president, and not Congress, can speak for the
people as whole, Wilson insists that other factors and forces point to his
dominance. The country’s “instinct is for unified action, and it craves a single
leader” so that once he has gained “the admiration and confidence of the country
… no other single force can withstand him, no combination of forces will easily
overpower him.” Or, again, “if he rightly interpret the national thought and boldly
insist upon it, he is irresistible.”43
Wilson’s views, those expressed in Congressional Government and later in
Constitutional Government, provide a continuum on which the varied conceptions
of presidential and congressional authority can be arrayed. Theodore Roosevelt’s
“Stewardship theory” of presidential authority, for instance, which holds that a
president may act for the common good in the absence of congressional or
constitutional authorization unless the act is “prevented by direct constitutional or
legislative prohibition,” is obviously in line with Wilson’s presidentially oriented
understanding.44 Likewise, William Howard Taft’s belief that a president must rely
on a “specific grant of power” or what can be “justly implied” “as proper and
necessary” from such a grant is more in keeping with the traditional understanding
that places the legislative branch at the center.45 As the views of these two former
presidents would suggest, the system over time can best be described as swinging
back and forth, so to speak, between these two poles. Franklin Roosevelt in
advancing the New Deal, for instance, bears all the marks of Wilson’s model
president, whereas Calvin Coolidge approximates Taft’s. The so-called “strong
presidents” in American history are those who most closely conform with Wilson’s
41. Ibid., 69.
42. Ibid., 60.
43. Ibid., 68.
44. Quoted in Joseph E. Kallenbach, The American Chief Executive (New York: Harper and Row,
1966), 246.
45. Ibid.
276
image.46
A question that preoccupies many students interested in the development
and course of the American constitutional system is, which of these two competing
systems seems to be gaining ground. That is, despite these swings back and
forth, is one understanding or conception perceptively edging out other in the
minds of the political elite or the people? Or, to put this somewhat otherwise, is the
constitutional order, operationally speaking, moving permanently closer to one pole
or the other, i.e., either to a presidentially or congressionally centered system?
The answer would seem to be clear enough: During the course of the Twentieth
Century there has been movement toward a presidentially centered system, in part
due to developments largely extra-constitutional in nature that have strengthened
the president’s status as the representative of all the people. In light of the
presidential role marked out by Wilson, the “reforms” in the presidential nomination
process within both major parties after the 1968 presidential campaign surely rank
among the most important. While at that time both parties had moved well beyond
the control of party elites meeting in the proverbial “smoked filled rooms” to
determine their presidential nominees, local and state politicians prior to 1972 still
had a large say at the national nominating conventions. Since 1972 the parties
have democratized the nominating process so that voters can now express their
preferences in state presidential primaries or in state party caucuses. Suffice it to
say, this “reform” only serves to strengthen the claim initially made by Jackson that
the president is the only true representative of all the people. At the same time,
because of the their diminished role in presidential politics, the state and local party
organizations are weakened which further solidifies the president’s position as
party leader. In fact, the decline of the parties at the local level, with the attendant
rise of presidential leadership, follows upon Roosevelt’s New Deal and the
assumption by the national government of welfare functions that had previously
rendered local party “machines” so viable. Beyond this, of course, and quite apart
from his status within his party, the president, largely because he speaks with a
single tongue, is far more effective than Congress in utilizing the mass media to
advantage. These new avenues have allowed presidents, perhaps to a degree
that even Wilson could not envisage, to give “direction to opinion” and speak for
“the real sentiment and purpose of the country.”47
3.2. Congress and the Growth of Presidential Powers
Hamilton feared that presidents, intimidated by the “superior weight and
influence of the legislative body,” would use their veto powers too sparingly. In his
opinion, “there would be greater danger of his not using his power when
46. War has contributed, in some instances, to rendering a president “strong.” For the most part,
those presidents who have widened executive powers, advocated centralization of authority in the
national government, and who have lead or challenged Congress are described as “strong.”
47. Congressional Government, 68.
277
necessary, that of his using it too often, or too much.”48 Early presidents, for
whatever reason, did employ this power sparingly: Washington employed the veto
on two occasions, once on constitutional grounds; neither Adams nor Jefferson
found cause to veto, but Madison did on seven occasions, citing constitutional
objections on four of these. Even Jackson saw fit to veto only twelve bills. Indeed,
prior to the Civil War, the veto was used a total of only 52 times After Jackson,
however, vetoes were increasingly based, not on constitutional grounds, but on
those of politics and expediency.49 Since the Civil War most presidents have used
the veto with far greater frequency for reasons that are almost always distinctly
political.50 Equally telling as a measure of the president’s increasing role in the
legislative process are the relatively few vetoes, approximately 4 percent, that have
been overturned. What has occurred over time, of course, is an altered
constitutional morality with regard to the proper use of the veto; a morality rooted in
the conviction that the president is as much an authentic spokesman for the
people, if not more so, than Congress.
While the veto power certainly accords the president a major role in the
legislative process, this role is, for the most part, a negative one. Modern
presidents have assumed a far more positive role in the legislative process to an
extent that many commentators have appropriately dubbed him “chief legislator.”
While presidents in the Nineteenth Century, particularly “strong” presidents such as
Jefferson and Jackson did initiate some legislation, they normally did so indirectly.
While the initiation of legislative measures increased significantly under Theodore
Roosevelt, these measures, following tradition, officially emanated from
departments and agencies within his administration. Wilson embraced Roosevelt’s
activism and moved beyond it to provide the model for modern presidents as
legislative leaders by using his State of the Union address – which, breaking
precedent, he personally delivered — to outline his broad policy goals, later
following through with special messages to Congress detailing means to these
goals. Thus, he linked the presidency to both specific legislation and broad policy
initiatives. In significant ways, Wilson set down the path followed by Franklin
Roosevelt in advancing his New Deal programs. In more recent times, it has
become standard operating procedure for presidents to set forth their legislative
agenda; agendas which are normally given priority in the legislative process.
The relationship between Congress, the president, and the bureaucracy is
48. The Federalist, 73/382.
49. See Edward Corwin, The President Office and Powers: 1787-1957 (New York: New York
University Press, 1957),
279
.
50. Franklin Roosevelt used the veto more than any other president, 635 times over slightly more
than three terms. Cleveland used the veto 584 times over his two terms. Figures on the use of the
veto power can be found at:
text include pocket vetoes. See the Constitution, Article I, section 7, paragraphs 2 and 3 for the
provisions relating to the president’s veto powers.
278
an extremely complicated one in large part due to political considerations, the
distribution of power in Congress, and, inter alia, constituent concerns – matters
tangentially related to the separation of powers in practice. On the whole, the
emergence of the president as “chief legislator” has not aroused much concern, the
more so since neither chamber of Congress is suited to assume a major role in
initiating policies.51 Rather, the area of acute concern that has intensified with the
growth of a positive government relates to legislative oversight and control of the
administrative development and execution of policies authorized by Congress. In
this regard, a maxim in Locke’s teachings, delegata potestas non potest delegari,
comes into play. This doctrine, central to constitutionalism and the rule of law,
holds in effect that legislative powers, constitutionally delegated by the people to
the legislature, cannot be further delegated by the legislature to another body or
agency. While readily comprehensible in theory, in practice it raises the complex
question of what constitutes an unconstitutional delegation of legislative authority
to the executive branch. The earliest dispute concerning the validity of a
congressional delegation occurred over the authority of the president to impose an
embargo when he deemed conditions set forth by Congress warranted.52 Much
later, beginning late in the Nineteenth Century, other challenges arose over the
grants of discretionary authority to the president in raising or lowering tariff rates.53
In these instances, the Supreme Court resolved the issue by holding that the
discretionary grants by Congress for imposing or lifting the embargo were
sufficiently defined and clear cut.
Two cases arise in 1935 involving the congressional delegation of authority
to the president by the National Industrial Recovery Act (1933), an act designed to
stimulate the economy by promoting fair competition in various sectors of the
economy, are of particular interest. One provision of the Act conferred
discretionary authority upon the president to forbid the interstate shipment of “hot
oil” — i.e., oil produced in excess of that permitted by state law. Since this grant of
authority contained no guidelines concerning when the president should forbid or
permit such shipments, the Court for the first time in the nation’s history held the
delegation to be unconstitutional.54 The Court shortly thereafter also ruled that the
“Live Poultry Code” of the Act unconstitutional on grounds that the code’s definition
of “fair competition,” the goal set by Congress, was so vague as to constitute a
51. By the Twentieth Century what John Stuart Mill asserted in his Considerations on
Representative Government was “slowly beginning to be acknowledge” had finally become
common knowledge, namely, “a numerous assembly is as little fitted for the direct business of
legislation as for that of administration.” This realization, no doubt, accounts for the acceptance of
the president’s role as chief legislator. John Stuart Mill, Utilitarianism, Liberty, and Representative
Government, ed. A.D. Lindsay (New York: E.F. Dutton, 1950), 315.
52. United States v. The Brig Aurora, 7 Cranch 383 (1813).
53. See Field v. Clark, 143 U.S. 644 (1891) and Hampton and Co. v. U.S., 276 U.S. 394.
54. Panama Refining Co. v. Ryan,
293
U.S. 388 (1935).
279
transfer of the legislative function to the executive.55 Since 1935, however, the
Court has not ruled any Congressional legislation in violation of Locke’s maxim,
though the issue was raised in 1997 when the Court invalidated an act that vested
the president with a qualified “line item” veto power; that is, the power to veto
specific provisions of an appropriations measure.56
The delegata potestas non potest delegari doctrine would now appear to be
a dead letter. The Court has upheld extremely broad delegations of power to the
executive branch. Congress in establishing the Occupational Safety and Health
Agency (OSHA), for example, gives the agency a broad mandate, namely, “to
assure as far as is possible every working man and woman in the nation safe and
healthful working conditions and to preserve human resources.”57 Likewise,
Congress has delegated broad authority to independent regulatory commissions.
The Consumer Product Safety Commission, for instance, is charged with the
responsibility of protecting the public “against unreasonable risks or injury
associated with consumer products.”58 With the enormous expansion of
government programs and regulation, which has continued with fits and starts
since the New Deal, Congress has delegated wide discretionary authority to
numerous agencies and commissions. In the first decade of the 21st Century, The
Federal Register, which records the rules and regulations issued by these bodies
in carrying out their missions, had grown to 70 volumes and more than 70,000
pages. OSHA alone has issued some 4,000 detailed rules and regulation.59
Various concerns have arisen over this development. The rules and
regulations promulgated by these numerous agencies and commission have, in
effect, the force of law since they carry penalties for non-compliance and they also
impose compliance costs upon various concerns in the private sector. Above all,
the number of such regulations lends to the selective and often arbitrary imposition
of the rules and regulations thereby undermining rule of law, one of the major goals
sought through the separation of powers. Congress for a time, through provisions
for one house and two house vetoes of administrative rulings and actions, sought
to insure that its laws were interpreted and executed in keeping with its intent.
Provisions for congressional veto of specified executive actions, either by one or
both chambers, were inserted in a wide variety of legislation – e.g., executive
reorganization, regulation of trade, energy policy — starting in 1932. In 1983,
however, such vetoes were deemed a violation of the constitutional separation of
powers, that is, unconstitutional congressional intrusion into the executive
55. Schechter Poultry Corporation v. U.S., 295 U.S. 495 (1935).
56. Clinton v. City of New York, 524 U.S.417 (1998)
57. OSH Act of 1970, 29 USC 651.
58. Consumer Products Safety Act (1972), 15 U.S.C. 2051, Sec. 2, para (3).
59. Philip K. Howard, The Death of Common Sense (New York: Random House, 1994), 12.
280
domain.60 In this decision the Court was reflecting its view that the Constitution
requires a strict separation of functions.61
Still another and more recent development has contributed to the expansion
of presidential authority, namely, the emergence of an expansive “unitary
executive” theory that challenges the traditional understanding of the separation of
powers as it pertains not only to the relations between Congress and president, but
to the courts as well. Succinctly put, the theory holds that “all federal executive
power is vested by the Constitution in the President.”62 Of course, this formulation
can be taken to mean, in a manner consistent with the view of divided authority
that has largely prevailed since inception of the Republic, that the president can
appoint, remove, and otherwise direct subordinates within the executive
department; that he is responsible for the faithful execution of the laws. But there
is a more expansive and highly controversial version of the theory that goes well
beyond asserting those powers related to the traditional executive functions;
namely, that there is a corpus of inherent executive powers, critically important in
times of war or national emergency, derived from Article II, section 1 (”The
executive power shall be vested in a President of the United States”), which grants
all executive powers to a single individual and, primarily, Article II, section 2 (“The
President shall be Commander in Chief of the Army and Navy of the United
States”). On the basis of Article II, section 1, the theory holds that the inherent
powers embodied in the Commander-in-Chief clause belong exclusively to the
president; that these powers cannot be modified, altered, or in any way diminished
by Congress or the judiciary. Thus, the inherent or implied executive powers are
shielded from the other branches with their nature and extent, following the logic of
the unitary executive theory, being matters for the president alone to determine.63
The unitary executive theory assumes great significance for the separation
of powers doctrine when it is joined with “presidential signing statements” by
means of which it can be effectuated.64 Though these signing statements have
60. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). This is not to say that
Congress is not able to exercise some control over the execution of its laws, but it now does so
largely through a “gentlemen’s agreement” between the agencies and the relevant oversight
committees.
61. The notion of a strict separation of function was reinforced in Bowsher v. Synar [478 U.S. 714
(1986)] in which the Court held that the Comptroller General, since he could be removed by
Congress, could not exercise any executive function relating to budgetary control.
62. This is the definition give by one of its proponents Samuel Alito, recently appointed to the
Supreme Court, in “Presidential Oversight and the Administrative State,” reprinted in Engage 11, 12
(November, 2001).
63. For a forceful defense of the expansive version of unitary executive theory see: John Yoo, The
Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (Chicago: University of
Chicago Press, 2005) and his more recent, War by Other Means: An Insider’s Account of the War
on Terror (New York: Atlantic Monthly Press, 2006).
64. Christopher Kelley, The Unitary Executive and the Presidential Signing Statement, Miami
281
become commonplace only in very recent decades, they have a long pedigree,
stretching back to President Monroe. Over the decades, they have served various
purposes, the most non-controversial being to indicate what the expected effects of
the law will be for the affected parties and how departments and agencies are to
interpret the law’s provisions.65 Another, highly controversial us of these
statements is that of setting forth what applications of the law, in the president’s
opinion, would violate the Constitution and/or what provisions of the law in his view
are unconstitutional.66 Such statements are understandably controversial for at
least two reasons. First, the president by marking out what he determines to be
unconstitutional provisions of a law, thereby signifying that he will selectively apply
the law, is in effect exercising an item veto, i.e., nullifying portions of the law.
Critics of this process point out that an item veto is not provided for in the
Constitution and that if a measure contains unconstitutional provisions, the only
constitutional recourse is for the president to veto the entire bill. Second, questions
and controversy surround the extent and character of the president’s inherent or
implied powers. It is apparent that the wider the executive’s conception of his
powers, the more likely will his signing statements limit the reach of Congress,
particularly in areas concerned with national security, the employment of the
military, or the accountability of executive departments to Congress More
generally, a president who declares that he will apply a law in a manner “consistent
with the Constitution” is, in effect, free to fuse his understanding of the Constitution,
including his conception of presidential authority, into the law thereby nullifying
specific provisions of the law or limiting its application.
3.3. The President: Prerogative and Federative Powers
John Locke’s conception of the federative and prerogative powers forms a
convenient backdrop for understanding perhaps the most complex and
controversial dimensions of the American division of powers. The federative
University (Ohio), Ph.D. dissertation (2003). Available at
See also: Phillip J. Cooper, By Order of the President: The Use and Abuse of Executive Direct
Action (Lawrence: University of Kansas Press, 2002).
65. See “Legal Significance of Presidential Signing Statements,” memorandum prepared for
Bernard N. Nussbaum, Counsel to the President, November 3, 1993, by Walter Dellinger, Assistant
Attorney General. Available at
Congress, Presidential Signing Statements and Constitutional Implications,” 20 September 2006, at
66. On June 5, 2006 a task force of the American Bar Association was formed to investigate the
“implications of presidential signing statements for the constitutional doctrine of separation of
powers.”
controversy surrounding President George W. Bush’s use of presidential signing statements that in
five years far exceeded the combined total of his predecessors. On this see: “Bush Challenges
Hundreds of Laws,” by Charles Savage, Boston Globe, 30 April, 2006. The report of the American
Bar Association task force was highly critical of the use of presidential signing statements,
regarding it as, above all, a serious threat to the constitutional separation of powers. It is available
at
282
power, as Locke describes it, involves “the Power of War and Peace, Leagues and
Alliances, and all the Transactions, with all Persons and Communities without the
Commonwealth.” Given its nature, Locke reasons, it is “much less capable” of
being “directed by antecedent, standing, positive Laws” than the executive power,
which deals with the internal order and welfare of the state.67 Hence, there must
necessarily be a greater reliance on the “Prudence and Wisdom” of those
exercising this power. The prerogative power shares some of the characteristics of
the federative. The prerogative, as Locke defines it, is the “Power to act,” when
unforeseen circumstances or emergencies arise that threaten the well being of the
people, with the necessary dispatch “according to discretion, for the publick good,
without the prescription of the Law and sometimes even against it.”68 Thus, again,
its proper exercise depends upon the prudence, sensibilities, and intelligence of
those who wield it. And like the federative power, the very recognition of its need
raises serious questions, if only because its operations are largely outside the
confines of the rule of law, the prime end served by the separation of powers.
In light of the American experience, the federative and prerogative powers
are not easy to separate. Perhaps the “purest” debate over which branch should
exercise the heart of the federative power, that of setting down the broad outlines
of the nation’s foreign policy, occurred shortly after President Washington’s
proclamation of neutrality in 1793. The effect of this proclamation was to abrogate
the 1778 treaty of alliance concluded with monarchist France by declaring that the
United States would assume a position of neutrality in the ongoing war between
France and England. The opponents of this move contended that Washington had
intruded upon legislative authority in abrogating the treaty and that, in any case,
the president did not have unilateral authority to do so. Hamilton, writing under the
pseudonym “Pacificus,” sought to answer these contentions in a series of essays.
In turn, Madison, took up his pen as “Helvidius” and responded point by point to
Hamilton’s arguments. Although the immediate issue was a narrow one, Hamilton
seized the opportunity to argue for expansive executive powers in the conduct of
foreign affairs. Essentially he contended that the president possesses all executive
powers, save for the exceptions marked out in the Constitution such as, for
example, the power to declare war. As he put it, “The general doctrine … of our
constitution is, that the EXECUTIVE POWER of the nation is vested in the
President; subject only to the exceptions and qu[a]lifications which are expressed
in the instrument.”69 Madison contested Hamilton’s understanding of executive
power. In this vein, he wrote: “To say …that the power of making treaties, which
are confessedly laws, belong naturally to the department which is to execute law, is
to say, that the executive department naturally includes a legislative power. In
67. John Locke, Two Treatises of Government, with an Introduction by Peter Laslett, rev. ed. (New
York: New American Library, 1963), chpt. XII, secs. 146, 147.
68. Ibid., chpt. XIV, sec. 160.
69. “Pacificus” [Alexander Hamilton], essay no. 1, from The Founders Constitution, eds. Philip B.
Kurland and Ralph Lerner, 5 vols. (Chicago: University of Chicago Press, 1787), 4, 64.
283
theory this is an absurdity – in practice a tyranny.”70 Madison went on to maintain
that Congress should play the leading role in formulating foreign policies and that
the president’s role should be largely instrumental, i.e., mainly confined to
executing the policies set forth by Congress.
Madison may be said to have “won” the battle by pointing out that the
legislative war making power logically touches upon “the right of judging whether
the Nation is under obligations to make war or not.”71 Technically speaking, then,
Congress, not the executive, possesses the constitutional authority to declare
neutrality. Aside from this particular issue, however, Hamilton’s position regarding
the president’s authority to play a leading role in initiating and executing the
nation’s foreign policy has prevailed. Indeed, the Supreme Court has even held
that the president has greater discretionary authority in the execution of foreign
than domestic policy on grounds that he possesses inherent powers that attach to
sovereignty.72 What is more, even Madison’s rather limited victory, has been
erased in practice. In conjunction with other Article II powers, principally his role as
“Commander in Chief” of the armed forces, the president has assumed a dominant
role in determining whether the country takes up arms or not. The manner in which
presidents have maneuvered the nation into war, leaving Congress no alternative
to issue an official declaration, is too involved to survey here. But a renown
constitutional scholar, writing in the mid Twentieth Century, concluded that only the
War of 1812 and the Spanish-America War followed upon “policies and views
advanced” in Congress; that the other engagements – the Mexican War, the Civil
War, and “our participation in the First World War and the Second … were the
outcome of presidential policies in the making of which Congress played a
distinctly secondary role.”73 If anything presidential powers have increased
substantially since this appraisal: since World War II, without any congressional
declaration of war, the United States has engaged in major and prolonged military
conflicts in Korea, Vietnam, and Iraq – conflicts popularly called “wars” – all
presidentially initiated. Some even suggest that a formal congressional declaration
of war is now a relic of the past and certainly no obstacle to the exercise of
presidential powers.74
70. “Helvidius” [James Madison], essay no. 1, from The Founders Constitution, 4, 67.
71. Ibid, 4, 65.
72. In upholding a delegation of power to the president to suspend arms shipments to belligerent
nations when such would contribute to peace between them, a delegation which Court
acknowledged would not pass muster in the domestic field, it held that the president “as sole organ”
of the nation “in the international field” possesses a “plenary and exclusive power”; a power which,
though subordinate to “the applicable provisions of the Constitution,” “does not require for its
exercise an act of Congress.” U.S. v. Curtiss-Wright Export Company, 29 U.S. 304, 320 (1936).
73. Corwin, The President: Office and Powers, 204.
74. See: Interview with John Yoo at < http://www.press.uchicago.edu/Misc/Chicago/
960315in.html>. Yoo argues that the traditional understanding of the declaration of war power is
unfounded and that, moreover, this power has very limited utility. See also: Testimony of Donald
284
http://www.press.uchicago.edu/Misc/Chicago/
Despite the experiences gained from these hostilities, controversy over the
president’s powers during war or times of emergency still remains. While Hamilton
conceived of the president’s role as commander-in-chief to be somewhat limited,
confined largely to “command and direction” of the armed forces,75 it has come to
be something far more expansive. A convenient point of departure for
understanding this development is Lincoln’s use of the prerogative power during
the Civil War. He suspended habeas corpus, issued new passport regulations,
ordered the blockade of Southern ports, expanded the army and navy, expended
unappropriated funds, issued the Emancipation Proclamation, “closed of the Post
Office to treasonable correspondence,” and, inter alia, instituted a militia draft, all
without congressional authorization.76 These prerogatives, to be sure, were taken
when Congress was not in session and, where appropriate, Lincoln sought
retroactive congressional approval. But the net effect of Lincoln’s initiatives was to
make clear that by combining the constitutional injunction to faithfully execute the
laws with the “commander-in-chief” authority during war and emergencies,
presidents could exercise extremely broad powers that embraced ends and
functions normally regarded as within the legislative ambit.
The lessons of the Civil War were not lost on Congress. In World War I, it
delegated enormous powers to the president dealing with virtually every major
sector of the economy connected with the war effort – industry, agriculture,
communications, transportation, mining, food and fuel procurement and storage –
by way of anticipating his needs and preempting the use of prerogative powers.
The same path was followed in World II. In both instances, most of the powers
delegated to the president were then further delegated by the president to boards
and commissions, a number of which, while vested with rule making powers that
carried the sanctions of law, were creatures of the executive, not Congress. This
process has raised constitutional challenges involving delegation and due process,
which the Supreme Court, true to its normal state of suspended animation during
war time, has rejected.77
While the Supreme Court has answered important questions related to
presidential powers during times of war, there still remain concerns in the realm of
constitutional theory that bear directly on the separation of powers doctrine. The
first is, what if the president, during an emergency or war, exercises a power that
Rumsfeld, Secretary of Defense before the House Armed Services Committee, 18 September
2002, at
congressional power is, in effect, obsolete.
75. See The Federalist, 69/357-58; 74/384-85.
76. Corwin, The President: Office and Powers, 231. Here Corwin classifies the types of action
taken by Lincoln that did or did not lead to increased presidential powers.
77. Yakus v. United States, 321 U.S.414 (1944).
285
Congress has expressly or even inferentially denied the president? The Supreme
Court has had occasion to rule on this question, but the Court was divided (6-3)
and seven justices wrote separate opinions, thereby leaving room for speculation
and conjecture concerning the limits of presidential powers. The Court’s decision
arose from President Truman’s seizure of the steel mills during the Korean War.78
Obviously, in justifying the seizure, stress was placed on the grave results that
might result for American armed force in Korea if steel production were curtailed for
any length of time. On the basis of their opinions, it appears that a majority of the
justices subscribed to some notion of extra-constitutional presidential powers, most
certainly the traditional prerogative power; that is, more exactly, their opinions
indicate that in the absence of any congressional legislation touching upon this
circumstance, they would have upheld the president’s action. What seemed to be
the decisive factor in leading a majority to declare the seizure to be an
unconstitutional expansion of executive power was that Congress had on three
occasions denied the president– once expressly and twice inferentially – authority
to unilaterally seize private property in cases of emergency and that, additionally,
Congress had made provision for handling labor-management disputes that had
produced this particular crisis.
In recent years, more expansive notions of presidential war time powers
have been asserted, particularly since 9/11, that would allow the president to act in
such situations contrary to the express will of Congress. In the future, this is to
say, the resolution of issues where conditions are alike or similar to those involved
in the steel seizure case might well result in a new understanding of inherent
presidential powers derived from the “unitary executive theory” (see above).
President Truman, for instance, acknowledged the authority of Congress to
overturn his seizure decision and to provide the means for the resolution of the
difficulties at hand. This position conforms with the nature and purpose of the
presidential prerogative power, at least as it is derived from Locke; that is, the
legislature may act on the matter at hand when it is capable of doing so. The logic
of the more expansive view of presidential powers, however, would hold such
presidential action is an inherent executive power, not subject to abrogation or
modification by legislative authority.79 Additionally, and also presumably in accord
with elements of the separation of powers doctrine, the president alone, not the
legislature or judiciary, would be the judge of extent of the inherent executive
powers. Under this new and expansive view of presidential power, most of the
prerogatives exercised by Lincoln were not prerogatives as such, but elements of
the president’s inherent constitutional authority during times of emergency or war.
This understanding of presidential powers gains greater plausibility as the powers
are seen to relate to protecting the American people or the nation from external
threats. Yet, for many, this justification of presidential powers leads straightaway
78. Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579 (1952).
79. See, for example, “Legal Authorities Supporting the Activities of the National Security Agency
Described by the President,” Office of the Attorney General, 19 January 2006, available at
286
to an “imperial presidency” and the breakdown of the constitutional separation of
powers.80
It seems safe to assume, much as Madison anticipated, that there will be
something akin to a perpetual war between the president and Congress over the
boundaries of their respective powers in both times of peace and war. If the past
be any guide, however, it is a war that Congress seems to be losing by slow
degrees.81
IV. THE JUDICIARY: THEORETICAL PROBLEMS
As the foregoing indicates the Supreme Court has played a critical role in
the American system of separated powers. This role derives from circumstances
somewhat unique to the American political experience. Shortly after the
Declaration of Independence most states, given their newly independent political
status, were obliged to write new constitutions. Soon the idea took hold that the
constitutions should rest on the consent of the people rather than the mere
sanction of the legislatures that had drafted them.. The Massachusetts
Constitution of 1780, still extant, was the first of the post-Declaration constitutions
adopted with the consent of the people; the citizens participated not only in the
selection of delegates to the constitutional convention that drafted the Constitution
but also in its ratification. That this spirit prevailed by the time of the Philadelphia
Convention is attested to by the terms of Article VII which call for ratification by
special conventions within the states; a provision that, in effect, insured the
national constitution would rest on the consent of the people within the states, not
the ratification of the state legislatures.
Written constitutions, thus, came to be viewed as contracts of sorts,
specifying the basic rules by which a society has consented to be governed. In this
context, attention naturally focused on the status and powers of the legislature
since it was vested by the people with the bulk of governmental powers.
Theoretically speaking, one proposition seemed unassailable: “The powers of the
legislature …. are derived from the people at large, are altogether fiduciary and
subordinate to the association by which they are formed.”82 Or, as James Iredale,
80. George W. Bush has been criticized for policies and activities undertaken in the “War on
Terror.” Critics, both on the Left and Right of the political spectrum, contend that his is an “imperial
presidency” which has undermined the separation of powers and the rule of law. For a
comprehensive statement of this position see: Gene Healy and Timothy Lynch, The Constitutional
Record of George W. Bush, (Washington, D.C.: The Cato Institute, 2006).
A recent decision by the Court [Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006)] rejected the
unitary executive theory holding that the president cannot unilaterally act to set up military tribunals
to try detainees from the American military incursion into Afghanistan following 9/11.
81. As Corwin, writing in the mid-Twentieth Century, put it: “the history of the presidency is a
history of aggrandizement.” The President: Office and Powers, 29-30.
82. James Varnum quoted in Charles G. Haines, The American Doctrine of Judicial Supremacy
287
one of the more prominent lawyers during the founding era put it: “The people have
chosen to be governed by such and such principles” in adopting a constitution.
“They have not chosen to be governed, nor promised to submit upon any other”;
consequently, the legislative body, itself a “creature of the Constitution,” has “no
more right to obedience on other terms than any different power on earth has a
right to govern us.”83 This understanding, in turn, gave rise to the fundamental law
theory and the principle of judicial review. On this point there was substantial
agreement that, as Hamilton was to maintain in Federalist essay no. 78., “The
interpretation of the laws is the proper and peculiar province of the courts.” This
and the generally accepted proposition that “A constitution is in fact, and must be
regard by judges as a fundamental law,” renders his conclusion almost
inescapable: “It therefore belongs to them [the courts] to ascertain its meaning as
well as the meaning of any particular act proceeding from the legislative body. If
there should happen to be an irreconcilable variance between the two, that which
has the superior obligation and validity ought of course to be preferred; or in other
words, the constitution ought to be preferred to the statue, the intention of the
people to the intention of their agents.”84
The doctrine of separation of powers does not require or call for judicial
review. Yet, in the American context, the power has come to play such a
distinctive role with respect to the constitutional separation that it cannot be
ignored. As a matter of course, the Supreme Court has from an early point in the
history of the Republic assumed the function of settling disputes over the
respective powers of the coordinate branches. The Court has, as the foregoing
discussion clearly indicates, endeavored to mark out the boundary lines between
the executive and legislative branches. Its role in this capacity is virtually
unchallenged, widely assumed to be the constitutionally sanctioned process for the
resolution of separation of powers issues. Indeed, presidential or congressional
defiance of any Court resolution would probably not be tolerated since it would be
bound to elicit an intensely negative public reaction.85
Having noted this much, however, the Courts’ power of judicial review raises
issues relating to separation of power and the rule of law that are among the most
interesting and controversial.
(New York: Russell and Russell, 1939), 106.
83. James Iredale, quoted in Haines, The American Doctrine of Judicial Supremacy, 115.
84. The Federalist, 78/404.
85. The Court’s authority in this respect is difficult to overstate. During the Watergate scandal in
the early 1970’s, the Supreme Court rejected President’s Nixon claim to executive privilege and
ruled that he had to turn over specific tape recording of his conversations in the Oval Office to the
Special Prosecutor. [United States v. Nixon, 418 U.S. 683 (1974)] The tapes, as it turned out,
revealed Nixon’s involvement in the “coverup.” Despite this, Nixon complied with the Court’s
decision to turn over the tapes. No doubt his compliance was forthcoming because it was
understood at the time that failure to comply would be grounds for impeachment.
288
During the ratification struggle, the Anti-Federalist “Brutus” raised concerns
over the Court’s power to authoritatively interpret the Constitution. While his
specific concern was that the Court, an arm of the national government, would use
this power to expand the national government’s jurisdiction at the expense of the
States, the more general concern which emerges from his essays is that the Court
will become the predominate institution. Over time, he assumed, the Court would
establish relatively clear lines that would make out the limits of legislative powers;
limits the legislature would not exceed. “And,” he continued, “there is little room to
doubt but that they [the legislature] will come up to those bounds, as often as
occasion and opportunity may offer” with the result that judiciary will provide “the
rule to guide the legislature in the construction of their powers.”86 He believed as
well that the Court would not confine itself to interpreting the Constitution
“according to its letter” but, as well, “according to its spirit and intention.87
Discovering the spirit of the Constitution, he reasoned, would lead the Court to give
meaning to the ends stated in the Preamble, thereby channeling legislative action
toward centralizing power at the national level.
Hamilton, in defending judicial review was aware of this line of reasoning. In
Federalist no. 81, he goes to some lengths to downplay the possibilities of the
federal courts encroaching upon the legislative powers, labeling such charges as
baseless. He points to Congress’s power to impeach and remove judges who
might persist in such behavior as the ultimate remedy.88 In a more general vein,
Hamilton regarded the judiciary to be the “weakest of the three departments of
government” and the “least dangerous to the political rights of the constitution”
since it possessed “neither FORCE nor WILL, but merely judgment.”89 He set forth
a constitutional morality with regard to the use of its power of judicial review,
namely, this power should be used only when the Court finds an “irreconcilable
variance” between the law and the Constitution. Moreover, it should take care to
exercise “JUDGMENT,” not “WILL,” which is the prerogative of the legislature.90
Hamilton’s concern that the judiciary confine itself to the exercise of
judgment, not will, provides a context for understanding past and current
controversies surrounding the role of the Supreme Court. For instance, President
Franklin Roosevelt’s frustration with the Court’s decisions concerning the
86. The Anti-Federalist: Writings by the Opponents of the Constitution, An Abridgment, by Murray
Dry, of the Complete Anti-Federalist edited by Herbert J. Storing (Chicago: University of Chicago
Press, 1985), 168-69.
87. Ibid., 167.
88. The Federalist, 81/420. He thought that “degrading them [judges] from their stations” “ought to
remove all apprehensions” on this score.
89. Ibid., 78/402.
90. Ibid., 78/404.
289
constitutionality of elements of his New Deal program in the mid-1930’s, which
resulted in his famous “court packing” proposal,”91 can best be understood in
Hamilton’s framework, namely, that the Court was exercising “will” by substituting
its “own pleasure to the constitutional intentions of the legislature.”92 Similarly, at
various times throughout American history, critics have inveighed against the
Court’s use of “substantive due process” whereby the Court invalidates laws
because it regards their substance to be objectionable.93 In recent decades critics
have also contended that the Court has reached even a new plateau of power
through judicial legislation, i.e., going beyond simply nullifying a law to, in effect,
legislate by mandating change along judicially determined lines.94 Indeed, so
much is conceded by advocates of the non-interpretive or judicial activist school of
thought who see the courts charged with special responsibilities to advance the
ideals and rights implicit in the Constitution or to correct the political failures
resulting from “gridlock” in the political processes. Their position, in turn, is
challenged by “orginalists” and “textualists” who subscribe in principle to Hamilton’s
vision of the Court’s role.
Volumes could be written over the in and outs of debate surrounding the
Court and its proper role in the American system. The questions surrounding this
issue are now central to intellectual disputations over the nature of the Constitution
and the wider American political tradition. Suffice it to say here that the Court is no
longer the weakling portrayed by Hamilton. Two developments, both of them
revealing of the American experience with the separation of powers, account for
the growth of judicial power. As most students of the American system would
readily acknowledge, the first involves the Fourteenth Amendment added to the
Constitution after the Civil War and whose purpose, by all evidences, was to
protect the civil rights of the newly freed slaves. In light of subsequent
developments the most significant portion of this Amendment is found in section 1
91. Roosevelt’s plan was to appoint one new justice for each sitting justice over the age of 70.
That a Senate with a large Democratic party majority rejected this plan, offered by a popular
Democratic president, gives some measure of the prestige enjoyed by the Supreme Court among
the people.
92. The Federalist, 78/405.
93. Perhaps the most notorious example of substantive due process is Dred Scott v. Sandford, 19
How. 393 (1857). Here the Court held slaves to be property and then invalidated congressional
legislation (the Missouri Compromise) on grounds that it violated the “due process” clause of the
Fifth Amendment in abridging property rights, Lochner v. New York, 198 U.S. 45 (1905), in which
the Court employed “liberty” of the “due process” clause of the Fourteenth Amendment to
invalidated state regulation of working hours for bakers as unreasonable, is widely used to illustrate
the overreach of judicial power.
94. For a thoughtful and pioneering work dealing with the ramifications of this development, see
Charles S. Hyneman, The Supreme Court on Trial (New York: Atherton Press, 1963). Works
dealing with one or more aspect of this development are far too numerous to cite. A good
introduction with bibliography is Modern Constitutional Theory: A Reader, 5th ed., eds. John H.
Garvey and T. Alexander Aleinikoff (St. Paul, Minnesota: West Group, 2004).
290
that provides: “nor shall any State deprive any person of life, liberty, or property,
without due process of law, nor deny to any person within its jurisdiction the equal
protection of the laws.” Congress it appears was to play a major role in defining
and enforcing the provisions of the Amendment since section 5 reads: “The
Congress shall have power to enforce, by appropriate legislation, the provisions of
this article.” Over the decades, however, the Supreme Court has become the
chief enforcer of the “due process” and “equal protection” clauses. Using primarily
the “liberty” of the due process it has “nationalized” the major provisions of the Bill
of Rights by mandating their uniform application in the states. The Court,
moreover, has employed Fourteenth Amendment to make decision that many
contend are among most critical in determining the character of American
society.95 Its decisions relating to abortion, school prayer, government aid to
religious schools, reapportionment, pornography and obscenity, the death penalty,
libel and slander, affirmative action, school busing, and, among others, the rights of
the criminally accused have engendered enormous controversy. The Court’s critics
contend that in many instances it has intruded on the legislative domain and that,
what is worse, its decisions on these and like matters, based as they are on
constitutional grounds, have effectively removed from legislative purview concerns
that are best handled through the political processes at either state or national
levels. The remedy suggested by the critics is the judicial self-restraint; a restraint
in keeping with the morality set forth by Hamilton.
The second development, one designed to place the Court’s decisions
outside the realm of the normal political processes, is the Court’s assertion that its
interpretation of the Constitution is final, authoritative, and binding on the other
branches of government.96 This pronouncement scarcely caused a stir largely
because it only reaffirmed what, as noted above, was already acquiesced to by the
other branches over the course of the Twentieth Century. Yet, this position is at
odds with that held by “strong” presidents of the past, including Jefferson, Jackson,
and Lincoln.97 What is more, the Court’s position encounters a serious theoretical
difficulty arising from the fundamental law theory, the very theory originally used to
justify judicial review: the Court no less that the Congress is a “creature of the
Constitution” and bound by its terms. The logic of the fundamental law theory, in
other words, allows for the possibility that the Supreme Court can itself act
unconstitutionally. Critics of activist Courts are essentially asserting this in arguing
that the Court, contrary to the fundamental law (the rules to which the people
95. For a typical, hard-hitting critique that makes this and the following points see, Lino Graglia,
“How the Constitution Disappeared” in Interpreting the Constitution, Jack N. Rakove, ed. (Boston:
Northeastern University Press, 1990).
96. Cooper v. Aaron, 358 U.S. 1 (1958).
97. Both Jackson and Jefferson would maintain that a president is not constitutionally obliged to
enforce decisions of the Supreme Court. Lincoln’s position was more nuanced. He did not accept
the proposition that the Constitution necessarily means what the Court says and that it is legitimate,
when the Courts errs, to use a variety of political means to force reconsideration of and change in
the Court’s view.
291
agreed to govern themselves), has itself breached the constitutional separation of
powers by assuming legislative powers.
Obviously, the controversies over the role of the Court are not going to be
resolved by the Court’s affirmation that it is the sole judge of the extent of its
powers. Nor does the doctrine of separation of powers as it has been developed
through practice in the United States provide any clear answer to the question of
how the courts are to be kept within bounds. Hamilton’s belief that removal of
judges through the impeachment process would serve to keep judges in line has
been superseded by a new constitutional morality that has prevailed since the time
of the Samuel Chase impeachment trial, namely, judges should not be removed for
their decisions or unpopular political views 98 Congress has other weapons at its
disposal, such as curtailing the Supreme Court’s appellate jurisdiction which, due
to political and pragmatic considerations, have been resorted to infrequently.
Presently, as in the past, recourse to the political processes has been the primary
means to direct and control the Court. Thus, in recent decades, a major issues in
presidential campaigns have centered on the differences between the candidates
over their views on the role of the Court and the ideological orientations of the
justices they might appoint. This has alarmed some because the composition of
the Supreme Court now involves partisan considerations to an unprecedented
extent, thereby undermining its image as an impartial body exercising judgment,
not will.99
V. CONCLUSION AND OVERVIEW
The understanding of the constitutional separation of powers – the functions of the
branches and their relationship to one another – has changed significantly since
the Constitution emerged from the Philadelphia Convention. Perhaps the most
notable change relates to the relative position of Congress. Whereas it was
intended to be the predominant branch, it status in relation to the other branches
has clearly diminished over the decades. As noted at the outset, it still retains all of
its original constitutional powers and more, particularly an expansive commerce
power. Yet, both the president and the courts have been assertive to a degree that
many believe has intruded upon Congress’s legislative domain. Certainly, in
practice, there is no question that they have acquired powers which have curtailed
98. On the significance of the Chase episode see:William H. Rehnquist, Grand Inquests: The
Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (New York:
Morrow, 1992). Only one Supreme Court justice has been impeached, Samuel Chase, and he was
not removed by the Senate. Since 1789 eleven federal judges have been impeached; seven
removed from office. In all cases but one the charges against judges involved indictable crimes.
See
99. Robert H. Bork, whose nomination to the Supreme Court was rejected by the Senate after an
intense and highly emotional political struggle, has written concerning the potential costs and
dangers of this development. See The Tempting of America (New York: The Free Press, 1990).
292
the scope of congressional authority.
Now, to be sure, Congress has retaliated in an effort to regain lost powers or
to asserts its predominance. After the Civil War, Congress reasserted its
preeminence by initiating and directing policies for the so-called “Reconstruction” of
the defeated states of the Confederacy. But, in the annals of American
constitutional history, the Reconstruction Congresses are unique. The more
common practice, exemplified when president Nixon was politically weakened
during the Watergate scandal, is to legislate in targeted, but crucial, areas. Thus,
in 1973 Congress managed to pass the War Powers Resolution over Nixon’s veto.
This Resolution was designed to curb the president’s powers to unilaterally commit
troops “into hostilities or situations where imminent involvement in hostilities is
clearly indicated by the circumstances.”100 Coming on the heels of a long and
unsuccessful war in Viet Nam, whose authorization rested on a single
congressional resolution passed soon after a presumed attack on American naval
forces when passions were aroused,101 Congress clearly wanted to curb the
president’s power as commander-in-chief to unilaterally commit the nation to
sustained hostilities abroad. Likewise, with the Budget and Impoundment Act of
1974,102 Congress sought regain control of the budgetary process that over the
decades, beginning with the passage of the Budget and Accounting Act in 1921,
had come largely an executive responsibility. The Budget and Impoundment Act
also made it far more difficult for the executive to impound funds appropriate funds
– i.e., to delay, sometimes indefinitely, the expenditure of appropriated funds for
reasons usually related to efficiency and budgetary concerns – a prerogative dating
back to Jefferson’s administration.103
These relatively recent congressional efforts to curb the president’s capacity
to unilaterally commit the nation to war and to recapture effective control over the
budgetary process, two critically imporant powers, are noteworthy, not for their
effectiveness, but because they illustrate the difficulties involved trying to tame the
executive. Every president since Nixon has held the War Powers Resolution to be
an infringement on the president’s constitutional authority as commander-in-chief
and as the nation’s chief agent in foreign affairs. This view that has gained
considerable currency with the Court’s decision declaring congressional vetoes,
100. War Powers Resolution, 7 November 1973, Public Law 93-148, Section 2 (a). Available at
101. This was the famous Gulf of Tonkin Resolution. See
American naval ships were attacked is now very much in doubt.
102. The Budget and Impoundment Act, July 12, 1974, Public Law 93-344; 88 Stat. 297-339.
Available at
103. The Act provided that both chambers must approve any impoundment within 45 days. If not,
the funds must expended.
293
either one or two house, unconstitutional (see above). In practice, presidents
simply have not complied fully with the provisions of the War Powers Act normally
by simply refraining from declaring that American forces are being sent into hostile
situations so that provisions relating to congressional approval are never triggered.
For different reasons the budget and impoundment measures have not worked out
as anticipated. The benefits expected from a comprehensive view of the budget,
principally budgetary ceilings and limits on deficit spending, have not been
forthcoming in practice. Partly for this reason, Congress has slowly come to see
the virtues of discretionary presidential impoundment which it unsuccessfully
sought to restore through a limited item veto (see above).104
The growth of executive and judicial powers, often at the expense of
Congress, can be attributed in large measure to emergence of political parties.
Madison, it should be remembered, counted on “opposite and rival interests” to
preserve the constitutional division of powers; that is, more specifically, a union or
merger of the interest of the office holder with “the constitutional rights of the
place.” Thus, he anticipated that a congressional intrusion into what the executive
felt to be his legitimate domain would be met by a veto. Similarly, Congress could
be expected to take measures to nullify or repel actions by the president or courts
that it perceived to be an invasion of the legislative realm. Yet, with the emergence
of political parties and their quest for the control of government — which, with its
enormous growth in the Twentieth Century, involves the allocation of resources of
a magnitude scarcely imaginable at the time of founding – partisan considerations,
not institutional interests, have come to dominate. This means that Senators and
Representatives of the president’s political party, short of gross malfeasance or
criminal conduct, will support their president’s action even those which do intrude
upon legislative authority.105 To do otherwise, to act upon institutional interest,
would be to undermine the party and its chances of retaining the presidency, the
only national office and the prize for which both parties vie. Partisanship, albeit in
a different way, is also an important factor when it come to Congress’s reaction to
the Court’s expansion of power. Quite aside from the esteem it enjoys as
institution, the Court is unlikely to issue any controversial decision matter that will
not find sufficient political backing in Congress to forestall retaliation. It may be set
down as a general proposition that in the halls of Congress any issue involving
disputes over the separation of powers, no matter how genuine it may be, will soon
or late be reduced to a partisan controversy.
Partisanship, however, has not completely eclipsed institutional interests.
104. Although the Court declared the first effort in this direction unconstitutional, congressional
efforts continue to formulate a process that would pass constitutional muster and give the president
this authority.
105. Nixon was clearly going to be impeached and removed from office when he resigned. But the
entire affair took months and the loss of party support in the Congress due to the evidences of
indictable actions. In the absence of such evidence, the party will stick with its president as
evidenced in the Clinton impeachment and trial.
294
295
Presidents, more frequently than not, have sought to advance purely institutional
interests, to a great degree motivated by their desire to secure a “legacy” that will
be looked upon favorably by future generations. American historians and political
scientists, for instance, almost invariably rank “strong” presidents, those who
protect and expand executive powers, as among the “great” or “near great.” On
the other hand, one cannot expect the same degree of institutional interest and
concern over “legacy” to be manifest among the membership of large legislative
bodies since the rewards are more dispersed. These factors, taken together, help
to account for the growth of executive powers, especially when one party controls
both the legislative and executive branches. Under these circumstances any
resistance to presidential intrusions into the legislative realm on constitutional
grounds is likely to be characterized as simply “party politics.”
Looking back on the Framers’ handiwork after more than two centuries of
operation, certain conclusions seem warranted. The most important is that they
had no way to foresee the role political parties would play in the evolution of the
design. The “balance” they sought has been thrown out of kilter by the growth of
parties, specifically by the growth of executive and judicial powers. In this regard, it
is also evident that while they were concerned to prevent a congressional
overreach, they seemed to believe — perhaps because of the political culture of
their time — that the judiciary would pose no danger to the constitutional
separation. For these reasons, it is hardly surprising that in modern times the two
most contentious issues in both intellectual and political circles involving the
separation of powers turn out to be the proper role of the courts and whether the
executive has accumulated too much power.
In the American system of separated powers today, each branch in its own
way can direct the resources of society or authoritatively allocate values, powers
largely delegated to Congress by the Constitution. Patterns of expectation have
developed over time regarding the general domain of each branch, so that despite
very real tensions, both theoretical and practical, the system works tolerably
well.106 Underlying this, however, is a very basic question: Can any system of
separated powers deal with the real dangers to self-government and the rule of law
posed by the necessity to delegate powers in the modern nation state?
106. Many critics of the system would disagree with this assessment by citing what is now called
“gridlock,” principally the inability of Congress and the president to agree upon priorities and
specific legislative remedies to acknowledged economic and social problems. Most who seek basic
constitutional reform attribute this gridlock to the constitutional separation of powers. For various
formulation of this view see Reforming American Government, ed. Donald L. Robinson.
Separation of Powers: An Overview
Matthew E. Glassman
Analyst on the Congress
January 8, 2016
Congressional Research Service
7-5700
www.crs.gov
R44334
Separation of Powers: An Overview
Congressional Research Service
Summary
Congress’s role and operation in national politics is fundamentally shaped by the design
and
structure of the governing institution in the Constitution. One of the key principles of the
Constitution is separation of powers. The doctrine is rooted in a political philosophy that aims to
keep power from consolidating in any single person or entity, and a key goal of the framers of the
Constitution was to establish a governing system that diffused and divided power. These
objectives were achieved institutionally through the design of the Constitution. The legislative,
executive, and judicial branches of the government were assigned distinct and limited roles under
the Constitution, and required to be comprised of different political actors. The constitutional
structure does not, however, insulate the branches from each other. While the design of the
Constitution aims, through separation, to prevent the centralization of power, it also seeks the
same objective through diffusion. Thus, most powers granted under the Constitution are not
unilateral for any one branch; instead they overlap.
The constitutional structure of separation of powers invites conflict between the branches,
particularly between Congress and the President. The electoral structure of the federal
government provides not only separate bases of authority, but also different bases of authority for
political actors, as well as different time horizons. Likewise, the assignment of powers under the
Constitution is not only overlapping, but also somewhat vague, creating inter-branch contests for
power across many key functions of the government. Finally, numerous questions of authority are
not even addressed by the Constitution.
Although each branch has strong incentives to protect its prerogatives, in many cases individual
political actors have incentives that run counter to their institutional affiliation. In particular,
political actors will often, quite reasonably, place the short-term achievement of substantive
policy goals ahead of the long-term preservation of institutional power for their branch of
government. Likewise, partisan or ideological affiliations will at times place political actors at
cross
purposes, where they will be forced to choose between those affiliations and their branch
affiliation. Such anti-branch incentives are important contours to consider for political actors
seeking to increase the power of their own branch.
The problem of institutional power coming into conflict with other goals is particularly acute for
Congress, especially in relation to the executive branch. As individual members of a large body,
Representatives and Senators may not believe they have the responsibility or the capacity to
defend the institution. Those who may feel such responsibility, such as party and chamber leaders,
will often find themselves in situations in which policy or party goals, either their own personal
ones or those of their caucus, come into direct conflict with institutional goals. Even when
Congress does choose to institutionally defend itself, it often finds itself speaking with less than a
unified voice, as only the most vital institutional powers have the ability to unify Congress.
This report provides an overview of separation of powers. It first reviews the philosophical and
political origins of the doctrine. Then it surveys the structure of separation of power in the
Constitution. It next discusses the consequences of the system, for both the institutions and for
individual political actors. Finally, there is a discussion of separation of powers in the context of
contemporary politics.
Separation of Powers: An Overview
Congressional Research Service
Contents
Introduction ……………………………………………………………………………………………………………………. 1
The American System in Global Context ………………………………………………………………………. 1
Conflict by Design …………………………………………………………………………………………………….. 2
Separation of Powers: Origins …………………………………………………………………………………………… 2
Philosophical Roots ……………………………………………………………………………………………………. 3
Functions of Government ……………………………………………………………………………………… 3
Enlightenment Thought ………………………………………………………………………………………… 4
Colonial Experiences …………………………………………………………………………………………………. 5
Colonial Government ……………………………………………………………………………………………. 5
Revolutionary Grievances ……………………………………………………………………………………… 6
Early American Challenges ……………………………………………………………………………………. 6
The Framers in Context ………………………………………………………………………………………… 7
Separation of Powers: Structure ………………………………………………………………………………………… 8
Separate Institutions …………………………………………………………………………………………………… 8
Distinct Roles and Authority ………………………………………………………………………………….. 8
Separate Personnel ……………………………………………………………………………………………….. 8
Independent Electoral Bases ………………………………………………………………………………….. 9
Independent Resources and Support ……………………………………………………………………….. 9
Checks and Balances ………………………………………………………………………………………………… 10
Overlapping Responsibility …………………………………………………………………………………. 10
Appointment and Removal Authority ……………………………………………………………………. 10
Investigations ……………………………………………………………………………………………………… 11
War and Foreign Policy………………………………………………………………………………………… 11
Separation of Powers: Consequences ……………………………………………………………………………….. 12
Conflict …………………………………………………………………………………………………………………… 12
Separate Bases of Authority, but Also Different Bases of Authority…………………………… 12
Vague Powers …………………………………………………………………………………………………….. 13
Unconsidered Questions ……………………………………………………………………………………… 14
Institutional Power …………………………………………………………………………………………………… 14
Asserting and Guarding Power …………………………………………………………………………….. 14
Public Prestige …………………………………………………………………………………………………… 15
Political Capacity ……………………………………………………………………………………………….. 15
Consequences for Individual Political Actors ………………………………………………………………. 16
Cross-Purposes …………………………………………………………………………………………………… 16
A Particularly Congressional Problem …………………………………………………………………… 17
Lessons for Those Seeking to Increase Institutional Power ………………………………………. 17
Contemporary Issues ……………………………………………………………………………………………………… 18
Concluding Observations ……………………………………………………………………………………………….. 19
Contacts
Author Contact Information ……………………………………………………………………………………………. 20
Separation of Powers: An Overview
Congressional Research Service 1
Introduction
Congress’s role and operation in national politics is fundamentally shaped by the design and
structure of the governing institutions in the Constitution. One of the key principles of the
Constitution is separation of powers. The doctrine is rooted in a political philosophy that aims to
keep power from consolidating in any single person or entity, and a key goal of the framers of the
Constitution was to establish a governing system that diffused and divided power. Experience
with the consolidated power of King George III had led them to believe that “the accumulation of
legislative, executive, and judicial powers in the same hands … [was] the very definition of
tyranny.”
1
These objectives were achieved institutionally through the constitutional separation of powers.
The legislative, executive, and judicial branches of the government were assigned distinct and
limited roles under the Constitution, and required to be comprised of different political actors.
The elected branches have separate, independent bases of authority, and specific safeguards
prevent any of the branches from gaining undue influence over another.
The constitutional structure does not, however, insulate the branches from each other. While the
design of the Constitution aims to prevent the centralization of power through separation, it also
seeks the same objective through diffusion. Thus, most powers granted under the Constitution are
not unilateral for any one branch; instead they overlap. The President has the power to veto
legislation; the Senate must approve executive and judicial nominations made by the President;
the judiciary has the power to review actions of Congress or the President; and Congress may, by
supermajority, remove judges or the President from power.
This report provides an overview of separation of powers. It first reviews the philosophical and
political origins of the doctrine. Then it surveys the structure of separation of power in the
Constitution. It next discusses the consequences of the system, for both the institutions and for
individual political actors. Finally, there is a discussion of separation of powers in the context of
contemporary politics.
The American System in Global Context
The American system of separation of powers is not the most common arrangement of democratic
institutions in the modern world. Most modern democracies are parliamentary systems, in which
the legislative branch is sovereign, and the executive has no independent constitutional base of
authority, instead being chosen by the legislature.
2
Indeed, even when the United States has
participated in the construction of democratic governments in the 20
th
and 21
st
centuries—in
Germany and Japan after World War II; in Iraq in the first decade of the 21
st
century—the chosen
structure has been parliamentary, not an American system of separated powers.
1
James Madison, “The Federalist No. 47,” in Alexander Hamilton, James Madison, and John Jay, The Federalist
Papers (Clinton Rossiter, ed.) (New York: Penguin, 1961), p. 301.
2
Arthur, Gunlicks, Comparing Liberal Democracies (Bloomington, IN: iUniverse, 2011), p. 26. For further discussion
of parliamentary systems in comparison with separation of powers systems, see Arend Lijphart, Parliamentary Versus
Presidential Government (London: Oxford University Press, 1992); Matthew Soberg Shugart and John M. Carey,
Presidents and Assemblies: Constitutional Design and Electoral Dynamics (New York: Cambridge University Press,
1992); Terry M. Moe and Michael Caldwell, “The Institutional Foundations of Democratic Government: A
Comparison of Presidential and Parliamentary Systems,” Journal of Institutional and Theoretical Economics, vol. 57,
no. 2 (1994); Bruce Ackerman, “The New Separation of Powers,” Harvard Law Review, vol. 113, no. 3 (2000).
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This is perhaps, in part, because experience has suggested mass democracy and legislative
supremacy—two (at the time) untested concepts that concerned the framers of the U.S.
Constitution in the 18
th
century—to be satisfactory arrangements for stable democratic governing.
There is also a widely held contemporary belief that modern democracy is inherently based on
political parties and that parliamentary systems produce stronger parties.
3
Neither of those
prospects would have sat well with the framers of the American Constitution, who were skeptical
of political parties.
Finally, parliamentary systems are often encouraged for fledgling democracies because they tend
to produce unified governments that can relatively easily legislate and implement policy without
difficulty, allowing for smoother government functioning during the dangerous and unstable early
stages of a new national governing system.
4
At their core, parliamentary systems are based on
contested elections followed by unified party control of the powers of government. This is quite
emphatically not the case with the American system. Our constitutional system is based on
contested elections followed by separated control of the powers of governing. The system, by
design, produces conflict.
Conflict by Design
The constitutional structure of separation of powers invites conflict between the branches,
particularly between Congress and the President.
5
The electoral structure of the federal
government provides not only separate bases of authority, but also different bases of authority for
political actors, as well as different time horizons. Likewise, the assignment of powers under the
Constitution is not only overlapping, but also somewhat vague, creating inter-branch contests for
power across many key functions of the government. Finally, numerous questions of authority are
not even addressed by the Constitution.
Although each branch has strong incentives to protect its prerogatives, in many cases individual
political actors have incentives that run counter to their institutional affiliation. In particular,
political actors will often, quite reasonably, place the short-term achievement of substantive
policy goals ahead of the long-term preservation of institutional power for their branch of
government. Likewise, partisan or ideological affiliations will place political actors at cross
purposes, where they will be forced to choose between those affiliations and their branch
affiliation. Such anti-branch incentives are important contours to consider for political actors
seeking to increase the power of their own branch.
Separation of Powers: Origins
In order to fully illuminate the contemporary implications of our separation of powers system, it
is helpful to understand its origins. The structure of the Constitution reflects the collective
preferences of the state delegates who drafted it in 1787. These preferences were chiefly shaped
by two things: the political philosophy of the colonial Americans, and their actual political
3
E.E. Schattschnieder, Party Government (New York: Farrar and Rinehart, 1942), p. 1; John Gerring, Strom C.
Thacker, and Carola Moreno, “Are Parliamentary Systems Better?” Comparative Political Studies, vol. 42, no. 3
(March 2009), p. 330; Matthew Soberg Shugart, “The Inverse Relationship Between Party Strength and Executive
Strength: A Theory of Politicians’ Constitutional Choices,” British Journal of Political Science, vol. 28, no. 1 (1998).
4
Gerring, Thacker, and Moreno, “Are Parliamentary Systems Better?” p. 334; Juan Jose Linz, “The Perils of
Presidentialism,” Journal of Democracy, vol. 1., no. 1 (1990).
5
Linz, “Perils of Presidentialism,” p. 258.
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experiences as English colonists. The fingerprints of both can be found throughout the legislative
debate at the constitutional convention, the arguments for and against the Constitution during the
ratification debate in the states, and, of course, in the text of the Constitution itself. Undoubtedly,
the colonists’ philosophy also shaped how they understood their colonial interactions with
London, and vice versa, making it difficult if not impossible to untangle the degree to which
either had primacy in shaping the Constitution. What is clear, however, is that by 1787, the
philosophy and the experiences of the framers had created something of a consensus among them
about how an optimal government should be structured.
6
Philosophical Roots
The political theory underlying the constitutional separation of powers goes back thousands of
years, and traces its development through many eminent philosophers, among them Aristotle,
Aquinas, Machiavelli, Locke, and Montesquieu. Virtually all of these philosophers were living
under non-democratic systems of government, or systems of very limited democracy that did not
feature separation of powers. Therefore, much of their writing is either normative—what should
such a system look like?—or applied to non-democratic governing structures. As a result, much
of the development of the philosophy ignored the practical problems of establishing a separation
of powers democracy, and by the time of the American Revolution, left the framers long on
theory but short on practical advice.
Functions of Government
The conceptual roots of separation of powers are usually attributed to ancient Greek and Roman
writers. Aristotle is typically credited with articulating the first conception of government as
divided into three basic functions or “powers,” which he labeled “deliberative,” “magisterial,”
and “judicial,” and which roughly correspond to the contemporary notions of legislative,
executive, and judicial roles of government.
7
The ancient philosophers, however, did not
conceptualize the possibility of (or benefit of) separating these functions among different officials
or institutions. In both Athens and Rome, the various functions were often taken on by single
entities.
8
Later philosophers tied this concept of functions to the idea of a “mixed government,” in which
the interests of society would be balanced through the use of multiple forms of government.
9
This
formed the basis of pre-modern English government for centuries: a hereditary monarchy, limited
in its authority by a legislature consisting of elements of aristocracy (House of Lords) and
democracy (House of Commons). While the “mixed government” system did not separate
functions by institution, it did promote the idea that liberty for all could be enhanced by blocking
any individual or entity from dominating government. Since these classes of society were rigid,
6
This is not to say that a similar public consensus existed. Indeed, as the ratification process proceeded in 1787 and
1788, organized opposition to the new Constitution arose in most states.
7
Aristotle, Benjamin Jowett, and H. W. Carless Davis (translators), Aristotle’s Politics (Oxford: Clarendon Press,
1920), pp. 84-87; Thomas L. Pangle, Aristotle’s Teaching in the “Politics” (Chicago: The University of Chicago Press,
2013), pp. 195-197.
8
Robert Niven Gilchrist, Principles of Political Science (New York: Longmans, Green, and Co., 1921), p. 289.
9
These philosophers include Polybius in The Histories, Cicero in The Republic, Aquinas in Summa Theologica, and
Machiavelli in Discourses. Polybius,W. R. Paton, F. W.Walbank, and Christian Habicht, The Histories, Volume I-VI
(Cambridge: Harvard University Press , 2011); Thomas Aquinas, The Summa Theologica (Westminster, MD: Christian
Classics, 1981); Marcus Tullius Cicero, J.G.F. Powell, and J.A. North, Cicero’s Republic (London: Institute of
Classical Studies, 2001); Nicollo Machiavelli, Ninian Hill Thomspon, Discourses (New York: BN Publishing, 2005).
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Congressional Research Service 4
their interest were perpetual and often in conflict. By combining them in the various forms into
the government, none would gain the power necessary to dominate the others.
Enlightenment Thought
The modern conception of separation of powers developed largely among 17
th
and 18
th
century
Enlightenment thinkers. Although many writers were active in this area, John Locke and
Montesquieu are usually given credit for articulating the philosophy. In the Second Treatise on
Government, Locke argues that a division between the legislative and executive powers is
fundamentally necessary to secure the liberty of the people. If the two functions are fused into a
single person or entity, the likely result is tyranny. Locke also explains the concept of a “mixed
government,” in which multiple forms of governing—monarchy, oligarchy, democracy—are
simultaneously used.
10
The fully formed conception of separation of powers as understood by the framers of the
Constitution is credited to Montesquieu. In The Spirit of Laws, Montesquieu identifies three
powers of the government: legislative, executive, and judiciary. He then argues for their
placement in the hands of different people or entities:
When the legislative and executive power are united in the same person, or in the same
body of magistrates, there can be no liberty, because apprehensions may arise, lest the
monarch or Senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again there is no liberty, if the judiciary power be not separated from the legislative and
executive. Were it joined with the legislative, the life and liberty of the subject would be
exposed to arbitrary control, for the judge would then be the legislator. Were it joined to
the executive power, the judge might behave with violence and oppression.
There would be an end of every thing, were the same man, or the same body, whether of
the nobles or the people, to exercise those three powers, that of enacting laws, that of
executing the public resolutions, and of trying the causes of individuals.
11
Montesquieu also provides the basis for the concept of checks and balances, writing that the
executive power and legislative power should be “restrained” by each other.
12
For Montesquieu,
the critical executive restraint on the legislature is the veto; the “power of rejecting” legislation.
The critical restraint of the legislature is the annual power of the purse, for if “the executive
power [were] to determine the raising of public money … liberty would be at an end.”
13
At the heart of the theory is a simple proposition about human nature: as noted by James
Madison, men are not angels, and left unrestrained they will tend to abuse power.
14
To leave one
man as both lawmaker and judge, for Locke, was to invite tyranny. Drawing on the Aristotelian
description of the various “functions” of government, Montesquieu envisioned a government
structure that would preclude the tyrannical combinations, by isolating what he saw as the three
prime functions: making laws, executing laws, and trying alleged lawbreakers.
15
10
John Locke and Peter Laslett, Two Treatises of Government ( New York: Mentor Books, 1965).
11
Charles de Secondat, Baron de Montesquieu, and Thomas Nugent, Sprit of Laws (New York: The Colonial Press,
1899), p. 151.
12
Ibid., p. 160.
13
Ibid., p. 160.
14
James Madison, “The Federalist No. 51,” in Alexander Hamilton, James Madison, and John Jay, The Federalist
Papers (Clinton Rossiter, ed.) (New York: Penguin, 1961), p. 322.
15
Spirit of Laws, pp. 151-159.
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Colonial Experiences
It is unclear to what degree these philosophies influenced colonial thinking in the late 18
th
century. What is not unclear is how the structure of colonial governance provided ample reason
for the colonists to become wary of the consolidation of power. Experience with the consolidated
power of King George III had led them to believe that “the accumulation of legislative, executive,
and judicial powers in the same hands … [was] the very definition of tyranny.”
16
Experience with
the royal governors of the colonies led them to distrust institutions that had mixed government
functions. And experience with legislative democracy in the fledgling states during the 1780’s had
reinforced their concerns about the potential for “elective despotism.”
17
Colonial Government
The majority of the colonies in North America were run by “mixed governments,” much like the
central British government.
18
Eligible colonists were allowed to elect representatives to the lower
chamber of an assembly, but the governor was appointed by the crown, and in addition to the
executive duties, had significant influence across the other functions of government. The royal
governor typically had absolute veto over colonial statutes, appointment authority for the upper
chamber of the legislature (called the “governor’s council”), and the power to dissolve the
assembly.
19
The governor’s council also typically served as the highest court in the colony.
The
assembly did have some checks on the governor—most notably control over his salary and
authority over taxation.
20
This arrangement served the colonists fairly well during most of the 18
th
century. The indifference
of parliament and the crown toward the administration of government in the colonies resulted in a
political culture that was much more democratic in character than the culture in England proper.
21
Having developed a norm of self-government during the first half of the 18
th
century, the tighter
control over colonial government exhibited by parliament and the crown after the conclusion of
the French and Indian War caused significant tension between the colonists and British
government.
22
When the colonists sought to address these problems, they found that the
institutions of the colonial governments were not well-suited to successfully challenging the
crown once the crown was intent on an active approach to colonial administration.
23
16
James Madison, “The Federalist No. 47,” in Alexander Hamilton, James Madison, and John Jay, The Federalist
Papers (Clinton Rossiter, ed.) (New York: Penguin, 1961), p. 301.
17
Ibid., p. 311.
18
Richard C. Simmons, The American Colonies: From Settlement to Independence (London: Longman, 1976), pp. 245-
258. See also Alison G. Olson, “Eighteenth Century Colonial Legislatures and Their Constituents,” The Journal of
American History, vol. 79, no. 2 (September 1992); Jack P. Greene, “The Role of the Lower Houses of Assembly in
Eighteenth Century Politics,” Journal of Southern History, vol. 27, no. 4 (November 1961).
19
John A. Fairlie, “The Veto Power of the State Governor,” The American Political Science Review, vol. 11, no. 3
(August 1917), pp. 473-474.
20
Simmons, The American Colonies, p. 256.
21
Bernard, Bailyn, The Origins of American Politics (New York: Vintage, 1968); Wesley Frank Craven, The Colonies
in Transition, 1660-1713 (New York: Harper and Row: 1968).
22
Charles McLean Andrews, The Colonial Background of the American Revolution (New Haven: Yale University
Press, 1924).
23
Ibid.
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Revolutionary Grievances
Once the crown took a greater interest in the administration of colonial government, the
democratic character of the colonial governments receded and the power of the governors, and
the direct power of the crown, under the system became apparent.
24
In common thought about the
American Revolution, much is made about the lack of representation of the colonies in the
English parliament.
25
Even a cursory reading of the Declaration of Independence, however,
reveals that most of the particular grievances of the colonists revolved around the administration
of government within the colonies, and that many of those grievances were framed as problems
with the fusion of government functions under the crown.
For example, the list of facts provided in the Declaration includes the following charges against
the king:
He has dissolved Representative Houses repeatedly;
He has refused for a long time, after such dissolutions, to cause others to be
elected;
He has called together legislative bodies at places unusual, uncomfortable, and
distant;
He has refused to Assent to laws … for the public good; and
He has made Judges dependent on his Will alone, for their tenure and …salaries.
These specific grievances suggest a developing colonial belief that the separation of powers was a
prerequisite for a government that sought to preserve liberty, and that the centralization of such
powers would necessarily lead to oppression and tyranny.
Early American Challenges
Following independence, the newly independent states began to pursue governmental structures
more closely aligned with our modern view of the separation of powers. Between 1776 and 1780,
all 13 original states drafted new state constitutions. The colonial and revolutionary experience,
however, also took on a strong anti-executive character. The colonial assemblies, after all, had
been the branch of government controlled by the colonists and their principal source of
governmental power. The dissatisfaction with the king and the colonial governors led many
colonists in the 1770s to believe that strong legislatures were the key feature of optimal
governments.
26
Early on, in 1776 and 1777, many of the new states adopted new systems of government with
weak and dependent executive branches.
27
In Delaware, Virginia, and New Jersey, the governor
would be appointed by the legislature and had no veto or appointment authority.
28
In
Pennsylvania, there would be no single executive; a council chosen by the legislature would take
24
Ibid.
25
Ibid.
26
Gordon Wood, The Creation of the American Republic, 1776-1787 (New York: Norton and Co.: 1969), pp. 127-160.
27
Willi Adams, The First American Constitutions: Republican Ideology and the meaning of the State Constitutions
(Lanham, MD: Rowman and Littlefield: 2001); Lawrence M. Friedman, “State Constitutions in Historical Perspective,”
Annals of the American Academy of Political and Social Science, vol. 496, no. 1 (March 1988), pp. 33-42.
28
Virginia Constitution (1776), § 6; Delaware Constitution (1776) § 7; New Jersey Constitution (1776) § 7.
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on the role.
29
Likewise, the national government under the Articles of Confederation contained no
independent executive or judicial branch, instead leaving the creation of those functions up to the
national legislature.
30
Other states, however, adopted constitutions featuring separation of powers more in line with the
future federal Constitution. The New York constitution of 1776 provided for an independent,
elected governor with a three-year term, veto power, and appointment authority.
31
The
Massachusetts constitution (1780) required that “the legislative department shall never exercise
the executive and judicial powers… the executive shall never exercise the legislative and judicial
powers … the judicial shall never exercise the legislative and executive powers … ”
32
By the early 1780s, many began to rethink investing so much power in the legislatures. Both
Thomas Jefferson and John Adams were early opponents of the legislative-dominated state
constitutions.
33
The experiences of Pennsylvania and other states with weak executives proved to
be disappointing.
34
The failure of the Articles of Confederation as a national governing document
further eroded belief in government by legislature alone.
35
The Framers in Context
By the time the framers met to amend the Articles of Confederation, public opinion in the
colonies had followed a meandering path, largely rejecting both the tyranny of an unchecked
executive and the tyranny of an unchecked legislature. The proper arrangement of government for
the enhancement of liberty is thus, they believed, one in which no one can gain unilateral power,
and no power goes unchecked. As Madison argued in the Federalist Papers, the objective of the
framers was to preclude a “faction” from gaining monopoly control of the government.
36
The framers viewed human nature as inherently bad, and suspected that the natural inclination of
men is to abuse power. Tyranny, to them, was “the accumulation of all powers, legislative,
executive, and judiciary, in the same hands.”
37
To separate the functions of government into
independent branches was necessary but not sufficient. Each branch would also need the ability to
stand as a check against the others. No branch, however, would possess an overruling influence
over the others, and each would be provided with the necessary means to resist encroachment
from the others.
38
29
Pennsylvania Constitution (1776) § 3.
30
Articles of Confederation (1781) § IX.
31
New Yok Constitution (1776) § XVII.
32
Massachusetts Constitution (1780) § XXX.
33
Wood, The Creation of the American Republic, p. 161.
34
Ibid., pp. 393-467.
35
Jack Rakove, “The Legacy of the Articles of Confederation,” Publius, vol. 12, no. 4 (Autumn 1982), pp. 45-66.
36
James Madison, “The Federalist No. 10,” in Alexander Hamilton, James Madison, and John Jay, The Federalist
Papers (Clinton Rossiter, ed.) (New York: Penguin, 1961), pp. 77-83.
37
James Madison, “The Federalist No. 47,” in Alexander Hamilton, James Madison, and John Jay, The Federalist
Papers (Clinton Rossiter, ed.) (New York: Penguin, 1961), p. 301.
38
In addition, the Framers also set up a federal system in which the states maintained certain sovereign functions and
the central government had limited powers. A full discussion of federalism, however, is beyond the scope of this report.
For a general discussion of federalism, see CRS Report RL30315, Federalism, State Sovereignty, and the Constitution:
Basis and Limits of Congressional Power, by Kenneth R. Thomas.
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Separation of Powers: Structure
Translating the collective political philosophy of the founders and their constituents into a
government required the construction of institutional structures that reflected and, hopefully,
sustained their preferences. Institutional design of the new Constitution, therefore, required
careful consideration. The legislative, executive, and judicial branches of the government were
assigned distinct and limited roles under the Constitution, and political actors are restricted from
serving simultaneously in the legislature and another branch. The elected branches have separate,
independent bases of authority, and specific safeguards were designed to prevent any of the
branches from gaining undue influence over another. Although not constitutionally guaranteed,
longstanding norms also now exist that provide each branch with its own independent resources
for staffing, research, and advice.
The following section discusses four key aspects of the constitutional separation of powers:
separate roles and authorities; separate personnel; independent electoral bases; and separate
institutional supports. It then discusses the checks and balances placed with the various separate
institutions.
Separate Institutions
The legislative, executive, and judicial branches of the government are each given separate
constitutional bases of power. The executive and legislative branches are populated by leaders
who are drawn from different constituencies on different electoral timetables. And judicial branch
actors, while not elected, are insulated by tenure provisions that require supermajorities to remove
them from office.
Distinct Roles and Authority
The Constitution divides the federal government according to its core functions—legislative,
executive, and judicial—and places each function primarily in a separate institution. The three
institutions are given their distinct authority of their function, made plain by the first sentences of
each of the first three Articles. Article I begins, “All legislative power herein granted, shall be
vested in a Congress of the United states.”
39
Article II begins, “The executive power shall be
vested in a President of the United States of America.”
40
Article III begins, “The Judicial power
shall be vested in one supreme Court[.]”
41
This is separation of powers, as understood by the
founders, in the most basic sense: the President is authorized to execute the law; the Congress is
authorized to make the law; and the Court is authorized to judge the law.
Separate Personnel
The Constitution specifically prohibits individuals from serving in Congress and another branch
of the federal government. Article I, Section 6 states that “[N]o Person holding any Office under
the United States shall be a Member of either House [of Congress] during his Continuance in
Office.”
42
While this guarantees that no one will simultaneously hold position in Congress and
39
United States Constitution, Article I §1
40
United States Constitution, Article II §1
41
United States Constitution, Article III §1
42
United States Constitution, Article I §6, clause 2.
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Congressional Research Service 9
one of the two other branches, the Constitution places a further prohibition on Members of
Congress serving in any office which was created during the period for which they were elected,
or for which the salary was increased.
43
Independent Electoral Bases
The elected officials of the legislative and executive branches—the President, Vice President,
Senators, and Representatives—are all drawn from constituencies that do not normally involve
the other branches. The President and Vice President are chosen by electors from the states, all of
whom are themselves currently chosen by popular vote in the states, but are by law picked in the
manner each state legislature directs.
44
Members of Congress are specifically barred from being
electors, guaranteeing that they have no direct influence in the election of the President or Vice
President.
45
Members of the House and Senate are chosen by direct election in their districts and
states, respectively, with no input from the other branches of the federal government.
46
While the federal judiciary is not filled in an independent manner—judges are nominated by the
President and confirmed for office by the Senate—the Constitution mitigates legislative or
executive branch intrusion into the judiciary by providing federal judges with tenure “during
good Behavior,” which in practice amounts to life tenure.
47
Independent Resources and Support
Each branch of the federal government has developed its own support structure of professional
staff. Although not guaranteed in the Constitution to any branch—Congress has authorized and
continues to fund the support structures and can, in theory, remove them—strong norms exist
among both political actors and citizens that each branch of government should have the
resources to fulfill its duties under the Constitution. The resources provide information and
advice, conduct research and analysis, investigate problems, organize activities, and carry out
other assignments for their principals.
Members of Congress have personal staff, as well as committee staff and chamber-wide and
branch-wide support organizations to call on for support in the development of legislation.
48
The
President has several thousand staff in the Executive Office of the President, and can draw on
Cabinet officials or agency heads, who can in turn call on resources within the executive
departments themselves.
49
The federal judiciary has both chamber staff to assist them as well as
centralized staff in the Administrative Office of the United States Courts and several branch-wide
support organizations.
50
43
Ibid.
44
United States Constitution, Article II §1, clause 2.
45
Ibid. Under the Constitution, Congress does have a role in the election of the President and Vice President if no
candidate receives a majority of the electoral votes. See United States Constitution, Article II §1, clause 3.
46
United States Constitution, Article I §2, clause 1; Amendment XVII, clause 1.
47
United States Constitution, Article III §1.
48
For an overview of the legislative branch and its organizations, see CRS Report R44029, Legislative Branch:
FY2016 Appropriations, by Ida A. Brudnick.
49
For an overview of the President’s available resources in the Executive Office of the President, see CRS Report 98-
606, The Executive Office of the President: An Historical Overview, by Barbara L. Schwemle, available upon request.
50
For an overview of the judiciary’s resources, see CRS Report R44078, Judiciary Appropriations FY2016, by
Matthew E. Glassman.
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The Constitution prevents Congress from specifically reducing salaries of the executive and
judicial branch. Article II prohibits the adjustment of the President’s salary during his current
term of office.
51
Likewise, Article III prohibits the reduction of compensation of federal judges
during their service.
52
Checks and Balances
While the Constitution provides separate institutions and bases of power, the structure does not
insulate the branches from each other. While the design of the Constitution aims to prevent the
centralization of power through separation, it also seeks the same objective through diffusion.
Thus, most powers granted under the Constitution are not unilateral for any one branch; instead
they overlap. The President has the power to veto legislation; Senate approval is required for
executive and judicial nominations made by the President; the judiciary has the power to review
actions of Congress or the President; and Congress may, through impeachment, remove the
President, Vice President, and other “civil Officers of the United States.” As political scientist
Richard Neustadt has observed, what the Constitution created was “separate institutions sharing
each other’s power.”
53
Overlapping Responsibility
Although each branch is the primary actor in the function that corresponds to its institution, no
branch has unilateral control over its core function. Congress is vested with the legislative power,
but the President may veto legislation—ensuring him/her a bargaining position on legislation in
most cases—and has the power to call the Congress into session.
54
The Supreme Court, through
the implied power of judicial review, may declare acts of Congress and executive actions
unconstitutional.
55
The President is vested with the executive power, but Congress has legislative
control over the bureaucratic design of the executive branch and the amount of financial resources
the departments of the executive branch receive.
56
Finally, while the Supreme Court has the
judicial authority, Congress has the authority to create the inferior federal Courts and prescribe
their jurisdiction and regulations, as well as to refine legislation in response to judicial
decisions.
57
Appointment and Removal Authority
The constitutional system for filling both the offices of the executive branch and most of the
federal judiciary requires the cooperation of both the executive and legislative branches. Principal
officers of the United States, including federal judges and high-ranking executive officials are
nominated exclusively by the President, but require confirmation by the Senate.
58
Under the 25
th
51
United States Constitution, Article II §1, clause 7.
52
United States Constitution, Article III §1.
53
Richard Neustadt, Presidential Power and the Modern Presidents (New York: The Free Press: 1990), p. x.
54
United States Constitution, Article I §7, clause 2; Article II § 2, clause 2.
55
United States Constitution, Article III §2.
56
United States Constitution, Article I §9, clause 7.
57
United States Constitution, Article III §1.
58
United States Constitution, Article II §2, clause 2.
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amendment, vacancies in the Vice Presidency are also filled through nomination by the President
and confirmation by both the House and Senate.
59
Although the President retains general removal authority over most executive branch officials,
Congress has the authority to remove the President, Vice President, and “civil officers of the
United States” (including federal judges) for treason, bribery, and other high crimes and
misdemeanors.
60
The power, however, is divided between the House of Representatives, which
has the power to impeach, and the Senate, which is responsible for trying those impeached by the
House. This power is exclusive to Congress; there is no corresponding mechanism in the other
branches for the removal of Representatives or Senators, which reveals the primacy of Congress
under the Constitution. The House and Senate may expel their own Members, but no outside
power, save elections, can otherwise remove them, reflecting the Framer’s concept of the
sovereignty of the people.
Investigations
Both the executive and legislative branches have investigatory authority over each other. The
executive branch, subject to certain constitutional limitations,
61
investigates criminal conduct by
Members of the House and Senate, and legislators suspected of violating the law can be
prosecuted in federal court.
62
Congress has the authority to investigate activities in the executive
and judicial branches, and these investigations can be the basis for either future criminal
prosecutions or impeachment proceedings. In addition, Congress has the authority to conduct
routine oversight of executive departments to inform future legislation and resource decisions.
63
War and Foreign Policy
The Constitution specifically divides matters of war and foreign policy between the branches. The
President is commander in chief of the armed forces under Article II,
64
but Congress is granted
the authority to declare war, raise and support an army and navy, and make rules governing the
armed forces.
65
Congress also has authority over appropriations, including funding for any war
effort.
66
The courts have the authority to declare actions of Congress or the President in relation to
war unconstitutional.
General intercourse with other nations is also a shared responsibility. The President has many of
the responsibilities of head of state, but the Senate provides its advice and consent to treaties, and
Congress controls the appropriations and legislation needed to implement them.
67
In other cases,
59
United States Constitution, Amendment 25, §2.
60
United States Constitution, Article II §4; Article I § 2, clause 5; §3, clause 6.
61
The Speech or Debate Clause places significant limitations on the ability of the executive branch to both investigate
and prosecute Members of Congress for violations of the law. For an overview of the Speech or Debate Clause see
CRS Report R42648, The Speech or Debate Clause: Constitutional Background and Recent Developments, by Alissa
M. Dolan and Todd Garvey.
62
Representatives have very limited immunity from certain laws. See CRS Legal Sidebar WSLG154, Are Members of
Congress Above the Law?, by Jack Maskell.
63
For a brief overview, see CRS In Focus IF10015, Congressional Oversight and Investigations, by Alissa M. Dolan,
Todd Garvey, and Walter J. Oleszek.
64
United States Constitution, Article II §2.
65
United States Constitution, Article I §8.
66
United States Constitution, Article I §9, clause 7.
67
United States Constitution, Article II §3, Article II §2, clause 2.
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Congress or the President may often find ways to reach agreements without a treaty, either
through bilateral agreements of the executive branch, or, in the case of Congress, through public
law.
68
Separation of Powers: Consequences
The constitutional structure of separation of powers is directly consequential for the practice of
American politics. It incentivizes specific strategies and behaviors of both individual political
actors and the branches of the federal government as a whole. This section discusses three broad
consequences of the separation of powers: the inevitability of conflict in the American political
system; the desire of each of the branches, in aggregate, to increase its relative institutional
power; and the cross-pressures faced by individual political actors as they balance the
accumulation and maintenance of power for their institution with policy or other goals that are
often at cross purpose with such accumulation.
Conflict
The constitutional structure of separation of powers generates strong political conflict. With
political actors in each branch having preferences over public policy but not the capacity to
unilaterally realize those preferences, it is inevitable that disagreement will be constant and
political actors will seek to expand the power and influence of their respective branches. Far from
a defect of the system, this conflict is the very essence of the framers’ goal: arrange the federal
government such that no faction can accumulate enough power to singularly dominate.
69
The source of conflict in the constitutional structure, however, goes beyond the basic separation
of power. If the only structural differences between the branches were the authorities assigned to
them and the preferences of the political actors, American politics would likely have much less
conflict than it has traditionally exhibited. The Constitution, however, provides several other
mechanisms that enhance conflict and limit the ability of any faction from gaining coordinated
control of the functions of government.
Separate Bases of Authority, but Also Different Bases of Authority
While the elected branches of the federal government have independent electoral bases (i.e.,
neither branch has a primary role in choosing the members of the other branch), they also have
structurally different electoral bases. Representatives are elected every two years, from districts
drawn to be approximately the same size.
70
Senators are elected every six years on staggered
terms, from statewide votes.
71
The President is elected every four years, from a national vote
68
Charles Stewart III, “Congress and the Constitutional System,” In Paul J. Quirk and Sarah A. Binder, Institutions of
American Democracy: The Legislative Branch (New York: Oxford University Press, 2005), p. 23. For further
information on congressional-executive agreements and treaties, see CRS Report 97-896, Why Certain Trade
Agreements Are Approved as Congressional-Executive Agreements Rather Than Treaties, by Jane M. Smith, Daniel T.
Shedd, and Brandon J. Murrill.
69
This stands in sharp contrast to the traditional parliamentary model of republican government, which generally
produces unified governments. See Gerring, Thacker, and Moreno, “Are Parliamentary Systems Better?” p. 334; Juan
Jose Linz, “The Perils of Presidentialism,” Journal of Democracy, vol. 1., no. 1 (1990).
70
United States Constitution, Article I §2. See also CRS Report R42831, Congressional Redistricting: An Overview, by
Royce Crocker.
71
United States Constitution, Article I §3; Amendment XVII.
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aggregated through state elections to an electoral college.
72
At any given point in time, the House,
Senate, and presidency will be filled with elected political actors drawn from different
constituencies at different points in time. No single federal election in the United States can
completely alter the political composition of the government; conversely, the composition of the
government never completely reflects the preferences of the voters at any single point in time.
Consequently, the preferences of individual political actors, and the aggregate preferences of the
elected branches of government, will never be perfectly aligned, and often will be in sharp
conflict. Every election features important recent events, fresh issues, and new ideas that shift the
preferences of voters and alter the electoral choices they make. All Americans are represented in
the House, the Senate, and the presidency, but the differing aggregation systems—House districts,
states in the Senate, and an indirect national vote for the presidency—create three bodies that,
even if wholly elected at the exact same time, would sum to different preferences over policy.
Likewise, the varying length of terms for each of the elected branches creates different incentives
and structures the political preferences of the actors. As the framers surmised, the shorter terms of
Representatives would likely make them more responsive to rapid shifts in public opinion among
their constituents, while the longer terms of Senators would insulate them against being aroused
by quickly extinguished passions of public opinion.
73
In addition to these regular time horizons
for elections, the presidency now has a fixed time horizon;
74
with a maximum of eight years in
office, Presidents have strong incentives to move quickly to achieve their policy goals.
Representatives and Senators, without such existential term limits, may often see less need for
hurried action.
75
Vague Powers
The vagueness of much of the Constitution also creates political conflict between the branches.
The Constitution, by global standards, is very brief.
76
And while some of the authorities it assigns
are uncontestable directives or rules, much of it is open to a variety of interpretations. Not
surprisingly, political actors in the different branches are likely to interpret its dictates in ways
that enhance or expand their own authority. This is especially true in areas where there are clearly
shared responsibilities, such as war powers. The President is commander in chief of the armed
forces under Article II,
77
but Congress is granted the authority to declare war, raise and support an
army and navy, and make rules governing the armed forces.
78
72
United States Constitution, Article II §1; Amendment XII.
73
James Madison, “The Federalist No. 62,” in Alexander Hamilton, James Madison, and John Jay, The Federalist
Papers (Clinton Rossiter, ed.) (New York: Penguin, 1961), pp. 376-390.
74
United States Constitution, Amendment XXII.
75
Douglas L. Kriner and Andrew Reeves, The Particularistic President: Executive Branch Politics and Political
Inequality (New York: Cambridge University Press, 2015), pp. 16; William G. Howell, Thinking About the Presidency:
The Primacy of Power (Princeton: Princeton University Press, 2013).
76
The U.S. Constitution is less than 4400 words, making it one of the shortest Constitutions. See Christopher W.
Hammons, “Was James Madison Wrong? Rethinking the American Preference for Short, Framework-Oriented
Constitutions,” The American Political Science Review, Vol. 93, No. 4 (December, 1999), pp. 837-849.
77
United States Constitution, Article II §2.
78
United States Constitution, Article I §8.
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Unconsidered Questions
The political branches of the federal government also routinely come into conflict over questions
that the Constitution never contemplates. No 18
th
century document could have foreseen the
developments of a nation over centuries, and conflicts between the President and Congress often
involve issues that would have never even occurred to the framers as important. Even powers that
are seemingly firmly entrenched with one branch or another can generate conflict over their
application. For example, only Congress has the power to appropriate funds for an activity of the
federal government. But does the President have the discretion to not spend funds appropriated by
Congress?
79
Institutional Power
It is not surprising that the branches of government will seek to enhance their power within the
federal government. Since such enhancements of power largely come at the expense of one of the
other branches of the government, each branch also has strong incentives to defend its own power
from encroachment by the other branches.
80
Such attempts at enhancement and defenses against
the encroachments of the other branches can take many forms. Discussed here are three general
aspects of the strategies used by the branches.
Asserting and Guarding Power
The most basic institutional strategy for enhancing power is to simply assert it in the course of
executing policy preferences, or suggest new powers via legislative proposals. The President may
decide that military action is needed and choose not to consult with Congress.
81
The President
may decide Senate confirmation of a nominee is taking too long and make a recess appointment
while the Senate is in recess for just a few hours.
82
Congress may decide that an investigation of
perceived wrongdoing at the White House or in the executive branch is necessary, and subpoena
documents and records that may be protected by executive privilege.
83
Congress may design a
regulatory agency whose principal officials are not nominated by the President.
84
Left
unchallenged by the other branch, these actions will not only take effect, but they will potentially
set historical precedent for similar future actions, normalize the action in the mind of the public,
or lay the groundwork for further enhancements of power in the same vein.
Therefore, it is common for each branch to strongly guard its power and challenge attempts by
the other branches to assert new or enhanced power. Such guarding of power takes many forms.
Often, it is simply public repudiation. If one branch asserts a power and another publicly
condemns it, public opinion may quickly force the asserting branch to back down. In 1937
President Roosevelt made legislative proposals to expand the Supreme Court and to reorganize
the executive branch.
85
Many in Congress saw these bills as attempts to increase executive power
79
Train v. City of New York, 420 U.S. 35 (1975).
80
David Mayhew, The Electoral Connection (New Haven: Yale University Press, 1973); Richard Fenno, Homestyle:
House Members in Their Districts (New York: Pearson, 2002).
81
Louis Fisher, Presidential War Power (Lawrence, KS: University of Kansas Press, 1995).
82
See CRS Report R42323, President Obama’s January 4, 2012, Recess Appointments: Legal Issues, by David H.
Carpenter et al.
83
CRS Legal Sidebar WSLG86, Presidential Claims of Executive Privilege, by Todd Garvey.
84
Buckley v. Valeo, 424 U.S. 1 (1976).
85
Burt Solomon, FDR v. The Constitution: The Court-Packing Fight and the Triumph of Democracy (New York:
(continued…)
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over the courts and public policy, and opponents of the measures came to label them “court-
packing” and the “dictator bill.”
86
Both measures failed, and Roosevelt was widely repudiated for
the attempted power grab. Absent mobilized public opinion, the branches also have the ability to
guard their power through lawsuit in the federal courts. Conflicts between the executive and
legislative branches may result in one party making a legal claim that the other has exceeded its
constitutional authority.
87
In other cases, private citizens may bring federal claims against one of
the branches asserting an action exceeded the authority of the branch.
88
Public Prestige
Because public opinion shapes the actions of political actors and thus policy outcomes, the
maintenance and enhancement of the power of the branches can be augmented by increasing the
public prestige of the institution. If voters believe that one branch of government is more or less
capable of dealing with public policy problems or other political issues, power is likely to flow
toward that branch of government and away from the other branches. In effect, the institutional
reputation of the branches at any given moment affects their relative political power and shapes
outcomes, particularly in conflicts that arise between the branches. Many things can affect the
public prestige of the branches: perceptions about competence, scandal, attacks from the other
branches, etc.
89
In many respects, the legislative branch has the most difficulty maintaining its public prestige.
The President has the advantage of unity of voice, and relatively rarely does the executive branch
appear to be in-fighting.
90
In recent times, the Supreme Court has enjoyed strong public opinion
support, and enjoys an apolitical reputation that it closely guards.
91
Congress, however, has
neither of these advantages. Disagreement is natural in a legislature, and it is rare for Congress to
work either quickly or in a completely united fashion.
92
While these features are often beneficial,
they work against Congress as a prestigious institution, particularly in situations where the
President can project a single solution or plan while simultaneously portraying Congress as
deadlocked and chaotic.
93
Political Capacity
The three branches of the federal government can also work to enhance their political capacity, by
seeking to augment the resources available to them for public political confrontations. Effecting
(…continued)
Walker, 2009); Stephen Skowronek, The Politics Presidents Make (Cambridge, MA: Belknap Press, 1993).
86
Gregory A. Caldeira, “Public Opinion and the U.S. Supreme Court: FDR’s Court-Packing Plan,” The American
Political Science Review, vol. 81, no. 4 (December 1987), pp. 1139-1153; Barry D. Karl, “Executive Reorganization
and Presidential Power,” The Supreme Court Review, vol. 1977 (1977), pp. 1-37.
87
See CRS Legal Sidebar WSLG172, House Committee Files Suit to Compel Production of Fast and Furious
Documents, by Todd Garvey.
88
CRS Legal Sidebar WSLG566, Supreme Court to Hear Appointments Case, by David H. Carpenter.
89
For example, see James Sundquist, The Decline and Resurgence of Congress (Washington: The Brookings
Institution, 1981).
90
Charles Hardin, “The Crisis and Its Cure,” in William Lasser, Perspectives on American Politics (Boston;
Wadsworth, 2012 ), p. 299.
91
See http://www.gallup.com/poll/4732/supreme-court.aspx.
92
Fenno, Homestyle, p. 194.
93
Michael Foley and John E. Owens, Congress and the Presidency: Institutional Politics in a Separated System
(Manchester, UK: Manchester University Press, 1996), pp. 405-407.
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outcomes in public policy debates often requires the ability to gather and analyze information,
research and develop arguments, and package and reach a public audience with the information.
In a public policy fight between two entities, the one with the greater resources that can be
mobilized will often have an advantage.
94
Therefore, the branches of the government can seek to enhance their own power through the
enlargement of their own political capacity. This can take the form of greater staffing, such as the
expansion of congressional staff under the 1946 Legislative Reorganization Act.
95
Or it can take
the form of the creation of entirely new branch-wide entities, such as the creation of the
Executive Office of the President or the Congressional Budget Office or the Federal Judicial
Center.
96
In many cases, increases in one branch’s capacity is acquiesced to by the other branches;
Congress routinely passes legislation increasing executive capacity, and the President often
consents to increased legislative capacity by refraining from vetoing such legislation.
Consequences for Individual Political Actors
While the three branches of government themselves have strong incentives to maintain and
enhance their power, individual political actors within the branches may often find themselves
placed at cross-purposes, where the goal of enhancing power for their institution may come into
conflict with other political goals they are seeking to achieve.
Cross-Purposes
Generally, three types of goals may create cross-purpose conflicts for political actors seeking to
maintain the institutional power of their branch. First, long-term institutional power may come
into conflict with personal policy positions. For example, an individual Justice’s belief may favor
an outcome of a Supreme Court case that may decrease the prestige of the Court; an individual
Member of Congress may believe that foreign policy actions taken by the executive branch
without the input, or against the majority wishes, of Congress may be the correct decisions; and
the President may be unwilling to veto legislation that achieves policy outcomes he prefers
despite doing so in a way that reduces executive branch capacity.
A second cross-purpose conflict is one that brings institutional power into conflict with partisan
affiliation. Members of a political party generally do not to want to embarrass co-partisans or
damage the reputation of their party; instead, they seek to enhance the reputation and brand-name
of their party in the hopes of accumulating party power and gaining greater control over public
policy.
97
It thus often becomes the case that individuals must choose between helping their
political party and enhancing the power of their institution. For example, Representatives may
refrain from criticizing the actions of a President from their own party, even when such actions
are to the detriment of Congress as an institution. The Representative may judge that the benefit
to their constituents, party, or ideological policy preferences outweigh the diminishment of power
to the institution.
98
94
For example, see Matthew Glassman, “Congressional Leadership: A Resource Perspective,” in Jacob Straus, Party
and Procedure in the United States Congress (New York: Rowan and Littlefield, 2011).
95
60 Stat. 812, August 2, 1946.
96
53 Stat. 561, April 3, 1939; 88 Stat. 297, July 12, 1974; 81 Stat. 664, December 20, 1967.
97
David Mayhew, Divided We Govern (New Haven: Yale University Press, 1991), p. 3; Morris S. Ogul, Congress
Overseas the Bureaucracy (Pittsburgh: University of Pittsburg Press, 1976), p. 18.
98
Charles Stewart III, “Congress and the Constitutional System,” In Paul J. Quirk and Sarah A. Binder, Institutions of
(continued…)
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A third cross-purpose conflict is when electoral goals conflict with institutional power. This can
happen when candidates for office believe that attacking or maligning the power of the institution
they are seeking to join will be an effective campaign strategy. Candidates for Congress
commonly describe Congress as “broken” or “dysfunctional.”
99
Nominees for the Supreme Court
often warn in Senate hearings about the need to limit the scope or authority of the Court;
100
and
candidates for President routinely attack their predecessors for actions that they believe are
overreaches of executive power.
101
A Particularly Congressional Problem
The problem of institutional power coming into conflict with other goals is particularly acute for
Congress, especially in relation to the executive branch. As individual members of a large body,
Representatives and Senators may not believe they have the responsibility or the capacity to
defend the institution.
102
Those who may feel such responsibility, such as party and chamber
leaders, will often find themselves in situations in which policy or party goals, either their own
personal ones or those of their caucus, come into direct conflict with institutional goals. Even
when Congress does choose to institutionally defend itself, it often finds itself speaking with less
than a unified voice, as only the most vital institutional powers have the ability to unanimously
unify Congress.
103
These problems of collective action—the responsibility/capacity to defend the institution, the
ability to speak with a unified voice, and the conflict with party or policy goals—rarely if ever
occur in the executive branch. The unitary nature of the presidency ensures that the executive
branch will ultimately always speak with one voice, and past presidents have often expressed—
both in office and after retirement—a deep feeling of responsibility for the maintenance of the
powers of the presidency.
104
Finally, it is more unusual for party or policy goals to be directly at
odds with executive branch power than congressional power, simply because the President in
modern times exerts significant control over both his party’s politics and the general public policy
agenda. His proposals, therefore, tend to set the agenda and, not surprisingly, they are typically
very consonant with executive branch power.
Lessons for Those Seeking to Increase Institutional Power
While the cross-purposes that place political actors in conflicted situations with respect to
institutional power can seem daunting, they also suggest structural situations in which those
seeking to enhance institutional power can harness these cross-purposes and use them for the
(…continued)
American Democracy: The Legislative Branch (New York: Oxford University Press, 2005), p. 23.
99
Fenno, Homestyle, p. 197.
100
For example, see “Transcript: Day One of the Roberts Hearings,” The Washington Post, September 13, 2005,
http://www.washingtonpost.com/wp-dyn/content/article/2005/09/13/AR2005091300693.html.
101
For example, then-Senator Obama routinely criticized then-President George W. Bush for expanding executive
power, resulting in short video clips from the 2008 campaign (such as https://www.youtube.com/watch?v=
a3IWq3CXHyc) that were later used as political attacks against him as President.
102
Mayhew, The Electoral Connection.
103
Stewart, “Congress and the Constitutional System,” p. 23.
104
For example, see the discussion of President Nixon’s desire to protect the presidency in Mark J. Rozell, Executive
Privilege: The Dilemma of Secrecy and Democratic Accountability (Baltimore: John Hopkins University Press, 1994),
pp. 77-79.
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benefit of the institution. In some cases, the partisan or ideological or electoral goals of political
actors align with the institutional goals of the branch. It is in these situations that those seeking
greater institutional power, particularly in Congress, can most effectively achieve their goals.
The arrangement of parties, ideologies, and institutions has many variations. Imagine a stylized
America with a liberal and conservative political party, whose core principles tended to either
favor executive power or legislative power, but varied over time. In this arrangement, with two
institutions (Presidency, Congress), two parties (Party A, Party B), and two philosophies about
governance (executive-centered, Congress-centered), eight possible arrangements of government
are possible. Some of these arrangements are unlikely to be hospitable to the promotion of
congressional power. For instance, when one party controls both institutions and has an
executive-centered governing philosophy, enhancing congressional power will be quite difficult.
On the other hand, when Party A controls the presidency and Party B controls Congress, if Party
B has a Congress-centered philosophy for governing, the most hospitable alignment has been
achieved.
Those seeking to enhance congressional power will likely achieve their best results in situations
of divided government, when the control of Congress is in the hands of a party that naturally is
more wary of executive power. In these situations, the partisan, ideological, and institutional
incentives all favor an increase of congressional power. There are fewer cross-pressures to
conflict members; enhancing congressional power will serve the interests of the institution, the
party, and the ideological goals of many members.
Contemporary Issues
Clashes between the branches over the proper division of constitutional power and authority have
arisen routinely in recent Congresses, as they have throughout American history. Recent issues
include the following:
War Powers. The 2011 U.S. military operations in Libya raised concerns among
some in Congress that the President lacked authority to engage in such operations
without congressional approval. What limits can Congress place on Presidential
military action?
105
Policy implementation. In 2014, the House of Representatives voted to
authorize the Speaker to initiate legal action against the executive branch for
implementing aspects of the Affordable Care Act in a manner contrary to the
statutory language. What implementation latitude does the administration have
under law, and can Congress seek legal enforcement against administration
implementation decisions?
106
Congressional organization of the judiciary. In 2015, the Supreme Court
examined the question of whether Congress could charge non Article-III courts
105
For background on Member use of litigation in regard to war powers disputes, see CRS Report R41989,
Congressional Authority to Limit Military Operations, by Jennifer K. Elsea, Michael John Garcia, and Thomas J.
Nicola; CRS Report RL30352, War Powers Litigation Initiated by Members of Congress Since the Enactment of the
War Powers Resolution, by Michael John Garcia.
106
H.Res. 676, 113
th
Congress. For background on the Affordable Care Act provisions in question, see CRS Legal
Sidebar WSLG582, Obama Administration Delays Implementation of ACA’s Employer Responsibility Requirements: A
Brief Legal Overview, by Jennifer A. Staman, Daniel T. Shedd, and Edward C. Liu.
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with certain adjudication tasks. What types of courts can Congress create that do
not provide Article III protections to their judges?
107
Recess Appointments. In 2011, President Obama made several recess
appointments while the Senate was in pro-forma session, which led to a lawsuit
and ultimately a Supreme Court decision invalidating the appointments. Under
what conditions can the President make a recess appointment?
108
Recognition of foreign governments. Does Congress have a role in foreign
policy that gives it the authority to recognize foreign governments for some
purposes, or does the sole power of recognition lie with the President?
109
Congressional Oversight and Contempt Power. After the Department of
Justice refused to provide subpoenaed documents to the House Oversight and
Government Reform Committee, the committee voted to cite the Attorney
General for contempt, and the Administration invoked executive privilege as the
justification for withholding the documents. To what extent does Congress have a
right to executive branch documents? Can Congress force a criminal contempt
prosecution to be opened?
110
Concluding Observations
Two general observations warrant mentioning. First, the contemporary balance of power between
the President, Congress, and the courts is not the same as it was in 1789, and is perhaps not the
balance intended or expected by the framers of the Constitution. A myriad of changes,
developments, and specific events in the United States—ranging from amendments to the
Constitution to development in technology to the continuing evolution of American political
culture—have continually influenced public opinion, political norms, and the behavior of political
actors in ways that have rearranged the relative powers of the institutions.
Second, the relative power of the President, Congress, and the courts is not on any specific
trajectory. At various times since the ratification of the Constitution, the power of each institution
has been at times ascendant and at other times on the decline. While specific events and
developments may predictably lead to an increase or decrease in relative power for one of the
branches, predicting the actual future direction of power shifts between the branches is an
inherently difficult task. Many events that alter the power balance are either contingent or
otherwise rely on the individual actions of political actors.
107
For more information, see CRS Legal Sidebar WSLG1274, Function Over Form: The Role of Consent and the
Supreme Court’s Latest Separation of Powers Decision in Wellness Int’l v. Sharif, by Andrew Nolan.
108
See CRS Report R42323, President Obama’s January 4, 2012, Recess Appointments: Legal Issues, by David H.
Carpenter et al.; CRS Report R43030, The Recess Appointment Power After Noel Canning v. NLRB: Constitutional
Implications, by Todd Garvey and David H. Carpenter.
109
CRS Report R43773, Zivotofsky v. Kerry: The Jerusalem Passport Case and Its Potential Implications for
Congress’s Foreign Affairs Powers, by Jennifer K. Elsea; CRS Legal Sidebar WSLG1287, Has Congress Lost its Voice
on Jerusalem? (Zivotofsky Part I), by Jennifer K. Elsea; CRS Legal Sidebar WSLG1288, Youngstown Revisited
(Zivotofsky Part II), by Jennifer K. Elsea.
110
See CRS Legal Sidebar WSLG81, A Holder Contempt Citation: Legally Enforceable?, by Todd Garvey; CRS
Report R42670, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments, by
Todd Garvey and Alissa M. Dolan; CRS Recorded Event WRE00052, The Holder Contempt: A Case Study in
Congress’s Authority to Enforce Subpoenas, by Todd Garvey and Alissa M. Dolan.
Separation of Powers: An Overview
Congressional Research Service 20
Author Contact Information
Matthew E. Glassman
Analyst on the Congress
mglassman@crs.loc.gov, 7-3467
Volume
7
Issue
3
Spring-Summer
1
9
87
Issue Honoring the Bicentennial of the Constitution
Article 2
April
19
87
Arnold I. Burns
Stephen J. Markman
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Articles
Understanding Separation of Powers
Arnold I. Burnst
Stephen J. Markmantt
I. Introduction
Our Constitution contains explicit directions regarding the
organization of the federal government, dividing the responsibil-
ities of government among three separate branches, and enumer-
ating the specific powers each branch is to exercise. This division
and enumeration of powers establishes the fundamental terms
by which one branch’s claim to authority may be deemed valid
or invalid, and provides the very basis for deciding whether the
exercise of power by an agent of government is permitted or pro-
hibited. Too frequently, however, commentators, both inside
and outside of government, discuss the separation of powers
found in the Constitution as if it were some kind of broad based
“constitutional policy” or political philosophy divorced from the
specific provisions in the text of the document.’ This Article
t Deputy Attorney General of the United States. A.B., Union College, 1950; J.D.,
Cornell University, 1953.
tt Asst. Attorney General for the Office of Legal Policy. B.A., Duke University,
1971; J.D., University of Cincinnati, 1974.
This article reflects the sole views of the authors. We wish to thank Michael Robin-
son of the Justice Department’s Office of Legal Policy for his invaluable assistance.
Copyright 0 1987 Arnold I. Burns & Stephen J. Markman All Rights Reserved.
1. See, e.g., The Supreme Court, 1985 Term – Leading Cases, 100 HAav. L. REV.
100 (1986):
[The Constitution] establishes partially interdependent, separate centers of power
in order to prevent any one center from becoming tyrannical by accumulating all
judicial, legislative, and executive power. A functional separation of powers analy-
sis that examines a particular arrangement in terms of how it contributes to or
detracts from the maintenance of these desirable tensions among the three
branches best reflects the separation of powers concept.
Id. at 228 (footnotes omitted); Glennon, The Use of Custom in Resolving Separation of
Powers Disputes, 64 B.U.L. REV. 109,
11
1 (1984) (“[T]he separation of powers doctrine
1
PACE LAW REVIEW
[Vol. 7:575
seeks to refocus that discussion, to move away from abstractions
about separation of powers, and to re-anchor the doctrine to its
constitutional moorings.
There is nothing novel or idiosyncratic about the thesis of
this Article. Indeed, Supreme Court Justices from virtually
every generation of the Court have analyzed the constitutional
separation of powers in a similar manner.2 Nevertheless, because
[is] a nebulous principle finding no express articulation in the constitutional text.”);
Abourezk, The Congressional Veto: A Contemporary Response to Executive Encroach-
ment on Legislative Prerogatives, 52 IND. L.J. 3
23
, 3
31
(1977) (“[Tjhe constitutional the-
ories of separation of powers and checks and balances … have evolved over two hundred
years.”); Miller & Knapp, The Congressional Veto: Preserving the Constitutional
Framework, 52 IND. L.J. 367 (1977):
Separation of powers is not a doctrine in the sense of positive law; it is a political
theory concerning the system of allocation of governmental powers. It reflects the
consensus of the thirty-nine individuals who signed the Document of
17
87 on what
was then perceived as the permissible limits of governmental interaction. But use
of it as a standard for judging the constitutionality of activities not foreseen is
made impossible by the fact that the Framers did not agree on what the doctrine
specifically meant. The term was not used in the tripartite division of powers. It is
merely an inference drawn from the first three articles of the Constitution.
Id. at 384-85; Frohnmayer, The Separation of Powers: An Essay on the Vitality of a
Constitutional Idea, 52 OR. L. REV.
21
1, 216 (1973) (“[T]he question remains whether
the doctrine [of separation of powers] is still a workable constitutional theory.”);
Ameron, Inc. v. United States Army Corps of Eng’rs, 787 F.2d 875, 881 (3d Cir. 1986)
(“[T]he separation of powers principle …is not expressly mentioned in the Constitu-
tion but … undergirds the Constitutional philosophy …. “).
2. The Court’s entire history can be measured by the terms of office of nine Justices:
William Cushing, 1789-1810; John Marshall, 1801-1835; Roger Brooke Taney, 1836-1864;
Samuel Freeman Miller, 1862-1890; Henry Billings Brown, 1891-1906; William Rufus
Day, 1903-1922; Louis Dembitz Brandeis, 1916-1939; Hugo Lafayette Black, 1937-1971;
and William Joseph Brennan, Jr., 1956-present. CONGRESSIONAL QUARTERLY, INC., CON-
GRESSIONAL QUARTERLY’S GUIDE TO THE U.S. SUPREME COURT 795-859 (1979). Of these
nine, those who have written about the separation of powers have generally espoused the
same approach taken in this article. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch)
13
7, 176 (1803) (Marshall, C.J.) (The “original and [s]upreme will [of the people] or-
ganizes the government, and a[ss]igns, to different departments, their re[s]pective pow-
ers …. The powers of the legi[s]lature are defined, and limited; and that tho[s]e limits
may not be mi[s]taken, or forgotten, the con[s]titution is written.”); Gordon v. United
States, 117 U.S. 697 (1864) (Taney, C.J.):
The Constitution of the United States delegates no judicial power to Con-
gress. Its powers are confined to legislative duties, and restricted within certain
prescribed limits. By the second section of Article VI, the laws of Congress are
made the supreme law of the land only when they are made in pursuance of the
legislative power specified in the Constitution ….
Id. at 705; Kilbourn v. Thompson, 103 U.S. 168 (1880) (Miller, J.):
It is . . . essential to the successful working of this system [of written constitu-
tional law] that the persons intrusted with power in any one of these branches
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SEPARATION OF POWERS
so many contemporary commentators betray a profound misun-
derstanding of separation of powers principles, it is important to
review the proper approach to separation of powers issues. Nor
could such a review be more timely: recent challenges to the con-
stitutionality of the independent counsel law3 reaffirm the con-
tinuing significance of separation of powers analysis and high-
light the importance of a proper approach to separation of
powers issues.
Part II of this Article explains how to “think clearly” about
the constitutional requirements for separation of powers. Part
III analyzes specific separation of powers conflicts in the context
of the principles set forth in Part II. For the sake of simplicity,
this Article focuses on separation of powers abuses by the legis-
lative branch.” This includes an examination of the interpretive
shall not be permitted to encroach upon the powers confided to the others, but
that each shall by the law of its creation be limited to the exercise of the powers
appropriate to its own department and no other.
Id. at 191; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (Black, J.)
(“In the framework of our Constitution, the President’s power to see that the laws are
faithfully executed refutes the idea that he is to be a lawmaker.”); Northern Pipeline
Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (Brennan, J.):
[T]he Framers provided that the Federal Government would consist of three dis-
tinct Branches, each to exercise one of the governmental powers recognized by the
Framers as inherently distinct.
As an inseparable element of the constitutional system of checks and bal-
ances, and as a guarantee of judicial impartiality, Art. III both defines the power
and protects the independence of the Judicial Branch.
Id. at 57-58.
3. Former National Security Council staffer, Lt. Col. Oliver North, and former
White House aide, Michael Deaver, both under investigation by independent counsel, are
contesting the Ethics in Government Act of 1978, 28 U.S.C. §§ 591-598 (1978 & Supp. III
1985), on the grounds that it improperly permits the judiciary to exercise executive func-
tions in selecting independent counsel. North v. Walsh, Nos. 87-0457 and 87-0626
(D.D.C. filed March 12, 1987) (dismissed for lack of ripeness); Deaver v. Seymour, No.
87-0477 (D.D.C. filed March 11, 1987) (denying preliminary injunction), aff’d and re-
manded with instructions to dismiss, No. 87-5056 (D.C. Cir. filed Mar. 17, 1987) (per
curiam).
4. Of course, it is recognized that from time to time the executive and judicial
branches are guilty of separation of powers abuses as well. See, e.g., Youngstown Sheet,
343 U.S. at 587-88 (presidential seizure of most of the nation’s steel mills was not au-
thorized by a constitutional or statutory grant of power to the executive branch and
encroached upon legislative authority); American Cetacean Soc’y v. Baldridge, 604 F.
Supp. 1398 (D.D.C.), aff’d, 768 F.2d 426 (D.C. Cir. 1985), rev’d sub nom., Japan Whaling
Ass’n v. American Cetacean Soc’y, 106 S. Ct. 2860 (1986). In American Cetacean, the
district court held that the Secretary of Commerce had a nondiscretionary duty, under
1987]
3
PACE LAW REVIEW [Vol. 7:575
tools that should be used in determining whether an act of gov-
ernment comports with prescriptions and proscriptions found in
the Constitution for the separate powers of government. This
Article concludes in Part IV by affirming the need for a strict
interpretation of the text of the Constitution when analyzing
separation of powers issues.
II. Thinking Clearly About Separation of Powers
The concept of separated powers as a political doctrine has,
of course, existed at least since the middle of the seventeenth
century.5 Of the various theorists who wrote of the need to di-
vide governmental powers among different institutions, Montes-
quieu most influenced the Framers. However, it would be a mis-
take to assume that Montesquieu’s view of separation of
powers – or any other particular view, for that matter – was
specifically incorporated into the Constitution or intended to
dictate our understanding of the constitutional structure of our
government.7 Whatever theories may have influenced the Fram-
ers, only one specific formulation found expression in the Con-
the Packwood Amendment to the Magnuson Fishery Conservation and Management Act,
to certify to the President that Japanese nationals were engaged in sperm whaling opera-
tions in such a manner as to “diminish the effectiveness” of the zero quota established
by the International Convention for the Regulation of Whaling. Id. at 1404, 1410-11. The
court ordered the Secretary to certify Japan notwithstanding an executive agreement
between Japan and the Secretary, whereby the Secretary promised that the United
States would not certify Japan under the Amendment if Japan pledged to adhere to
certain harvest limits and to cease commercial whaling by 1988. Id. at 1404. In reversing
the district court, the Supreme Court found that the district court misconstrued the
statutory language and legislative history of the Packwood Amendment, which clearly
made the Secretary’s certification obligations discretionary. American Cetacean, 106 S.
Ct. at 2868-72.
The Court further commented that although the judiciary may review some issues
that affect foreign relations, the political question doctrine prohibits judicial review of
other cases “which revolve around policy choices and value determinations constitution-
ally committed for resolution to the halls of Congress or the confines of the Executive
Branch.” Id. at 2866.
5. W.B. GWYN, THE MEANING OF THE SEPARATION OF POWERS 9 (Tulane Studies in
Political Science No. IX, 1965). Some have even traced the concept of separated powers
back to Aristotle. Id. at 5.
6. See, e.g., THE FEDERALIST No. 47, at 324-28 (J. Madison) (J. Cooke ed. 1961). See
also THE FEDERALIST No. 78, at 523 (A. Hamilton) (J. Cooke ed. 1961) (recognizing the
celebrated status of Montesquieu on the issue of separation of powers).
7. See L. FISHER, CONSTITUTIONAL CONFLICTS BETWEEN CONGRESS AND THE PRESIDENT
10 (1985); C. PRITCHETT, CONSTITUTIONAL LAW OF THE FEDERAL SYSTEM 13 (1984).
4http://digitalcommons.pace.edu/plr/vol7/iss3/2
SEPARATION OF POWERS
stitution. Thus, as a jurisprudential matter, there is neither need
nor warrant for reliance on abstract conceptual theories about
separation of powers divorced from the actual text of the
Constitution.’
The United States government is “one of delegated, limited
and enumerated powers.” 9 All the powers of the national govern-
ment are conferred by the Constitution, and those not expressly
delegated to it are reserved to the States, or to the people.10 The
Constitution distributes the sum total of national government
power among the three branches, stating that “[a]ll legislative
Powers .. .shall be vested in a Congress of the United States,
which shall consist of a Senate and House of Representatives”;
that “[t]he executive Power shall be vested in a President of the
United States of America”; 2 and that “[t]he judicial Power of
the United States, shall be vested in one supreme Court, and in
such inferior Courts as the Congress may from time to time or-
dain and establish.’ 1 3 Thus, by its own terms, the Constitution
makes clear that the executive and judicial branches have no
legislative power; that no part of the judicial power is conferred
on the legislature or the executive; and that only the executive
branch can exercise executive power. 4 Our system of govern-
8. Buckley v. Valeo, 424 U.S. 1, 124 (1976) (“The principle of separation of powers
was not simply an abstract generalization in the minds of the Framers: it was woven into
the document that they drafted in Philadelphia in the summer of 1787.”); Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring) (“To
be sure, the content of the three authorities of government is not to be derived from an
abstract analysis …. The Constitution is a framework for government.”).
9. United States v. Harris, 106 U.S. 6
29
, 635 (1882). See generally McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 316 (1819).
10. U.S. CONST. amends. IX, X.
11. U.S. CONST. art. I, § 1.
12. Id. art. II, § 1.
13. Id. art. III, § 1.
14. Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919, 951 (1983) (“The
Constitution sought to divide the delegated powers of the new Federal Government into
three defined categories, Legislative, Executive, and Judicial, to assure, as nearly as pos-
sible, that each branch of government would confine itself to its assigned responsibil-
ity.”); United States v. Nixon, 418 U.S. 683, 704 (1974) (“[Tlhe ‘judicial Power . . .’
vested in the federal courts by Art. III … of the Constitution can no more be shared
with the Executive Branch than the Chief Executive, for example, can share with the
Judiciary the veto power, or the Congress share with the Judiciary the power to override
a Presidential veto.”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587-89
(1952) (“In the framework of our Constitution, the President’s power to see that the laws
are faithfully executed refutes the idea that he is to be a lawmaker…. The Founders of
1987]
5
PACE LAW REVIEW [Vol. 7:575
ment, properly viewed, is not, as one scholar has described it,
“separated institutions sharing powers. 1 5 Rather, it consists of
three branches assigned different powers and responsibilities
that together comprise the full extent of national governmental
power.
The Constitution does not permit a branch of government
to expand its own authority by encroaching upon the powers
conferred on the other branches; nor does an acquiescence in an
unconstitutional exercise of power by another branch establish
that power in the other branch.'” Moreover, beyond those pow-
this Nation entrusted the lawmaking power to the Congress alone in both good and bad
times.”); Springer v. Phillipine Islands,
27
7 U.S. 189 (1928):
It may be stated… as a general rule inherent in the American constitutional
system, that, unless otherwise expressly provided or incidental to the powers con-
ferred, the legislature cannot exercise either executive or judicial power; the exec-
utive cannot exercise either legislative or judicial power; the judiciary cannot exer-
cise either executive or legislative power.
Id. at 201-02; Kilbourn v. Thompson, 103 U.S. 168 (1880):
It is . . . essential to the successful working of this system [of written constitu-
tional law] that the persons intrusted with power in any one of these branches
shall not be permitted to encroach upon the powers confided to the others, but
that each shall by the law of its creation be limited to the exercise of the powers
appropriate to its own department and no other.
Id. at 191.
15
. R. NEUSTADT, PRESIDENTIAL POWER 26 (1980 ed.) (footnote omitted) (emphasis in
original).
16. The Supreme Court has been frequently confronted with deciding the constitu-
tionality of one branch’s actions when the exercise of power by that branch has been
efficient but not authorized by the Constitution. See, e.g., Chadha, 462 U.S. at 945-46
(The one-House veto practice, in use for fifty years, was struck down as an unconstitu-
tional violation of art. I of the Constitution, which expressly requires that all bills which
pass the two Houses of Congress must be presented to the President.); Youngstown
Sheet, 343 U.S. at 588-89 (A presidential order to take over and operate steel mills was
found to be an impermissible exercise of the lawmaking power because it infringed on
Congress’ power to pass laws “in both good and bad times.” The Court stated that the
success of other Presidents in carrying out similar orders did not abrogate Congress’
exclusive authority to make laws.); Fairbank v. United States, 181 U.S. 283, 289, 311
(1901) (In striking down a stamp duty imposed on bills of lading on exports from the
United States, the Court explained that the constitutionally prohibited tax could not be
saved on the grounds that previous efforts to impose stamp duties on exports were suc-
cessful.). But cf. Ex Parte Grossman, 267 U.S. 87, 118-19 (19
25
) (The Court upheld the
practice of several United States attorneys general of pardoning criminal contempts of
court as a constitutional exercise of the Executive pardon power, even though the judici-
ary also had power to punish criminal contemnors. The Court found that continued leg-
islative acquiescence to this practice supported a determination of constitutionality.);
United States v. Midwest Oil Co., 236 U.S. 458, 473, 483 (1914) (In upholding a presiden-
tial order withdrawing specified public lands from private acquisition, notwithstanding a
6http://digitalcommons.pace.edu/plr/vol7/iss3/2
SEPARATION OF POWERS
ers expressly conferred on the various branches (and such pow-
ers as are implicit in their delegation, or incidental to their exer-
cise), there are no “inherent” powers of national government.”7
Thus, neither amorphous concepts of sovereignty, nor the mere
possession of legislative or executive power, or of governmental
power generally, affords a basis for claiming authority to take
action not expressly or implicitly authorized by the
Constitution.”
To insist that the separated powers of the three branches
are not shared, however, is not to suggest that these powers may
not at times be focused on the same subject or that they must
operate with absolute independence. For example, the Constitu-
tion confers on the President the power to veto bills “which
shall have passed the House of Representatives and the Senate,”
subject to the power of Congress to override that veto by vote of
congressional declaration to the contrary, the Court applied the rule that long-standing
acquiescence in a governmental practice gave rise to a presumption of authority. In view
of this long-standing executive practice of withdrawal of public lands, the Court sus-
tained the presidential order.).
17. Claims to inherent powers should be distinguished from claims to those implied
powers ancillary to an enumerated source of authority in the Constitution. For example,
as the necessary and proper clause of article I, section 8, confirms, Congress has not only
those powers specifically conferred by the Constitution, but such “incidental or implied
powers” necessary to implement the powers given. U.S. CONST. art. I, § 8, cl. 18. See, e.g.,
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413-14 (1819). A claim to inherent pow-
ers is a claim to the existence of governmental powers not expressly conferred by the
Constitution, but “inherent” in our government, as deduced from the nature of govern-
ments generally. C. PYLE & R. Pious, THE PRESIDENT, CONGRESS, AND THE CONSTITUTION
76-77 (1984). See also SPARKMAN, Checks and Balances in American Foreign Policy, 52
IND. L.J. 4
33
, 442-43 (1977); Monaghan, Presidential War-Making, 50 B.U.L. REV. 19, 25
(1970) (Special issue). Although claims to inherent powers are typically made on behalf
of the executive and legislative branches, claims to federal common law and judicial su-
pervisory authority may also constitute appeals by the judiciary to “inherent” powers.
See, e.g., C. PRIrcHETT, supra note 7, at 284-90 (discussing executive claims to inherent
powers); Monaghan, supra, at 25 (same). See also Carlson v. Green, 446 U.S. 14, 37-40
(1980) (Rehnquist, J., dissenting) (criticizing the majority’s holding that, pursuant to
federal common law, the court is authorized to award a damages remedy to victims of a
constitutional violation by a federal agent, despite the absence of any statute conferring
such right). See generally Note, Supervisory Power in the United States Courts of Ap-
peals, 63 CORNELL L. REV. 642 (1978) (discussing the supervisory power of the judiciary).
18. See S. BARBER, ON WHAT THE CONSTITUTION MEANS 186 (1984) (Such a doctrine
of inherent powers “serves only as a license to ignore the constitutional constraints found
in the Bill of Rights, the separation of powers, and the idea of authorized national
ends.”).
19871
7
PACE LAW REVIEW
two-thirds of each House;”9 it grants the Senate the power of
consent over treaties and presidential appointments;” it gives
Congress the power to define the jurisdiction of the judicial
branch by virtue of its authority to “ordain and establish . . .
inferior [federal] Courts”;2 and it gives the judiciary, by virtue
of its power over cases arising under the Constitution and laws
and treaties of the United States, the power to declare legislative
and executive acts unconstitutional. 2 Such duties may require
different branches to study and act upon the same set of circum-
stances. However, in each of these instances, the powers of each
branch remain discrete: the legislature is exercising legislative
power, the President is exercising executive power, and the
courts are exercising judicial power; none of them is “sharing”
its powers with the other branches. Any “sharing” or “blending”
of power relates only to the sharing of the sum of all national
governmental power and the concurrent exercise of power by
more than one branch.
These areas of concurrent but separate responsibility are
the checks and balances built into the constitutional structure of
government. They preserve the independence of the separate de-
partments and provide each branch with the ability to protect
against usurpations of power by the other branches.23 These
checks and balances – i.e., the overlapping application of sepa-
rate powers to common circumstances – are not inconsistent
19. U.S. CoNsT. art. I, § 7, cl. 2.
20. Id. art. II, § 2, cl. 2.
21. Id. art. III, § 1.
22. Id. § 2. See also Kilbourn v. Thompson, 103 U.S. 168, 197 (1882) (The judiciary
may declare a House committee’s investigation “beyond [its] legitimate cognizance.”);
McCulloch, 17 U.S. (4 Wheat.) 316:
Should Congress, in the execution of its powers, adopt measures which are prohib-
ited by the constitution; or should Congress, under the pretext of executing its
powers, pass laws for the accomplishment of objects not entrusted to the govern-
ment; it would become the painful duty of this tribunal, should a case requiring
such a decision come before it, to say that such an act was not the law of the land.
Id. at 423.
See generally Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
23. As James Madison wrote: “[T]he great security against a gradual concentration
of the several powers in the same department, consists in giving to those who administer
each department, the necessary constitutional means, and personal motives, to resist en-
croachments of the others.” THE FEDERALIST No. 51, at 349 (J. Madison) (J. Cooke ed.
1961).
[Vol. 7:575
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SEPARATION OF POWERS
with the constitutional separation of powers. Indeed, they com-
plement the separation of powers: “Without the power to with-
stand encroachments by another branch, a department might
find its powers drained to the point of extinction.” ’24
Further, adherence to the constitutional requirements for
the separation of powers does not disable government from
functioning effectively, nor preclude the branches from develop-
ing innovative solutions to new and exigent problems, nor man-
date government insensitivity to the changing needs of the na-
tion, as some critics have argued.” The constitutional separation
of powers does not preclude such experimentation; it merely re-
quires that each branch operate within the limits of its assigned
powers in achieving its goals.” As Justice Jackson stated:
“While the Constitution diffuses power the better to secure lib-
erty, it also contemplates that the practice will integrate the dis-
24. L. FISHER, supra note 7, at 14.
25. See, e.g., Bator, The Constitution and the Art of Practical Government, 32 Chi.
L. Sch. Rec. 8 (1986). Professor Bator – perhaps a bit hyperbolically – describes the
insistence on close adherence to the constitutional prescriptions for the separation of
powers as a “riot of pedantic separation-of-powers purity.” Id. at 12. Claiming that the
separation of powers provisions in the Constitution should be understood simply “as set-
ting out very general guidelines,” Professor Bator would interpret these provisions in
light of “a deep notion [of] the necessities of the time,” substituting what he calls “con-
stitutional style” for constitutional substance. Id.
However, as another scholar has written:
[B]y pretending that the Constitution can be whatever necessity requires, one
would erode the Constitution’s authority by rendering it too shapeless and mallea-
ble to function as a standard for judging events…. As “supreme Law,” the Con-
stitution expresses a belief that the nation can plan for contingencies and that the
plans can be more or less supreme. Not everyone agrees. Some… will not believe
that general legal prescriptions can cover contingencies [and] will favor govern-
ment by men and women who have a prudential feel or knack for maneuvering
their way through contingencies, having acquired this special competence either
from God, nature, education, or practical experience.
S. BARBER, supra note 18, at 190-91 (footnote omitted).
26. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976):
Congress could not, merely because it concluded that such a measure was “neces-
sary and proper” to the discharge of its substantive legislative authority, pass a
bill of attainder or ex post facto law contrary to the prohibitions contained in
[section] 9 of Art. I. No more may it invest in itself, or in its officers, the authority
to appoint officers of the United States when the Appointments Clause by clear
implication prohibits it from doing so.
Id. at 135 (emphasis in original).
See also 3 R. ROTUNDA, J. NOWAK & J. YOUNG, TREATISE ON CONSTITUTrIoNAL LAW
SUBSTANCE AND PROCEDURE § 23.38, at 521-22 (1986).
1987]
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persed powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but
reciprocity.
‘2 7
Notwithstanding the constitutional requirements of “sepa-
ration of powers” which spell out what each branch can and can-
not do, certain policy choices are open to the branches of gov-
ernment to do what each determines is best for the government
as a whole. For example, it is perfectly legitimate for the execu-
tive or legislative branch” to decide, as a policy matter, to use
restraint in the exercise of its powers so as to avoid conflicts or
confrontations with the other branches, or to seek increased co-
operative decisionmaking with the other branches.2 9 As long as
constitutional powers and functions themselves are not blended,
cooperative interaction among the political departments of gov-
ernment does in fact seem desirable. Thus, although participants
in separation of powers conflicts may assume that there is al-
ways an institutional “duty” to seek to expand the powers of
their respective branches, such an assumption should be re-
27. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J.,
concurring).
28. To some extent, the courts also may avoid separation of powers conflicts through
the exercise of restraint in the decision of cases. For example, although courts may not
refuse to decide valid cases or controversies, if a case can be decided upon two
grounds – one involving a constitutional question, and the other a question of statutory
or general law – the courts, to accord due deference to the other branches of govern-
ment that have spoken on a constitutional issue, ordinarily will refrain from passing on
the constitutional question. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821)
(“[The courts] have no more right to decline the exercise of jurisdiction which is given,
than to usurp that which is not given.”); Spector Motor Serv., Inc. v. McLaughlin, 323
U.S. 101, 105 (1944); Rescue Army v. Municipal Court, 331 U.S. 549, 568-69 (1947); Ash-
wander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).
29. Thus, for example, the present Administration has issued a directive to all exec-
utive departments and agencies announcing that the assertion of executive privilege in
response to congressional requests for information “will be [made] only in the most com-
pelling circumstances, and only after careful review demonstrates that assertion of the
privilege is necessary.” Memorandum for the Heads of Executive Departments and
Agencies from Ronald Reagan 1 (Nov. 4, 1982). Recognizing that good faith negotiations
between Congress and the executive branch historically have minimized the need for
invoking the privilege, and should continue as the primary means for resolving conflicts,
the directive goes on to state that “[t]o ensure that every reasonable accommodation is
made to the needs of Congress, [the] executive privilege shall not be invoked without
specific Presidential authorization.” Id. The memorandum then lists procedures to “be
followed whenever Congressional requests for information raise concerns regarding the
confidentiality of information sought.” Id. at 1-3.
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SEPARATION OF POWERS
jected. Members of each branch should seek not only to preserve
the ability of their branch to exercise the powers and functions
granted it by the Constitution, but should also observe and reaf-
firm the Constitution’s limits on the scope of those powers.
While this attitude is devoutly hoped for among our public offi-
cials, ultimately, the preservation of the constitutional structure
of separate powers is dependent not upon such exercise of wis-
dom by our elected and appointed leadership, but upon the con-
stitutional institutions of checks and balances.
In sum, the Framers chose our structure of government, for
all its inefficiencies, the better to secure liberty and to guard
against tyranny.30 A clear understanding of the constitutional re-
quirements for separation of powers is necessary to ensure that
the purposes sought to be achieved by the division of national
governmental power among three branches are protected and
preserved.
III. Separation of Powers Conflicts
Separation of powers violations may occur in a variety of
ways. Essentially, however, such violations fall into one of two
categories: 1) “[o]ne branch may interfere impermissibly with
the other’s performance of its constitutionally assigned func-
tion” by inserting itself into the operation of another branch’s
duties; or 2) one branch, acting alone, may assume “a function
that more properly is entrusted to another.”‘3 1 Whether an act of
government is valid or invalid under these criteria is determined
by reference to the text of the Constitution, not by resort to gen-
eralizations about the balance of governmental power or theoret-
30. See THE FEDERALIST No. 9, at 51 (A. Hamilton) (J. Cooke ed. 1961) (“The regu-
lar distribution of power into distinct departments – the introduction of legislative bal-
lances [sic] and checks – the institution of courts composed of judges, holding their
offices during good behaviour.., are means, and powerful means, by which the excellen-
cies of republican government may be retained and its imperfections lessened or
avoided.”); THE FEDERALIST No. 47, at 324 (J. Madison) (J. Cooke ed. 1961) (“The ac-
cumulation of all powers legislative, executive and judiciary in the same hands … may
justly be pronounced the very definition of tyranny.”). See also Bowsher v. Synar, 106 S.
Ct. 3181, 3186 (1986) (“The declared purpose of separating and dividing the powers of
government… was to ‘diffus[e] power the better to secure liberty.’ “) (citation omitted)
(alteration in original).
31. Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919, 963 (1983) (Pow-
ell, J., concurring) (citations omitted).
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11
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ical separation of powers principles.
A. Interference by One Branch with Another Branch’s Per-
formance of Its Constitutionally Assigned Function
There are several major areas of recurrent conflict between
the executive and legislative branches. One of the most frequent
conflicts is Congress’ intrusion upon the management and
prosecutorial responsibilities of the executive through use of its
oversight powers. Another recent example of conflict is the un-
constitutional use of legislative vetoes to retain continuing con-
trol over authority delegated to the executive branch.
1. Congressional Oversight-Interference with Prosecu-
tions
Implicit in the grant of legislative power in article I is the
power to acquire information to determine whether to enact new
laws; to determine whether existing laws are still necessary or
need revision; to determine how the executive branch is enforc-
ing the laws; and to expose corruption, inefficiency, and waste in
the administration of the laws.2 The theoretical scope of the
power of inquiry is as broad and far reaching as the potential
power to enact laws and appropriate funds under the
Constitution.”
This power of inquiry, however, is not unlimited. It must be
exercised in aid of legitimate legislative functions, 4 and cannot
be used to arrogate to Congress functions allocated by the Con-
stitution to the executive or judicial branches.3 5 Nor can Con-
32. See, e.g., Watkins v. United States, 354 U.S. 178, 187 (1957); McGrain v. Daugh-
erty, 273 U.S. 135, 173-77 (1927).
33. Barenblatt v. United States, 360 U.S. 109, 111 (1959).
34. “The subject of any inquiry always must be one ‘on which legislation could be
had.'” Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 504 n.15 (1975) (cita-
tion omitted). Furthermore, congressional committees and subcommittees conducting
oversight investigations are restricted to the missions delegated to them through author-
izing or enabling resolutions. “No witness can be compelled to make disclosures on mat-
ters outside that area.” Watkins, 354 U.S. at 206. See also Gojack v. United States, 384
U.S. 702, 714-16 (1966).
35. Barenblatt, 360 U.S. at 111-12; Watkins, 354 U.S. at 187. See generally Kil-
bourn v. Thompson, 103 U.S. 168 (1881). See also L. FISHER, supra note 7:
Were Congress to seek information concerning a pardon, the President could de-
cline on the ground that the matter is solely executive in nature and of no concern
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19871 SEPARATION OF POWERS
gress’ power of inquiry negate the President’s constitutional re-
sponsibility for managing and controlling affairs committed to
the executive branch.”‘ Thus, for example, it is clear that legisla-
tive interference with executive duties – such as open criminal
investigations, prosecutions, or other pending litigation –
which are derived from the constitutional mandate that the Ex-
ecutive “take Care that the Laws be faithfully executed””7 is be-
yond the scope of permissible oversight.3 8
One of many examples of congressional overreaching in this
area was the recent attempt by the Subcommittee on Adminis-
trative Practice and Procedure of the Senate Committee on the
Judiciary to require the Department of Justice to produce docu-
ments from its files relating to a newly reopened criminal inves-
tigation of alleged false shipbuilding claims filed with the Navy
by the Electric Boat Division of General Dynamics. The Sub-
committee sought to subpoena sensitive Department documents
from its investigative files while the matter was under active in-
vestigation before a sitting grand jury. 9
to Congress…. The President need not disclose to anyone in Congress the details
of a treaty being negotiated. He may do so to enlist the support of legislators, but
the invitation is voluntary on his part. He does so for political, not constitutional,
reasons. Nor is the President under any obligation to share with members of Con-
gress the plans of tactical military operations.
Id. at 205-06 (footnote omitted).
36. Compare Myers v. United States, 272 U.S. 52, 161-64 (1926) (The President’s
power to remove, like his power to appoint, was found to be important to his ability to
carry out his constitutional duties and, therefore, was not subject to legislative approval.)
with United States v. Nixon, 418 U.S. 683, 705 (1974) (Recognizing the interests of both
the legislative and judicial branches in fulfilling their constitutional duties, the Court
balanced the legislature’s power of inquiry against the President’s executive privilege
and upheld an order for in camera review of Presidential documents.).
37. U.S. CONST. art. II, § 3.
38. The Supreme Court, in Buckley v. Valeo, 424 U.S. 1, 138-39 (1976), recognized
that the prosecution of criminal, civil or administrative violations is quintessentially an
executive function.
39. In conjunction with the Subcommittee on International Trade, Finance and Se-
curity Economics of the Joint Economic Committee, the Subcommittee on Administra-
tive Practice and Procedure also sought documents relating to closed investigations of
alleged false claims against the Navy by Lockheed and Newport News Drydock and
Shipbuilding Company, a subsidiary of Tenneco, Inc. The Department agreed to turn
over all material regarding these investigations that were not protected against disclosure
by Federal Rules of Criminal Procedure 6(e). Letter from Assistant Att’y Gen. Stephen
S. Trott to Subcommittee on Admin. Practice and Procedure, Comm. on the Judiciary 1-
2 (Oct. 4, 1984) [hereinafter Trott Letter]. The Department also agreed to make availa-
ble materials in the Electric Boat case “on the same basis” once the investigation in that
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Consistent with longstanding executive branch practice, the
Department declined to provide such documents on two
grounds: 1) many of the documents sought constituted grand
jury materials within the meaning of Rule 6(e) of the Federal
Rules of Criminal Procedure, which prohibits the Department
from disclosing matters occuring before a grand jury; and 2) the
“constitutionally mandated separation of the executive and leg-
islative functions” required those files not protected by Rule
6(e) to be held in confidence until the close of the investigation
in order to preserve the credibility and integrity of the Depart-
ment’s prosecutorial and investigative operations. Premature re-
lease of the material from the investigative file could have dam-
aged the confidence and cooperativeness of witnesses, the
integrity of the case development, the independence of prose-
cutorial decisions, and the strategy of future prosecution.’0
Without articulating any basis for disagreement with the le-
gal position taken by the Justice Department, the Subcommittee
continued to press for release of documents pertaining to the
Electric Boat investigation, threatening to “do whatever it must
to enforce its subpoena” if its requests were not honored.4 After
several more attempts to reach an accommodation, the Depart-
ment ultimately agreed to turn over documents from its closed
investigative files on Electric Boat, after redacting Rule 6(e) ma-
terial, despite the belief that those documents were pertinent to
case was closed. Id. at 4.
40. The Department consistently refused the disclosure of such statements. Trott
Letter of Oct. 4, supra note 39, at 3-4. See, e.g., Position of the Executive Department
Regarding Investigative Reports, 40 Op. Att’y Gen. 45 (1941):
It is the position of this Department, restated now with the approval of and
at the direction of the President, that all investigative reports are confidential
documents of the executive department of the Government, to aid in the duty laid
upon the President by the Constitution to “take care that the laws be faithfully
executed,” and that congressional or public access to them would not be in the
public interest.
Disclosure of the reports could not do otherwise than seriously prejudice law
enforcement. Counsel for a defendant or prospective defendant, could have no
greater help than to know how much or how little information the Government
has, and what witnesses or sources of information it can rely upon. This is exactly
what these reports are intended to contain.
Id. at 46.
41. Statement of the Subcommittee on Administrative Practice and Procedure ac-
companying Subpoena of Att’y Gen. (Oct. 5, 1984).
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SEPARATION OF POWERS
the ongoing investigation. The Subcommittee thereafter did not
insist on documents from the Department’s open investigative
files.
The dispute over the Electric Boat files illustrates how diffi-
cult it may sometimes be for members of one branch – even
Senators normally sensitive to such issues – to recognize the
danger to separation of powers principles involved in the pursuit
of certain institutional goals. In this case, congressional efforts to
obtain access to information pertinent to ongoing criminal inves-
tigations seriously threatened to impinge upon authority vested
by the Constitution in the executive branch. Article II of the
Constitution places the power to enforce the laws squarely in the
executive branch of government. The Executive therefore has
the exclusive authority to enforce the laws adopted by Congress,
and neither the judicial nor the legislative branches may en-
croach upon that authority by interfering with the prosecutorial
discretion of the executive branch.2 The executive branch has
an obligation flowing from the due process clause to insure that
the fairness of its decisionmaking with respect to its
prosecutorial function is not compromised by excessive congres-
sional pressures. As the Supreme Court once stated: “It is the
peculiar province of the legislature to prescribe general rules for
the government of society; the application of those rules to indi-
viduals in society would seem to be the duty of other
departments.’
’43
For similar reasons, the executive branch has opposed pro-
posed legislation to amend Rule 6(e) of the Federal Rules of
Criminal Procedure to permit congressional access to grand jury
materials.” Congressional access to Rule 6(e) materials would
not aid the Executive in fair and efficient enforcement of the
laws, but would interfere with the Executive’s duty to enforce
the law. Therefore, the Department of Justice has taken the po-
sition that “it would be inconsistent with both the separation of
powers and due process clauses for Congress to become a part-
42. United States v. Nixon, 418 U.S. 683, 693 (1974); Confiscation Cases, 74 U.S. (7
Wall.) 454, 456-57 (1869).
43. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 136 (1810).
44. S. 1562, 99th Cong., 1st Sess. § 5(a) (1985).
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ner in an investigation through its access to 6(e) materials.””5
2. Legislative Vetoes
Until 1983, Congress for six decades often sought to inter-
fere with executive branch responsibilities through use of legisla-
tive veto provisions in legislation delegating administrative and
other authority to the Executive.4 6 In the legislative veto’s most
common form, executive branch decisions could be reversed,
within a specified time period, by a disapproval resolution of one
or both Houses of Congress, or sometimes even a committee. Ad-
vocates of legislative vetoes found them to be pragmatic, effi-
cient accommodations between the two branches by which Con-
gress was willing to give broad discretion to the Executive in
exchange for retaining the opportunity to review and disapprove
the Executive’s exercise of that discretion. They argued that in
determining the constitutionality of the legislative veto, “[o]ne
must consider not only the technical constitutional arguments
[that] bear on the legitimacy of the veto, but … also . . .the
institutional relationships within which the veto operates.
’47
Judged in this light, advocates contended, such vetoes were con-
sistent with the aims of the separation of powers doctrine be-
cause they helped maintain the balance of power between the
two political departments of government. 8
Opponents, on the other hand, argued that the legislative
veto violated specific constitutional provisions prescribing the
participation of both Houses of Congress in the exercise of the
lawmaking power,49 requiring presentment of legislation to the
President, 0 and precluding congressional participation in the
45. Letter from Acting Assistant Att’y Gen. Phillip D. Brady to Honorable Strom
Thurmond, Chairman of the Senate Committee on the Judiciary 10 (Oct. 22, 1985).
46. See, e.g., Nixon v. Administrator of General Servs., 433 U.S. 425 (1977).
47. Abourezk, supra note 1, at 325.
48. See generally Abourezk, supra note 1; Cooper & Cooper, The Legislative Veto
and the Constitution, 30 GEo. WASH. L. REv. 467 (1962); Javits & Klein, Congressional
Oversight and the Legislative Veto: A Constitutional Analysis, 52 N.Y.U. L. REV. 455
(1977); Miller & Knapp, supra note 1; Schwartz, Legislative Veto and the Constitu-
tion – A Reexamination, 46 GEo. WASH. L. REv. 351 (1978). See also Bator, supra note
25, at 11.
49. U.S. CONST. art. I, §§ 1, 7.
50. Id. § 7, cls. 2, 3.
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SEPARATION OF POWERS
execution of enacted law.61 The bicameral requirement and the
presentment clauses of the Constitution serve an essential con-
stitutional function in preserving the balance of power between
the legislative and executive departments. Moreover, once Con-
gress has made its policy judgment by enacting a law, the legis-
lative function comes to an end; the Constitution vests the im-
plementation of that policy in the Executive. Accordingly,
opponents argued, legislative vetoes were inconsistent with the
scheme for maintaining the separation of powers spelled out in
the Constitution.2
Opponents also asserted that by enacting open-ended dele-
gations with legislative vetoes, Congress was shirking its respon-
sibilities: Congress should be dutybound to pass statutes that
contain precise delegations limited by clear standards. 3 The leg-
islative veto permitted Congress to avoid direct legislative re-
sponsibility for crucial policy choices by allowing it to react to
perceived agency abuses without imposing a concomitant duty
to enact more detailed statutory standards to guide future
agency actions.
54
In 1983, the Supreme Court, in Immigration and Naturali-
zation Service v. Chadha,a5 sided with opponents of the legisla-
tive veto and held the device unconstitutional. Concentrating on
the procedural requirements of the Constitution, Chief Justice
51. The Constitution declares that the executive power shall be vested in the Presi-
dent, U.S. CONST. art. II, § 1; and grants the Executive exclusive authority to “take Care
that the Laws be faithfully executed.” Id. § 3.
52. See, e.g., Brief for the Immigration and Naturalization Serv. at 26-34, 44-56,
Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919 (1983) (Nos. 80-1832, 80-
2170, 80-2171); Motion for Leave to File and Brief of American Bar Association as Ami-
cus Curiae at 7-15, 21-22, Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919
(1983) (Nos. 80-1832, 80-2170, 80-2171); Brief of Certain Members of the United States
House of Representatives, Amici Curiae at 10-11, 23, Immigration and Naturalization
Serv. v. Chadha, 462 U.S. 919 (1983) (Nos. 80-1832, 80-2170, 80-2171); Bruff & Gellhorn,
Congressional Control of Administrative Regulation: A Study of Legislative Vetoes, 90
HARV. L. REV. 1369, 1373-74 (1977). For a more thorough discussion of legislative vetoes,
see generally Dixon, The Congressional Veto and the Separation of Powers: The Execu-
tive on a Leash?, 56 N.C.L. REV. 423 (1978); Martin, The Legislative Veto and the Re-
sponsible Exercise of Congressional Power, 68 VA. L. REV. 253 (1982).
53. See Motion for Leave to File and Brief of American Bar Association as Amicus
Curiae at 23-26, Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919 (1983)
(Nos. 80-1832, 80-2170, 80-2171); Martin, supra note 52, at 288-90.
54. See Bruff & Gellhorn, supra note 52, at 1427; Martin, supra note 52, at 289-90.
55. 462 U.S. 919 (1983).
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Burger wrote for the Court that every legislative action requires
bicameral congressional action and presentment to the Presi-
dent.56 The Court defined “legislative action” broadly to include
all actions with the “purpose and effect of altering the legal
rights, duties, and relations of persons, including … Executive
Branch officials … outside the Legislative Branch. ‘6 7 The legis-
lative veto not only failed to comport with the procedures which
Congress was constitutionally obligated to follow in passing leg-
islation, it impermissibly interfered with the President’s role in
the lawmaking process by denying him the opportunity to veto
legislation.
Notwithstanding Chadha, the debate over the legislative
veto has continued. The current issue is whether Congress can
accomplish the goals of the legislative veto using constitutional
means. The most common proposal is for legislation that re-
quires the executive branch to notify Congress of certain actions
and thereafter to wait a specified period before implementing
those actions in order to allow Congress to pass a joint resolu-
tion of approval, or disapproval, which would be presented to
the President. One observer has stated that “[tihese so-called
‘report and wait’ requirements were recognized by the Supreme
Court in Chadha as a constitutionally acceptable alternative to
the legislative veto.”65 However, Congress continues to enact
“statutory mechanisms … to control current, planned, or pro-
posed executive actions” that suffer from the same infirmities as
the legislative veto.”0 For example, Congress has passed a num-
ber of appropriations acts after Chadha that include provisions
empowering the Appropriations Committees of both Houses to
approve or disapprove certain expenditures of funds without
participation by both Houses of Congress and presentment to
56. Id. at 946-51.
57. Id. at 952.
58. Id. at 951-52.
59. Letter from Att’y Gen. William French Smith to Honorable George Bush, Presi-
dent of the Senate 6 (Nov. 21, 1984) (citing Chadha, 103 S. Ct. at 2783) [hereinafter DOJ
CICA Letter]. See also Chadha, 462 U.S. at 935 n.9. See, e.g., Sibbach v. Wilson & Co.,
312 U.S. 1, 14-15 (1941) (Congress was authorized to review the Federal Rules of Civil
Procedure before they became effective without violating the Constitution.).
60. Kaiser, Congressional Control of Executive Actions in the Aftermath of the
Chadha Decision, 36 AD. L. REv. 239, 243 (1984).
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1987] SEPARATION OF POWERS
the President.6 1 The President has objected vigorously to the in-
clusion of such committee veto provisions in appropriations bills
and has urged Congress not to include them in the future.2
3. Congressional Impediments to Executive Branch
Management
Over the years, Congress has placed all types of restrictions
in appropriations and other bills that limit the flexibility of the
President and his agency heads to manage the government. Per-
haps the most egregious example during recent years was the
enactment of provisions in the Competition in Contracting Act
of 1984 (CICA)6 3 granting the Comptroller General the authority
to lift the stay automatically imposed under CICA when a bid
protest is filed,”” and purporting to authorize the Comptroller
General to make binding awards of attorneys’ fees and bid prep-
aration costs to successful bid protesters.6 5
The Department of Justice refused to defend the constitu-
tionality of these provisions because they authorize the Comp-
troller General, a legislative officer,6 6 to act in an executive ca-
pacity by making binding decisions regarding the bid protest
process.6 7 As a practical matter, the Comptroller General could
effectively suspend any procurement indefinitely simply by de-
61. Id. at 240, n.4, 243-44.
62. See Department of Housing and Urban Development – Independent Agencies
Appropriation Act, 1985, 20 WEEKLY Comp. PREs. Doc. 1039-40 (July 18, 1984) (objecting
to the inclusion of seven such legislative veto devices in the 1985 appropriations bill for
the Department of Housing and Urban Development (HUD)). See also American Fed’n
of Gov’t Employees v. Pierce, 697 F.2d 303, 306 (D.C. Cir. 1982) (declaring appropria-
tions committee veto provision in earlier HUD appropriation bill unconstitutional).
63. The Competition in Contracting Act of 1984 was enacted as part of the Deficit
Reduction Act of 1984, Pub. L. No. 98-369, 98 Stat. 494 (1984).
64. 31 U.S.C. § 3553(c), (d) (Supp. III 1985).
65. 31 U.S.C. § 3554(c)(1) (Supp. III 1985).
66. The Comptroller General’s post and duties and the General Accounting Office
that he directs, were established by the Budget and Accounting Act of 1921, §§ 301-302,
31 U.S.C. §§ 701-779 (1982 & Supp. III 1985). The Act gives the Comptroller General the
authority to investigate the receipt and disbursement of public funds and to settle and
adjust all claims and accounts of the federal government. See id. §§ 712, 3526, 3702
(1982). Although the President has the power to appoint the Comptroller General, Con-
gress may remove him for statutorily specified cause. See id. § 703(e)(1) (1982). This
power of removal makes the Comptroller subservient to Congress and therefore an agent
of the legislative branch. See Bowsher v. Synar, 106 S. Ct, 3181, 3191 (1986).
67. See DOJ CICA Letter, supra note 59, at 5, 9.
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laying his decision on a bid protest for an indefinite period. Such
authority amounts to a power that, in the words of the Supreme
Court, has the “effect of altering the legal rights, duties, and re-
lations of persons . . .outside the Legislative Branch.” ‘ 8 In our
view, as a constitutional matter, there is little difference between
this power and the power of a legislative veto.
The provision permitting the Comptroller General to award
costs against a federal agency, including attorneys’ fees and bid
preparation costs, to a prevailing protester, suffers from a simi-
lar constitutional infirmity. This is because by purporting to vest
in the Comptroller General the power to award damages against
an executive branch agency, Congress has attempted to give its
agent the authority to “alter the legal rights, duties, and rela-
tions of persons .. .outside the Legislative Branch.”6 9 When
Congress takes such actions, it must do so by passing a law and
submitting it to the President in accordance with the present-
ment clauses. °
It is also eminently arguable that the Comptroller General’s
authority to overrule the determinations of an executive branch
agency and to assess costs and damages against it is judicial in
nature, and belongs more properly to the judicial branch.7 1 If so,
“Congress may no more exercise [such power] than it may exer-
cise executive authority.
7
1
2
Despite these concerns, the Third Circuit Court of Appeals,
in Ameron, Inc. v. United States Army Corps of Engineers,73
has upheld the constitutionality of CICA’s stay provisions as
consistent with the principles of the separation of powers.
7 4 It
concluded that Congress may legitimately investigate executive
68. Chadha, 462 U.S. at 952.
69. Id.
70. U.S. CONST. art. I, § 7, cls. 2, 3.
71. See DOJ CICA Letter, supra note 59, at 8; See also Chadha, 462 U.S. at 964-65
& n.8 (Powell, J., concurring) (wherein a similar argument, that the legislative review of
an executive decision was an unconstitutional assumption of judicial duties by the legis-
lature, was addressed).
72. DOJ CICA Letter, supra note 59, at 8.
73. 809 F.2d 979 (3d Cir. 1986).
74. Id. at 42-43. Because the Comptroller General had declined to order reimburse-
ment of Ameron’s costs, and because Ameron made no claim for reimbursement in its
complaint, the court concluded that the constitutionality of CICA’s fee provision was not
ripe for judicial review. Id. at 988.
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SEPARATION OF POWERS
conduct in administering the procurement laws without enacting
legislation and could properly delegate such investigative au-
thority to one of its agents. Thus, “[aibsent a usurpation of ex-
ecutive authority, or an unconstitutional interference with it, the
Comptroller [General’s] actions pursuant to CICA [in the court’s
view] represent[ed] a proper exercise of congressional [oversight]
authority.””‘
The court found that CICA’s stay provisions did not author-
ize the Comptroller General to usurp executive authority
because
[t]he only grant of power to the executive [branch] in CICA [was]
the right, under certain circumstances, to override the ninety day
stay or any extension thereof which the Comptroller General
might impose. CICA [did] not grant… authority to the Comp-
troller General to dictate how the executive [exercised its] author-
ity to override the stay. 6
The court also found that CICA did not otherwise authorize
the Comptroller General to execute the procurement laws for
three reasons. First, execution of the procurement laws involved
making decisions about the time and price of purchases, and
from whom those purchases could be made. Further, the Comp-
troller General, was authorized to consider only the length of
time necessary to resolve a bid protest when deciding whether to
extend or shorten the stay. Second, even if the Comptroller Gen-
eral decided that more time was necessary, the executive was not
always required to obey the Comptroller General’s extension of
the stay;”7 and third, the executive was free to ignore the Comp-
troller General’s recommendation on the merits of the protest.”
75. Id. at 993.
76. Id. at 994.
77. Id. at 995. Before a purchase decision has been made the statute permits over-
ride of the stay if “urgent and compelling circumstances which significantly affect inter-
ests of the United States will not permit waiting for the decision of the Comptroller
General.” 31 U.S.C. § 3553(c)(2)(A) (Supp. III 1985).
78. Ameron, 809 F.2d at 995. The court stated that “[i]f agencies choose not to im-
plement the Comptroller General’s recommendations, they are bound only to report
their reasons.” Id. at 995 (citing 31 U.S.C. § 3554(e)(1)). The statutory provision, how-
ever, states only that “[tihe head of the procuring activity responsible for the solicita-
tion, proposed award, or award of the contract shall report to the Comptroller General, if
the Federal agency has not fully implemented those recommendations within 60 days of
receipt of the Comptroller General’s recommendations under subsection (b) of this sec-
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Finally, the court held that CICA did not authorize the
Comptroller General to interfere impermissibly with the Execu-
tive’s performance of its procurement duties. Although it ac-
knowledged that the Comptroller General’s authority to
lengthen or shorten the stay might affect executive decisionmak-
ing, “a balancing of legislative and executive interests demon-
strate[d] that this interference [was] entirely justified,” espe-
cially in light of the fact that “any potential disruption of the
executive function [was] minimal.”‘ More significantly, the
court concluded, “CICA effectuate[d], rather than disrupt[ed],
the ‘proper balance’ of power between the executive and legisla-
tive branches.” 80
In his concurrence, Judge Garth asserted that a reexamina-
tion of the whole statute was unnecessary. He focused only on
“the critical and challenged portion of the legislation, rather
than the entire enactment itself.”81 Judge Garth determined
that whether the stay provision was consistent with the constitu-
tional separation of powers turned on “an assessment of the de-
gree of the alleged intrusion into the authority of the coordinate
branch.’82 Concluding that “the very limited power granted to
the Comptroller General under CICA [did] not undermine the
role of the Executive Branch,” he determined that the stay
power “[did] not … violate separation-of-powers principles.”s
The problem with the majority and concurring opinions in
Ameron is that neither assesses the validity of CICA’s stay au-
thority in light of specific constitutional provisions; 8 both rely
tion.” 31 U.S.C. § 3554(e)(1) (emphasis added). It does not state that the procuring head
may ignore the Comptroller General’s recommendation.
In any event, before the Comptroller General rules on the protest, the statute pre-
vents the contracting agent from awarding the challenged contract, or from allowing per-
formance of a contract already awarded, except in “urgent and compelling circum-
stances” significantly affecting the interests of the United States. Only after the
Comptroller General rules is the agency freed from this statutory restraint. See id. §
3553(c).
79. Ameron, 809 F.2d at 997.
80. Id. at 998.
81. Id. at 1001 (Garth, J., concurring).
82. Id. at 1000.
83. Id. at 1001.
84. The majority refers once to “[tihe President’s duty under the Constitution ‘to
take care that the laws are faithfully executed,’ (which] is accompanied by the grant of
‘the executive power.'” Ameron, 809 F.2d at 993 (citations omitted).
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SEPARATION OF POWERS
instead on generalized notions about separation of powers to
conclude that the limited intrusion into executive functions oc-
casioned by the stay authority did not unduly upset the balance
of power between the executive and legislative branches and was
therefore constitutional.
In our view, however, the authority vested in the Comptrol-
ler General by virtue of CICA, when analyzed under the actual
text of the Constitution, goes beyond the authority that may be
constitutionally exercised by an agent of Congress. Because the
statute endows the Comptroller General with power to dictate
when – and by delaying decision – even if a procurement
may proceed, it gives him power to “alter legal rights, duties,
and relations of persons . . . outside the Legislative Branch.”8
As Chadha recognizes, the exercise of such power is constitu-
tionally permissible only through bicameral action by Congress
and presentment to the President.”6 The exercise of authority
granted to the Comptroller General under the stay provision of
CICA fails to comport with these requirements.
In addition, the Constitution confers the executive power on
the President,8″ and imposes on the Executive the responsibility
to “take Care that the Laws be faithfully executed.”88 As the
Supreme Court has stated, “[i]nterpreting a law enacted by Con-
gress to implement the legislative mandate is the very essence of
‘execution’ of the law. ‘” 8 9 Under CICA, the Comptroller General
is empowered to determine whether a particular protest is “friv-
olous,” whether it “state[s] a valid basis for protest,” or whether
“the specific circumstances of the protest” 90 require staying per-
formance of the government’s contract for longer than the statu-
tory period. 1 Clearly, the Comptroller General is executing the
law, because in discharging these responsibilities, he interprets
provisions of CICA and must exercise judgment regarding facts
85. Chadha, 462 U.S. at 952.
86. See generally id. at 946-51 (discussing the presentment clause and the principle
of bicameralism as contained in the Constitution and their relationship to one another).
87. U.S. CONST. art. II, § 1, cl. 1.
88. Id. § 3.
89. Bowsher v. Synar, 106 S. Ct. 3181, 3192 (1986).
90. 31 U.S.C. § 3554(a)(3) (Supp. III 1985).
91. Id. § 3554(a)(1).
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affecting the implementation of the Act.9 2 As the Justice Depart-
ment argued in its brief before the Third Circuit, by placing re-
sponsibility for execution of the law in the hands of an officer
who is an agent of Congress, Congress impermissibly retained
control over the execution of the procurement laws and uncon-
stitutionally intruded into the executive function.9 3
B. One Branch Impermissibly Assumes the Functions of An-
other Branch
Basic to our constitutional structure of government is the
recognition that each branch is supreme “within its own as-
signed area of constitutional duties. ’94 Accordingly, no branch,
consistent with the Constitution, may arrogate to itself or to its
officers the powers conferred on the other branches.
1. Congressional Vesting of Article III Power in Non-Ar-
ticle III Judges
In 1978, Congress enacted a comprehensive revision of the
bankruptcy laws called the Bankruptcy Reform Act of 1978.”
Before the 1978 Act, the district courts served as bankruptcy
courts and used “referees” to conduct bankruptcy proceedings.9 6
The referee’s final order was appealable to the district court.97
The 1978 Act eliminated the referee system and established a
United States Bankruptcy Court as an adjunct to each district
court.9 8 The judges of this new bankruptcy court were appointed
to office for fourteen-year terms by the President, with the ad-
vice and consent of the Senate.9 9 They were subject to removal
by the “judicial council of the circuit” on account of “incom-
92. Bowsher, 106 S. Ct. at 3192.
93. Brief for Defendants-Appellants at 20-26, Ameron, Inc. v. United States Army
Corps of Eng’rs, Nos. 85-5226 & 85-5377, slip op. (3d Cir. Dec. 31, 1986). See also Bow-
sher, 106 S. Ct. at 3192.
94. See United States v. Nixon, 418 U.S. 683, 705 (1974).
95. Pub. L. No. 95-598, 92 Stat. 2549 (codified as amended at 11 U.S.C. §§ 101-
151326 (1982 & Supp. III 1985)).
96. See Bankr. R. 102, 11 U.S.C. App. § 101.
97. Bankr. R. 801, 11 U.S.C. App. § 101.
98. 28 U.S.C. § 151 (Supp. III 1985).
99. Id. 152(a)(1). See also id. § 153 (duties and responsibilities of Bankruptcy
Judges).
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SEPARATION OF POWERS
petenc[y], misconduct, neglect of duty, or physical or mental
disability.”10 0 In addition, the salaries of the bankruptcy judges
were set by statute ‘0 1 and were subject to adjustment under the
Federal Salary Act.
1 0 2
Although the bankruptcy judges were not accorded the pro-
tections of article III judges,10 3 the new Bankruptcy Court was
granted jurisdiction over all “civil proceedings arising under title
11 [the Bankruptcy title] or arising in or related to cases under
title 11.”104 This grant of jurisdiction essentially empowered the
new bankruptcy judges to adjudicate constitutional and state-
created rights. For this reason, the Supreme Court, in Northern
Pipeline Construction Co. v. Marathon Pipe Line Co.,10 5 held
the Act unconstitutional as an impermissible incursion into the
judicial power.10 6
The plurality of the Court in Marathon recognized that
Congress retained broad power to prescribe the manner in which
rights that it creates may be adjudicated – including the as-
signment to a non-article III officer of some of the functions his-
torically performed by judges. 10 7 However, it concluded that
Congress could not remove from article III authority matters
falling within the purview of the judicial power – particularly
the adjudication of rights Congress did not create. 08 Because
the Act “removed most, if not all, of ‘the essential attributes of
the judicial power'” of article III courts over such issues and
vested them in article I adjuncts, Congress impermissibly as-
signed article III power to non-article III officers.1 09
Two justices concurred in the judgment. They concluded
that the Court need only have decided whether the Bankruptcy
100. Id. at § 152(e).
101. Id. at § 153.
102. 2 U.S.C. §§ 351-61 (1982 & Supp. III 1985).
103. See U.S.CoNsT. art. III, § 1: “The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive
for their Services, a Compensation, which shall not be diminished during their Continu-
ance in Office.”
104. 28 U.S.C. § 1471(b) (Supp. III 1985).
105. 458 U.S. 50 (1982).
106. Id. at 87.
107. Id. at 80.
108. Id. at 83-84.
109. Id. at 87.
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Court’s exercise of jurisdiction in this case – involving only a
state law contract claim – was constitutional. Nevertheless, the
concurring justices agreed that to the extent that the Bank-
ruptcy Act of 1978 allowed non-article III judges to adjudicate
such a claim, the Act violated article III of the Constitution.1 10
Thus, both the plurality and concurring opinions agreed that the
adjudication of actions, which are traditionally tried by the
courts at common law, was at the core of the judicial power and
that only article III judges could exercise such power.’
2. Congressional Assumption of Appointment Power
The appointments clause of the Constitution’ provides in
pertinent part that the President shall appoint, with the advice
and consent of the Senate, all officers of the United States whose
appointments are not otherwise provided for, and that “the Con-
gress may by Law vest the Appointment of such inferior officers,
as [it] think[s] proper, in the President alone, in the Courts of
Law, or in the Heads of Departments.’ ‘ 1 3 In recent years, Con-
gress has attempted to appoint officers of the United States in
violation of the clause.”‘ For example, provisions of the Bank-
ruptcy Amendments and Federal Judgeship Act of 1984115 retro-
actively extended the terms of bankruptcy judges whose terms
had expired and thereby unconstitutionally usurped executive
appointment authority.
The 1984 Act created a new bankruptcy court system to re-
place the system established under the Bankruptcy Reform Act
of 1978 which had been declared unconstitutional in the Mara-
thon case, and vested the power to appoint bankruptcy judges to
that system in the courts of appeals.”” The 1978 Act had con-
tained a four-and-one-half-year transition period before the
bankruptcy court structure under the Act was to take effect. Af-
ter the Supreme Court declared this new structure unconstitu-
110. Id. at 91 (Rehnquist, J., concurring).
111. Id. at 69-70 & n.23; id. at 89-91.
112. U.S. CONST. art. II, § 2, cl. 2.
113. Id.
114. See Buckley v. Valeo, 424 U.S. 1, 127 (1976).
115. Pub. L. No. 98-353, 98 Stat. 333 (1984).
116. 28 U.S.C. § 151 (Supp. III 1985). See also supra notes 91-96 and accompanying
text.
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SEPARATION OF POWERS
tional in Marathon,1 1 Congress enacted various interim mea-
sures to extend the transition period, the last extension expiring
on June 27, 1984.118
The 1984 Act, however, was not enacted until July 10, 1984.
Therefore, Congress sought to cure the problem of the gap in
service by including section 121(e) to extend the term of all
bankruptcy judges to the day of enactment of the Act if they
were serving when the bankruptcy court emergency authoriza-
tion provisions expired on June 27, 1984.” e Section 106(a) ex-
tended these retroactive appointments so that their terms would
expire on the date “four years after the date such bankruptcy
judge was last appointed to such office or on October 1, 1986,
whichever [was] later.”‘ 20
In refusing to defend sections 106(a) and 121(e) of the Act,
the Department of Justice took the position that these provi-
sions violated the appointments clause. 2′ The bankruptcy
judges’ offices and terms had expired on June 27, and the July
10 retroactive reappointment was an improper congressional
usurpation of the executive branch’s appointment power.12 2
To date, no court has embraced the Department’s constitu-
tional argument. 23 The courts’ constitutional analysis, however,
typically has focused on the reasonableness of the retroactive ex-
tensions of the bankruptcy judges’ terms in light of the purposes
of the appointments clause and the aims of the separation of
powers. For example, noting that Congress could constitution-
ally make changes in the duties of any office it creates, including
the length of the term of service, as long as it did not impair the
appointment power, the Fifth Circuit held:
Under the limited circumstances of this case, it is clear that the
117. See supra notes 98-104 and accompanying text.
118. Pub. L. No. 98-249, 98 Stat. 116 (1984); Pub. L. No. 98-271, 98 Stat. 163 (1984);
Pub. L. No. 98-299, 98 Stat. 214 (1984); Pub. L. No. 98-325, 98 Stat. 268 (1984).
119. Pub. L. No. 98-353, § 121(e), 98 Stat. 333, 346 (1984).
120. Pub. L. No. 98-353, § 106(a), 98 Stat. 333, 342 (1984).
121. See Letter from Att’y Gen. William French Smith to Honorable George Bush,
President of the Senate 1-2 (Sept. 5, 1984).
122. Id. at 4-5.
123. See, e.g., Koerner v. Colonial Bank, 800 F.2d 1358, 1362-66 (5th Cir. 1986);
Tom Carter Enters., Inc. v. Lummis, 44 Bankr. 605, 608 (C.D. Cal. 1984); In re Benny, 44
Bankr. 581, 589 (N.D. Cal. 1984), appeal dismissed, 791 F.2d 713 (9th Cir. 1986), aff’d on
recertification by district court, 812 F.2d 1133 (9th Cir. 1987).
19871
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action of Congress was a constitutionally reasonable change in
the term of an existing office.
The gap was minimal. Its occurrence was plainly accidental
and the response was both consistent with past action and
reasonable.
To the remote extent the Appointments Clause can be said
even to be implicated in this scenario, there was no Congressional
intent to violate it.
Congress did not . . . upset the constitutional symmetry
among the branches.””
The Northern District of California, held that the 1984 Act
was “well within the long established constitutional limits of
Congressional power and [did] not violate the letter or spirit of
the Appointments Clause or the separation of powers doctrine it
embraces. 1 2′ The court stated:
[T]he need for “a workable government” justifies the retention of
interim or transitional bankruptcy judges to preserve the bank-
ruptcy system despite the passage of less than two weeks from
the expiration of the 1978 Act until the enactment and effective-
ness of the 1984 Act.
To conclude that Congress’ retroactive extension of bank-
ruptcy judges’ terms constitutes new “appointments” would …
be to “trivialize the great historic experience on which the Fram-
ers based the safeguards” of the Appointments Clause. 2
Whether the gap in the bankruptcy judges’ terms was acci-
dental, and whether Congress sought to further some desirable
legislative purpose rather than to usurp the functions of a coor-
dinate branch, 12 7 the fact remains that the terms of the transi-
tional bankruptcy judges had in fact lapsed. Once this occurred,
their offices terminated and they ceased to be bankruptcy
judges. In our opinion, they could not again become bankruptcy
judges except by new appointments made pursuant to article II.
Technical? Perhaps. But sections 106(a) and 121(e) of the 1984
Amendments circumvented the strictures of article II by making
124. Koerner, 800 F.2d at 1367 (emphasis added).
125. Benny, 44 Bankr. at 596.
126. Id. at 597-98.
127. See Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919, 951 (1983)
(“The hydraulic pressure inherent within each of the separate Branches to exceed the
outer limits of its power, even to accomplish desirable objectives, must be resisted.”).
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SEPARATION OF POWERS
bankruptcy judges officers of the United States once more, even
though their selection was accomplished by neither of the meth-
ods prescribed in the appointments clause, but rather by legisla-
tive command. As a result, Congress had assumed for itself func-
tions delegated by the Constitution to the other two branches. ”
3. Federal Balanced Budget Act
Perhaps the most recent example of congressional assump-
tion of executive powers occurred in the Balanced Budget and
Emergency Deficit Control Act of 1985 (Gramm-Rudman).”‘
Gramm-Rudman imposes a ceiling on the federal deficit for each
fiscal year from 1986 to 1991.130 The Act directs the Comptroller
General to review reports submitted by the Directors of the Of-
fice of Management and Budget (OMB) and the Congressional
Budget Office (CBO) and, on the basis of those reports, to calcu-
late and order budget reductions.” The Act also directs the
Comptroller General to report his conclusions to the President,
who is in turn required to issue an initial “sequestration” order
mandating the spending reductions specified by the Comptroller
General.13 2 Within a certain period, Congress may reduce spend-
ing by legislation to obviate, in whole or in part, the need for the
sequestration order; but if such reductions are not enacted, the
sequestration order becomes effective and the spending reduc-
tions included in that order have to be made.
133
The Act also contains a fallback provision, to take effect in
the event a court may hold the reporting procedures unconstitu-
tional, whereby the directors of OMB and CBO would submit
their reports directly to a Joint Committee on Deficit Reduction,
composed of the entire membership of the Budget Committees
of both Houses. That committee would propose a joint resolu-
128. See Benny, 44 Bankr. at 592-98 (The court examines but rejects the argument
that Congress exceeded its constitutional powers in violation of the appointments clause
when it made its bankruptcy judge appointments retroactive.).
129. 2 U.S.C. §§ 901-922 (Supp. III 1985).
130. See id. § 901(a)(3). If in any fiscal year the federal deficit exceeds the ceiling by
more than a specified amount, the Act requires across-the-board cuts in federal spending
to reach the targeted deficit level. See id.
131. See id. § 901(b)(1).
132. See id. § 902(a)(1).
133. See id. § 902(a)(6)-(b)(3).
1987]
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tion to both Houses of Congress, which, if enacted, would serve
as the basis for a presidential sequestration order.””
Proponents of the Act’s constitutionality argued that de-
spite Congress’ power of removal, the Comptroller General was
functionally independent of the legislative branch;1 3 5 that the
duties assigned to the Comptroller General, though involving
him in the interpretation and application of the law, were appro-
priate for an independent agent of government to perform;”3
and that a “technical” separation of powers challenge to the va-
lidity of the Act should not be allowed to nullify a legislative
experiment which sought to address a difficult national
problem. 137
In Bowsher v. Synar,13 however, the Supreme Court held
the Act’s reporting provisions unconstitutional.’ 39 It found that
the duties assigned to the Comptroller General under the Act
required him to exercise judgment concerning facts that affected
the application of the Act, and to interpret the provisions of the
Act to determine what budgetary calculations were required.
These duties “plainly entail[ed] execution of the law in constitu-
tional terms.” 40 Thus, “[bly placing responsibility for execution
of the Balanced Budget and Emergency Deficit Control Act in
the hands of an officer who is subject to removal only by itself,
Congress in effect . . retained control over the execution of the
Act and … intruded into the executive function.”‘ In contrast
to the arguments advanced by proponents of the Act, the Su-
134. See id. § 922(f).
135. See Brief of Appellant United States Senate at 18-25, Bowsher v. Synar, 106 S.
Ct. 3181 (1986) (Nos. 85-1377, 85-1378, 85-1379); Brief of the Speaker and Bipartisan
Leadership Group of the House of Representatives, Intervenor-Appellants at 59-69, Bow-
sher (Nos. 85-1377, 85-1378, 85-1379).
136. See Brief of Appellant United States Senate at 12-13, Bowsher (Nos. 85-1377,
85-1378, 85-1379); Brief of the Speaker and Bipartisan Leadership Group of the House
of Representatives, Intervenor-Appellants at 13-18, Bowsher (Nos. 85-1377, 85-1378, 85-
1379).
137. See Brief of the Speaker and Bipartisan Leadership Group of the House of
Representatives, Intervenor-Appellants at 18-25, Bowsher (Nos. 85-1377, 85-1378, 85-
1379).
138. 106 S. Ct. 3181 (1986).
139. Id. at 3192.
140. Id.. The Court reasoned, “[i]nterpreting a law enacted by Congress to imple-
ment the legislative mandate is the very essence of ‘execution’ of the law.” Id.
141. Id.
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SEPARATION OF POWERS
preme Court’s separation of powers analysis in Bowsher was
squarely rooted in the Constitution:
The Constitution does not contemplate an active role for
Congress in the supervision of officers charged with the execution
of the laws it enacts. The President appoints “Officers of the
United States” with the “Advice and Consent of the Senate. .. .”
Once the appointment has been made and confirmed, however,
the Constitution explicitly provides for removal of Officers of the
United States by Congress only upon impeachment by the House
of Representatives and conviction by the Senate. An impeach-
ment by the House and trial by the Senate can rest only on
“Treason, Bribery or other high Crimes and Misdemeanors.” A
direct congressional role in the removal of officers charged with
the execution of the laws beyond this limited one is inconsistent
with separation of powers. 42
To cure the separation of powers violation, the Court was
urged to invalidate the provisions of the Budget and Accounting
Act of 1921 authorizing Congress to remove the Comptroller
General instead of nullifying the reporting procedures of
Gramm-Rudman. 143 The Court determined, however, that sever-
ance of the removal provisions from the 1921 Act would “recast
the Comptroller General as a [member] of the executive branch
[and] alter the balance that Congress had in mind in drafting
the Budget and Accounting Act of 1921 and the Balanced
Budget and Emergency Deficit Control Act, [not to mention] a
wide array of other tasks and duties Congress has assigned the
Comptroller General in other statutes.”1 44 The Court therefore
concluded that allowing the fallback provisions to come into
play would more closely effect congressional intent. 1 5
IV. Conclusion
This Article has attempted to provide an analytical ap-
proach to understanding our Constitution’s allocation of the
powers of national government and to addressing interbranch
conflicts. It presumes that the Constitution is law, the supreme
142. Id. at 3187 (citations omitted).
143. See id. at 3192-93.
144. Id. at 3193.
145. Id.
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law of the land, and that for the Constitution to be authorita-
tive, it must be considered to provide the rules for deciding
when a branch of government can or cannot act. In analyzing
separation of powers issues, our government and our Constitu-
tion is ill-served by resort to abstract conceptual notions about
governmental power; support for any act of government must be
derived from the text of the document itself.
Where the text of a particular constitutional provision is
ambiguous or vague, resort may be had to other sources indicat-
ing the intent of those who drafted, proposed, and ratified its
provisions and amendments, including the actual tripartite divi-
sion of government itself. Of course, the aim of any extratextual
analysis is only to elucidate the meaning of the actual constitu-
tional text at issue.
These rules of construction are justified by the fact that the
Constitution manifests the written will of the sovereign citizens
of the United States – “[we] the people” assembled in the con-
ventions and legislatures that ratified the Constitution and its
amendments – and as such is supreme, restraining all
branches of the government. Indeed, the rationale for judicial
review rests on the fact that we have a written Constitution with
an ascertainable and permanent meaning that is binding upon
all of us, including our judges.14
While these interpretive rules are the same for all constitu-
tional provisions, the bulk of the original Constitution’s provi-
sions devoted to the structure of the national government, hap-
pily, speaks in clear, unambiguous terms and may be easier to
interpret than others: “Every Bill which shall have passed the
House of Representatives and the Senate, shall, before it be-
comes a Law, be presented to the President of the United
States.”1″” No background inquiry into “purpose” and “intent”
is generally necessary, other than to ascertain that the original
understanding of the terms used comports with the meaning of
these terms today. In fact, as the dissenting opinion in Immigra-
tion and Naturalization Service v. Chadha’4″ illustrates, inquiry
into more generalized intent in the face of explicit provisions can
146. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 181 (1803).
147. U.S. CONST. art. I, § 7, cl. 2.
148. 462 U.S. 919, 977-80 (1983) (White, J., dissenting).
[Vol. 7:575
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1987] SEPARATION OF POWERS 607
be dangerous because such inquiries are more easily manipu-
lated than are straightforward textual arguments.
This is not to suggest that determining the validity of an
exercise of power is always easy. Certainly, legitimate differences
of opinion over the scope of each branch’s authority will con-
tinue to exist. However, as this Article suggests, the proper ap-
proach to resolving separation of powers disputes must start
with an analysis of the Constitution’s provisions establishing the
structure of government and enumerating its powers. First, it
must be determined whether an exercise of government power is
authorized by the Constitution. Second, the exercise of power
cannot violate any limitations found elsewhere in the Constitu-
tion, including such limitations as are implicit in the grant of
specific powers to another branch. Stated somewhat differently,
no branch may impermissibly interfere with the exercise of pow-
ers conferred on another branch or assume for itself powers
committed to another branch.
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