The Separation of Powers

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 771

ß 19 1 The General Nature of the Separation of Powers Doctrine

The separation of powers doctrine combines two ideas. The first is that the Constitution identifies three distinct governmental functions: the legislative power, a power to make law; the executive power, a power to apply law or call for its application, subject to judicial review; and the judicial power, a power to declare authoritatively what the law is and to approve its application in specific cases. The second idea is that no one branch of government can exercise the central power of any other branch or substantially disrupt the operations of that branch. Thus, Congress may not impose core executive or administrative duties, that is, duties of a non-judicial nature, on judges holding office under Article III.1 Similarly, as discussed at ß 19.2, the doctrine bars Congress from delegating to executive or judicial officers the legislative power to make rules without also creating standards by which the power is to be used.2

Lying behind the separation of powers doctrine is the notion of checks and balances. Checks and balances doctrine has two main principles. First, each branch must be given sufficient power to discharge its operations efficiently. Second, to prevent tyranny by any one branch, no branch should have unlimited power. As noted at ß 8.1 n.2, James Madison wrote in The Federalist Papers No. 51, "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."3

Designed in part to promote the goal of efficiency, the separation of powers doctrine does not prohibit one branch from ever exercising a power of the other branches. Indeed, the Constitution expressly authorizes certain blends. For example, Congress exercises a kind of judicial power when it engages in impeachment proceedings. The President exercises a kind of legislative power when vetoing a bill, and a kind of judicial power when granting a pardon. Courts exercised executive powers when, pursuant to the Appointments Clause, they appointed independent counsels under the Ethics in Government Act of 1978, discussed at ß nn.99-104. Justice Powell, concurring in INS v. Chadha,4 and quoting from Justice Jackson, said that the Constitution contemplates that "practice will integrate the dispersed powers into a workable government."

In one of the most notable statements on the doctrine of the separation of powers, Justice Story said in 1833 in his book Commentaries on the Constitution of the United States: Page 772

[The separation of powers doctrine] is not meant to affirm, that [the three branches of government] must be kept wholly separate and distinct, and have no common link or connection or dependence, the one upon the other, in the slightest degree. The true meaning is, that the whole power of one of these departments should not be exercised by the same hands, which possess the whole power of either of the other departments. . . . [A]s a corollary, that, in reference to each other, neither of them ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers."5

Modern natural law Justices agree that the framers and ratifiers were motivated by such a sharing of powers, checks-and-balances view of government, rather than a strict separation of powers approach. At the same time, of course, where the Constitution expressly provides for a particular allocation of power, that text should be followed. Reflecting these two principles, Justice Kennedy cautioned the Court in Public Citizen v. United States Department of Justice both against adopting a strict separation of powers approach and against rewriting the balance of power provided in the Constitution. He noted:

This is not to say that each of the three Branches must be entirely separate and distinct, for that is not the governmental structure of checks and balances established by the Framers. . . . But as to the particular divisions of power lines the Constitution does in fact draw, we are without authority to alter them, and indeed we are empowered to act in particular cases to prevent any other Branch from undertaking to alter them.6

Instrumentalists share this view. However, consistent with their interpretive method, they will place greater weight on arguments of purpose and structure, and less weight on text, than do natural law judges. Instrumentalist judges thus tend to focus on whether the purposes lying behind the structural separation of powers doctrine would be advanced or retarded, especially the need to preserve checks and balances and prevent the tyranny of any one branch. But they are sensitive to text when the text is clear. Thus, in Bowshar v. Synar,7 discussed at ß n.120, instrumentalist Justices Marshall and Stevens joined other members of the Court to hold that Congress may not delegate power to formulate national policy to one of its two Houses, to a legislative committee, or to an individual agent of Congress, such as the Comptroller General, in violation of the Bicameralism Clause's text.

Holmesian judges share the view that separation of powers doctrine should be based on a sharing of powers approach, and a balance between text and purpose. Indeed, because of their strong policy of deference to government, Holmesian judges are the most likely to defer to arrangements agreed- upon by the other branches, unless those arrangements clearly violate the Constitution. For example, in INS v. Chadha,8 discussed at ß nn.81-82, Holmesian Justice White dissented from the Page 773

Court's striking down legislative vetoes of executive actions. In Bowsher v. Synar,9 discussed at ß n.122, Justice White dissented from the Court's striking down provisions allowing the Comptroller General to determine what budget reductions were necessary to comply with the Gramm-Rudman budget bill. In Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise,10 discussed at ß 19.4.4 n.136, Justice White, joined by Chief Justice Rehnquist and instrumentalist Justice Marshall, dissented from the Court's decision to hold invalid a Board of Review composed of members of Congress.

At the other extreme from these views, the formalist preference for literal interpretation and bright- line rules suggests a strict separation of powers approach, without any balancing, as noted at ß Under such a view, there should be strict separation of powers based on the literal text of the Constitution, which provides in Article I, ß 1, "all legislative Powers herein granted" are vested in Congress; in Article II, ß 1, "the executive Power" is vested in the President; and in Article III, ß 1, the "judicial Power" is vested in "the Supreme Court and such inferior courts as Congress, from time to time, may establish." Applied to issues of executive power, this view has been described as promoting a "Unitary Executive" model of government, with few checks and balances on executive action,11 although that view can be challenged on structural, historical, practice, and precedent grounds.12 Justice Scalia has called for a strict separation of powers approach, dissenting in Mistretta v. United States, discussed at ß 19.2 nn.21-22, and dissenting in Morrison v. Olson, discussed at ß n.104.

ß 19 2 Congressional Delegation of Legislative Power to the President, Administrative Agencies, or Special Commissions

When Congress delegates legislative power to the President, administrative agencies, or special commissions, a separation of powers concern arises if Congress has delegated too much policy- making power from the legislative branch. To prevent this, the Court has required Congress to provide the delegated agent with congressionally developed standards or policies to guide application of the delegated power. This helps ensure that the ultimate policy choice is made by the legislature. Page 774

During the formalist era, this doctrine was applied in a relatively strict manner, with the Court requiring detailed congressional standards or policies. For example, in Schechter Poultry Corp. v. United States,13 the Court considered the constitutionality of that part of the Depression-era National Industrial Recovery Act which provided that the President was granted authority to approve or not various industry-adopted codes of fair labor practices, in this case the Code of Fair Competition for the Live Poultry Industry. The Act provided that as a condition of approval the President must find that the codes "impose no inequitable restrictions on admission to membership" and are not "designed to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them." In reviewing this Act, the Court noted that these restrictions "leave virtually untouched the field of policy," do not undertake "to prescribe rules of conduct...

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