Separation of Powers – Peterson – Fall 2011

Introduction

  • Formalist approach
  • Rules that regulate the behavior and powers of the branches are fixed at the time of Framing and do not vary over time
  • Text is determinate and can be clearly understood
  • Emphasizes separation of power between branches: Branches shouldn’t interfere with each other & the only checks/balances are already written in the constitution
  • Pessimistic about legislative motives—Congress should not have the power to alter constitutional power allocation
  • Functionalist approach
  • Constitution doesn’t create rules, it creates basic principles that may result in different rules over time as context changes
  • Language is indeterminate because Constitutional rules change over time
  • Constitution is subject to multiple interpretations
  • Founders wanted balanced branches, so rules might change
  • Checks and balances more important than separation of powers
  • Congress can tinker with the structure of government if need be
  • Power of each branch
  • 3 zones of executive power (J. Jackson)
  • Most authority with explicit statutory power
  • Intermediate authority (inherent power)
  • Least authority statute take away power
  • Generally, for statutory enhancements of power, the Court is more formalist
  • Generally, for statutory restrictions of power, the Court is more functionalist (Does statute prevent the branch from accomplishing its constitutional function?)

Executive / Legislative / Judicial
Statutory Authority / Congress can delegate, box can grow indefinitely / Congress passes statutes to give itself more authority
Limited by bicameralism and presentment / Limited by case or controversy
No statute / President’s inherent power: In Re Neagle / Appropriations power
Statutory Restriction / Congress passes statutes to limit the president’s power

The Executive and the Courts

  • Marbury v. Madison
  • Facts: Marbury filed writ of mandamus under original S.C. jurisdiction to compel Madison to deliver his commission (last minute Adams appt)
  • Madison’s Argument—court has no power to order executive to do something
  • Strict separation of power: there is no judicial power over executive
  • Problem with strict separation
  • Congress has appropriations power over executive
  • English common law: court could order king to do things
  • Court
  • Marbury has right to the commission b/c it is vested upon signing
  • Statute authorizes original mandamus in S.C.
  • Statute granting original jurisdiction is unconstitutional
  • Article 3 jurisdiction is a ceiling, not a floor for the S.C.
  • Congress can’t give S.C. more power than they would have under the constitution (no court explanation)
  • Jurisdiction of the federal court system should be tiered and original jurisdiction of S.C. is an exception to system
  • Trial courts authority checked by appellate courts
  • Case or controversy for primary jurisdiction
  • Courts have to follow precedent
  • Primary vs. Secondary vs. Tertiary discretion
  • Primary discretion—limited by rules
  • Secondary discretion—limited by appellate courts
  • Tertiary discretion—limited by juries
  • Courts have the power to review the constitutionality of statutes
  • Marshall asserted authority over the executive branch while not having to enforce it because the statute didn’t allow it—S.C. lacks jurisdiction
  • Executive branch is subject to what the court says
  • Court can hold executive in contempt of court and send marshals to imprison the president, but the executive has more guns
  • Congress can impeach the president, and if she resists, this is a coup
  • Marbury Dictum: Limitations on judicial power
  • Procedural constraints in Constitution
  • Case or controversy requirement (injury, proximate causation, remedy)
  • Marbury injured by not receiving commission and court can redress
  • Textual limitations
  • E.g. veto power is textually committed to President, court won’t step in
  • Practical limitations
  • E.g. Courts may be ill-equipped to decide who has priority where executive is trying to withhold confidential documents from Congress
  • Prudential limitations (political question doctrine)
  • Non-discretionary actions are reviewable
  • Internal restrictions—in power granting clause
  • E.g. can’t veto a year later, procedural restrictions
  • External restrictions
  • E.g. pardon in racist way is against 5th amendment
  • Is there someone with a concrete injury?
  • Discretionary political actions are non-reviewable political questions
  • E.g. veto, sensitive foreign affairs
  • Judicial review of separation of powers questions
  • War powers clause has mandatory power sharing to make both President and Congress accountable for war, should court intervene if President sends troops?
  • Court is anti-majoritarian branch of government
  • Result—legitimacy is tenuous, so it is prudentially important that court should stay out of cases where their legitimacy is unnecessarily questioned
  • Court should save power to protect individual liberties
  • Purpose of separation of powers
  • Preventing government from abusing authority to detriment of the people
  • Courts can enforce sep. of powers to protect the people
  • Branches have incentives to give away power to avoid accountability
  • Role of lawyer in executive branch (wire-tap legality hypothetical)
  • Self interested lawyer, the president’s advocate
  • Find a legal argument to allow the president to do something
  • President is your boss and could remove you, so you should care about his/her policy goals; political accountability—president represents people
  • Run risk of losing ability of OLC to issue credible decisions
  • Sound legal advice/independent lawyer
  • President wants to cover himself, and will be reluctant if OLC doesn’t ok
  • E.g. people resigned rather than firing special prosecutor during Watergate
  • Protecting president from himself—telling president what really is legal
  • If president wants to ensure a certain opinion:
  • Ask sympathetic attorney, potentially bypassing asst. attorney general
  • Ensure confidentiality/consult with interested agencies confidentially

The Executive and Congress

  • In Re Neagle
  • Facts: Neagle arrested for murder under CA law for killing Terry who assaulted a S.C. Justice
  • Court: Neagle acted within the law and can’t be guilty under CA law
  • Protection of judges, despite lack of specific statute, is part of president’s inherent authority/duty to “take care that laws be faithfully executed”
  • Inherent powers include explicit powers from constitution and implicit authority to go along w/grants of explicit authority
  • Power to protect federal officers must exist & executive has power to enforce the law and protect others to ensure laws are faithfully executed
  • A2S1 vests executive power in the President, but doesn’t say “all executive powers herein delegated” like A1S1 for Congress
  • Power to make sure laws are enforced is potentially sweeping
  • In Re Debs
  • Facts: Debs (union leader in Pullman strike) violated a gov’t injunction (without a statute) preventing him from talking to strikers
  • Court: Executive branch has the power to seek this injunction
  • Statutes requires gov’t to carry mail; to carry mail, need RRs; statutes allow gov’t to protect transport of mail; gov’t can get injunction preventing obstruction of commerce
  • Gov’t wanted injunction over arrest b/c jury would be pro-Debs
  • Debs seems clearly wrong—gov’t saying if they can’t get injunction, jury could prevent conviction; but, right to jury trial, nullification possibility is  on gov’t
  • Restrictions on inherent executive power: issues of law, policy, politics, and practicality
  • External restrictions: restrictions outside of power granting clauses
  • e.g. Takings clause (5th Amendment), 1st Amendment, etc…
  • Explicit adjacent powers: e.g. authority granted to another branch (Congress’s Article 1 appropriations power)
  • Implicit adjacent powers: e.g. Executive can’t raise money and spend it
  • Iran Contra—can’t sell weapons to get money without Congressional approval b/c Congress has appropriations power
  • Miscellaneous Receipts Act: money earned by gov’tgeneral treasury
  • Anti-deficiency Act prevents executive augmentation
  • Appropriations power has an implicit anti-augmentation power
  • U.S. v. Midwest Oil
  • Facts: President suspended oil claims in CA and WY, despite statute saying “all public lands w/oil are free and open” to prevent US from having to repurchase oil
  • President’s argument—executive power is so important that if Congress wants to restrict it, they have to make a clear statement
  • Congressional argument—want accountable legislature; inaction is less clear than a statute, hard to assume inaction means agreement w/president
  • Court: Congressional acquiescence in historic executive practice of withdrawing land makes president’s actions okay (implicit exception to statute)
  • Functionalist opinion—law must be interpreted practically
  • Ways Congress could possibly not acquiesce to executive practice
  • Pass a reinforcing statute (with risk of presidential veto)
  • Impeachment, concurrent resolution, testimony about compliance
  • Youngstown Sheet and Tube
  • Facts: President seized steel mills before strike b/c steel was essential in Korea
  • President notified Congress and Congress did nothing
  • Black’s opinion (Formalist)
  • Commander in chief power doesn’t extend to taking over private property
  • President has the obligation to conduct war, not legislate
  • Congress has the power to regulate labor disputes through law
  • “Take Care” power doesn’t give president the power to legislate
  • This case belongs in Box 2 or 5 b/c there is no statutory authority
  • Congress already specified a way to resolve labor disputes
  • Power to legislate doesn’t fit in box 2
  • But, nondelegation says line between executive and legislative powers is blurry, so explanation not great
  • Frankfurter’s opinion (Functionalist)
  • Distinguishes from Midwest Oil: no congressional acquiescence
  • President only did this 3X, Congress rejected conferring power
  • But, Midwest Oil deals w/statute, this deals w/constitution
  • Hypothetical of president taking military action w/o Congress over time
  • Frankfurter: In 1790, president couldn’t do this, but now he could b/c this power vests in commander in chief
  • Scalia: agrees b/c military is different (inconsistent w/originalist)
  • Congress has disincentive to protecting war power & acquiescence for political reasons is a problem
  • Pres.: signing statements avoid acquiescence in impingement on authority
  • Jackson’s opinion (Functionalist)
  • 3 categories of presidential authority
  • 1) W/express or implied Congressional authority
  • President acts with his rights + all Congress can delegate
  • 2) Concurrent authority w/o Congressional action or prohibition
  • President can use his inherent power (between box 2 & 5)
  • There’s zone of twilight where Pres. and Congress have concurrent authority and distribution is uncertain
  • Congressional inertia, indifferent, quiescence may change distribution of power
  • 3) Congress has restricted president (situation here)
  • Ask if restriction impinges on President’s ability to do job
  • President can only rely upon own constitution powers – Congressional powers over the matter
  • Congressional restriction of the president (box 23) requires a statute
  • Clear statement rule?
  • Legislative history?
  • Implied occupation of the field? Have that here
  • Congress set out 3 policies implying seizure is not allowed
  • President told where he could act, can imply where he can’t
  • Statutory restriction doesn’t impair president’s constitutional duties
  • Vesting clause—power is limited (don’t want George III)
  • Specific terms limit executive power (cut back on Neagle)
  • Commander in chief authority
  • Authority to support armies fails in box 5 with Congress
  • Take care clause—operates only as far as there is law
  • Possible Youngstown holdings
  • Narrow: President’s power to seize property can be restricted by statute
  • Broad: Neither take care not vesting clause grant president any power
  • This would overrule Neagle—only have Congressional laws
  • Intermediate: President’s inherent authority to seize property for military purposes must give way to Congress’s power to raise and support armies

Combining Powers in the Executive or in the Courts

  • Nondelegation Doctrine (functionalist test)
  • Concerns
  • Aggrandizement
  • Don’t want executor of laws making the lawspersonal rights violations, conflicts of interest, abuse of power
  • Political accountability issue (Box 5)
  • Schechter Poultry (1935): Congress can’t delegate power to make codes of “fair competition” to the industry w/ pres. approval
  • Nondelegation Doctrine is toothless
  • Delegation has not been struck down since Schechter Poultry in 1935
  • Congress can’t be an expert on all issues
  • Difficult for Congress to pass legislation, this is not efficient
  • Congress can’t fill in all the details for the entire federal government
  • Hard to draw line between what can and can’t be delegated
  • Terms “legislative” and “executive” are too vague
  • Wayman v. Southard: hard to say something is not executive power as executive implements a pieces of legislation
  • Limitations on delegation
  • Congress must put forth a standard for the agency (intelligible principle)
  • Yakus: intelligible principle upon which exec. can exercise discretion
  • Conditional legislation requiring presidential fact finding is okay
  • Congress can’t delegate war powers, all appropriations, specific clauses, line-item veto
  • No delegation to people outside the government (Schechter Poultry)
  • Mistretta v. U.S.
  • Facts: Sentencing Reform Act with policy statements has independent commission in judiciary set sentencing guidelines
  • Court
  • Sentencing Guidelines are constitutional, since Congress neither (1) delegated excessive legislative power to the commission nor (2) violated separation of powers principle by placing commission in the judicial branch
  • Sentencing historically shared by three branches
  • Scalia’s dissent:
  • Accountability problem—delegation is to an independent commission
  • Principles are intelligible and subject matter is sufficiently limited
  • Delegation problem—Congress is delegating strictly legislative functions
  • Sentencing commission not really in judiciary or executive
  • Congress can’t delegate legislative power, but can give other branches discretion in enforcing and judging the laws
  • Congress could’ve delegated this to a parole comm’n in executive
  • Analysis of Scalia’s opinion
  • Congress has not created other “JV Congresses”
  • Sentencing comm’n is unique—judges have historically had discretion
  • Few powerful interest groups are involved
  • Power shared in all three branches
  • Aggrandizement or diminished judicial authority (lose legitimacy)
  • Arguments for improper aggrandizement
  • Courts can make procedural rules, but this is purely substantive
  • Policy can only be make in context of case or controversy (A3S2)
  • Prevents judicial abuse of individual rights
  • Case or controversy has s: juries, appeals, precedent
  • Juries:  outside 3 branches of government
  • Appeals: limits secondary discretion
  • Correction by higher courts on law, not fact
  • Precedent: limits primary discretion
  • Arguments against improper aggrandizement
  • Judges are already writing regulations/deciding sentences
  • Judges make policy through decisions, why not prospective regs?
  • Comm’ners are not acting as judges, power not to whole judiciary
  • Potential diminution of Judiciary
  • Respect for judges could diminish if they make political decisions
  • But, here, judges are already making these decisions
  • DOJ says judges serving other duties is unconstitutional
  • Congress could not delegate this to S.C. b/c of case or controversy requirement
  • Need a ; courts make procedural rules—binding only on courts
  • Sentencing rules are clearly substantive

Congressional Aggrandizement

  • INS v. Chadha
  • Facts: Statute gives AG right to suspend deportation, but Congress reserved the right to reject the suspension (one-house veto)
  • Issue: appropriateness of executive arguing that a statute is unconstitutional
  • DOJ will defend the constitutionality of any statute unless:
  • No good faith argument because law is so clear
  • Statute treats on president’s constitutional prerogatives or statute violates separation of powers
  • Court:
  • When Congress acts legislatively, bicameralism and presentment
  • By rejecting deportation suspension, House is legislating alone
  • This is legislative action b/c it affects rights outside of legislature
  • Problem: Why can Congress delegate legislative power to executive?
  • White’s Dissent: (functionalist)
  • If legislation when House votes, why not legislation when AG approves?
  • Branches have agreed—both house and president must approve this
  • Problem: inaction is not action (Midwest Oil not good law)
  • Executive branch can still do its job well
  • Legislative veto is  on delegation of power to executive agency
  • Problem: Congressional aggrandizement, binding effect to inaction
  • Powell’s Concurrence:
  • This is a judicial/executive act, so it is inappropriate for Congress
  • Congress is not subject to any internal √s to prevent it from arbitrarily depriving Chadha of right to remain in the country
  • Congress shouldn’t decide rights of specific people b/c tyranny of shifting majority
  • Problem: Why can executive wield judicial power?
  • Peterson’s Opinion
  • Substantive laws must go through bicameralism and presentment
  • Easy to distinguish substance and procedure in legislative branch: substance affects the rights of people outside the legislature
  • This is legislative counterpart to case or controversy requirement
  • Constitution lists where Congress can act outside bicameralism & presentment (impeachment, appointments, treaties)
  • Problem: no similar restriction on executive branch
  • Congress delegates to executive—need balance of power
  • Potential solution—allow Congress to veto RM, not adjudications
  • Congressional control thru APA (notice, comment, responses, judicial review for rulemaking, etc..)
  • Procedural due process, 5th amendment
  • Fast track legislation—report and wait period for all legislative veto provisions found to be severable
  • Appropriations/political power
  • Demise of the legislative veto
  • 196 statutes have legislative veto provisions—executive adds signing statements
  • Unenforceable political deals don’t violate Chadha
  • E.g. Congress agreed w/president to fund contras in Nicaragua, but if a group in Congress decided funding was no longer useful, funding ends
  • Formalist approach in prohibiting the legislative veto
  • Rejects functionalist approach even through there aren’t procedural limitations on the president
  • Congress can control the rebalancing of the authority of the branches
  • Procedures, appropriations, non-mandatory legislative veto
  • Bowsher v. Synar
  • Facts: Comptroller General receives reports from directors and then reports his conclusions to the president under the Gramm-Rudman-Hollings Act
  • CG is an officer of Congress (GAO), removable for cause by Congress
  • Court: Law unconstitutional
  • Myers: Congress can’t reserve removal power of executive officer
  • Chadha: to permit Congressional officer to execute would permit L veto
  • CG is a member of the legislative branch
  • Congressional removal, control, general DC understanding
  • CG’s duties under the Act are executive
  • CG is exercising independent judgment and evaluation of reports
  • Steven’s concurrence (Peterson’s favorite)
  • Congress can’t act substantively thru delegation to lesser rep. of legislative
  • Congress can’t act substantively except thru bicameralism & presentment
  • White’s dissent
  • CG not controlled by Congress (removal only for cause w/pres. approval)
  • Executive branch’s ability to perform constitutional duties not impeded
  • MWAA v. Citizens
  • Facts: DC/VA/MD compact controls Dulles airport; Board w/9 members of Congress has power to veto compacts action
  • Court: Board is unconstitutional
  • No legislative action (veto of compact’s action) w/o bicameralism & p.
  • Congress vets itself or members w/executive or judicial power
  • Changing statute to requires board members to be frequent airport users, registered to veto elsewhere, & w/aviation experience not okay fix!
  • Congressional commissions
  • Congress can form investigative commissions (w/Congressmen and executive officers) to make recommendations to Congress and White House so long as they don’t act substantively

President’s Veto Authority