Constitutional Law I

Separation of Powers - I

Oct. 26, 2004

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Introduction to Separation of Powers

3 co-equal branches of government Art. I Congress – Makes Law Art. II Exec. - Executes (administers)

the law Art. III Judicial - Interprets and applies the

lawWhy this “separation”? Enhances liberty Checks and balances Stability in government

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Theoretical & Historical Origins

Marchamont Nedham, Excellencie of a Free-State (1656) An Errour in Policy hath been this, permitting of the Legis-

lative and Executive Powers of a State, to rest in one and the same hands and persons. By the Legislative Power, we mean the Power of making, altering, or repealing Laws.

By the Executive Power, we mean that Power which is derived from the other, for the administration of Government, in the Execution of those Laws. In the keeping of these two Powers distinct … so that they may never meet in one … consists the safety of a state.

The Reason is evident; because if the Law-makers should be also the constant Administrators and Dispencers of Law and Justice, then (by consequence) the People would be left without Remedy, in case of Injustice.”

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Theoretical & Historical Origins

John Locke, Second Treatise of Gov’t (1689)

“The Legislative Power is that which has a right to direct how the Force of the Commonwealth shall be imploy'd for preserving the Community and the Members of it [but] the same Persons who have the Power of making Laws, [should not] have also in their hands the power to exe-cute them, whereby they may exempt them-selves from Obedience to the Laws they make

'tis necessary there should be a Power always in being, which should see to the Execution of the Laws that are made, and remain in force. And thus the Legislative and Executive Power come often to be separated.”

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Theoretical & Historical Origins

Charles Louis de Secondat, Baron de la Brede et de Motesquieu, Spirit of the Laws (1748) "there can be no liberty where the legislative and

executive powers are united in the same person, or body of magistrates," or "if the power of judging be not separated from the legislative and executive powers"

Check outhttp://www.

separationofpowers.net/

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Influencing the Constitution

John Adams, Thoughts on Gov’t (1776) “A representation of the people in one assembly being

obtained, a question arises whether all the powers of government, legislative, executive, and judicial, shall be left in this body? I think a people cannot be long free, nor ever happy, whose government is in one Assembly.”

Madison, Records of the Federal Convention (1840) “Mr. Dickenson went into a discourse of some length, the

sum of which was, that the Legislative, Executive, & Judiciary departments ought to be made as independt. as possible … One source of stability is the double branch of the Legislature. The division of the Country into distinct States formed the other principal source of stability.”

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Influencing the Constitution

Madison, Federalist 47 (1788) “No political truth is certainly of greater

intrinsic value or is stamped with the authority of more enlightened patrons of liberty than this: 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.”

However, the constitution is “fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments”

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Themes in SoPIncomplete separation The constitution is full of instances where a

power is shared between 2 branchesEncroachment A power constitutionally assigned to one

branch alone may not be exercised by another Interference One branch may not obstruct another in the

performance of its constitutional powersFormalism Form must be observed, esp. by Congress

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SoP Matrix

Congress

President

Federal Courts

Legislative

Strict Formalism

Flexible & Functional

Strict in theory; loose in practice

Executive Forbidden Anything goes

Rare

Judicial Forbidden Generous Nominally strict (justiciability stds)

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Art. II – Executive PowerSources of Executive Power Art. II

§ 1, ¶ 1: “The executive Power shall be vested in a President of the United States of America.”

§ 2, ¶ 1: “The President shall be Commander in Chief .. have Power to grant Reprieves & Pardons ..

§ 2, ¶ 2: make treaties and appointments … § 2, ¶ 3: “Power to fill up all Vacancies …” § 2, ¶ 4: recommend laws to Congress; “receive

ambassadors,” and “shall take Care that the Laws take Care that the Laws be faithfully executedbe faithfully executed.”

This power depends upon legislation; therefore congress nominally controls it

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Art. II – Executive PowerSources of Executive Power Art. II Congress (delegated power; i.e.,

legislation needing implementation)

Inherent power? What if the constitution omits

something important, like protecting the US from immin- ent invasion or insurrection?

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Youngstown Steel v. Sawyer (1952)

What power does Truman exercise here? Executive power?

“take care that the laws be faithfully executed” What law is the President executing?

No statute authorizing seizure in strike situation Congress rejected this in Taft-Hartley Act (1947) But authorized courts to issue temporary injunctions

Commander-in-chief? Broad interpretation: anything related to military Narrow interpretation: theater of war operations

Example: Lincoln’s emancipation proclamation Domestic actions and foreign wars?

What limits during an era of permanent war?

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Youngstown Steel v. Sawyer (1952)

What power does Truman exercise here? Inherent? Extra-constitutional powers?

Federal gov’t enjoys power of national sovereignty (incl. defense) whether included in const. or not.

Difference between federalism and SoP Attributes of national sovereignty defaults to US no SoP default rules

National defense Teddy Roosevelt: "The president is steward of the

people. It was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the const. or by the law.”

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Youngstown Steel v. Sawyer (1952)

Closer examination of war powerwar power Congress has power to declare war (Art I, §8, ¶9)

i.e., the power to make policy As C-I-C, President is “first general”

i.e., the power to execute congress’ war policy and to direct war operations themselves

Was Korean War a “declared war”? Would it matter if it were?

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Justice Black’s Strict Approach

Unless Truman’s action is found within his Article II powers, it is unconstitutional

Executive Power this is not equivalent to King’s royal prerogative not an independent grant of power

Take Care there must first be a law passed by congress the seizure was itself legislative in character as can

be seen by its preamble, setting forth policy also, seizure commits US to payment of

compensationC-I-C

domestic effects not within C-I-C powers

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Douglas' Cautionary Approach

Emergency does not create power; it only provides an occasion for use of power SoP adopted not to promote efficiency,

but to use the inevitable friction to safeguard liberty

Seizure by President ties Congress's hand on implementation of policy Commits the US to payment of

compensation

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Frankfurter’s Flexible Approach

Const provides framework, not a rigid code 3 branches are interacting, not disjointed Dynamic interpretation of the constitution

Const. law is not "confined to the words of the Const., disregarding the gloss which life has written upon them."

Power may accrete from congress to president over time as former acquiesces in unilateral action almost a “common law” version of the constitution but can be overridden by specific congressional action

reclaiming its delegated authority which is what happened in this case because congress had

specifically denied Truman authority to seize factories Vinson dissent sees no specific prohibition on Pres. Action

Assent seen from cong'l appropriations.

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Jackson’s Structured ApproachSoP is misnomer; branches act in concert separateness, but interdependence autonomy, but reciprocityInteraction between Congress & President

1. Congress authorizes, triggering executive power President possesses all his own powers,

plus Any power congress has validly delegated

to him2. Congress remains silent

President possesses express & implied powers those stated in §2 plus those he shares with

congress3. Congress rejects presidential power

Pres has only Art II power, minus shared powers those that congress may not take away from him

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Jackson’s 3-Zone test endures

Zone 1: Approval President acts w/ congressional authority

Presidential action is invalid only if federal gov’t as a whole lacks power in this area (federalism)

Zone 2: Silence (twilight zone) Congress neither approves nor disapproves

Balance need for unilateral presidential action against damage to const'l rights and structure

other “imperatives” and “imponderables” of eventsZone 3: Disapproval President acts despite congress’ disapproval

Valid only if w/in Art. II (or approved inherent power)

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Jackson's eloquy on SoP"With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations."

Robert Jackson was chosen by President Harry S Truman in 1945 to be the Chief Prosecutor for the United States at Nuremburg

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Inherent Power: Executive Privilege

The demand for executive informationA 2-fold Separation of Powers problem Judicial inquiry into executive actions

could interfere with performance of const'l duties

Executive refusal to provide evidence could interfere with judicial (or legislative) functions.

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United States v. Nixon (1974)

Subpoena to President to turn over tapes for use in criminal trialJusticiability (political question) Is there a textually demonstrable constitutional

commitment of the question (whether executive privilege applies) to the President? Does President have power to decide this issue Does he have discretion (final decisionmaking power)

If so, then the President could direct the action of the Special Prosecutor on this issue So-called "intra-branch dispute"

If not, Court must decide the issue - Marbury

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United States v. Nixon (1974)

Executive Privilege on the merits Absolute (applies in all cases) Qualified (applies in some cases – including here)Absolute Privilege Assures confidentiality of exec. Communications Assures independence of separate branchesQualified Privilege Need for confidentiality might occassionally

outweigh 6th Amd. and judicial right to evidence Balance can be accommodated in camera

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United States v. Nixon (1974)

Should Nixon have Qualified Privilege here? "Generalized" need for confidentiality, not

national security or diplomatic secrets Will presidential advisors withhold advice (thereby

impeding executive functions) without confidentiality Balance against "fair administration of justice"

What function is the S.Ct. performing here? Deciding whether const. provides privilege? Making common law?Privilege vs. Immunity Evidence vs. Liability

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Cheney v. Dist.Ct. (2004)Claim: energy task force failed to comply with FACA open meeting and disclosure req’s Exclusive fed employee committes are exempt

Alleged: oil industry lobbyists were de facto members

District Court FACA could be applied against VP Rejected bare SoP defense Allowed limited discovery

Normally non-appealable order

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Cheney v. Dist.Ct. (2004)Court of Appeals Rejects Mandamus (extraordinary writ)

Not an “extraordinary case” President can invoke Exec. Privilege. What result?

Supreme Court This is an extraordinary case (based on SoP)

Interference with Const’l Duties? Balance in favor of disclosure less than in Nixon

Statutory vs. constitutional rights at stake Remand to Ct.Appeals

Consider legal issues before deciding mandamus Consider “overbreadth” of discovery requests?

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Excessive ComplicityCan congress give too much power to Pres? Per Jackson, Congress enlarges executive

power by delegating authority (Zone 1) Per Frankfurter "gloss," power accrets to

Pres through congressional inaction and acquiesence

Any limits on the power that congress can delegate?

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Clinton v. New York (1998)Line Item Veto Act 2 U.S.C. § 691: the President may, with

respect to any bill or joint resolution that has been signed into law pursuant to Article I, section 7, cancel in whole--

§ 691(b): Cancellation becomes “null & void” if overriden by Disapproval Bill

(1) any dollar amount of discretionary budget authority;

(2) any item of new direct spending; or

(3) any limited tax benefit;

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Clinton v. New York (1998)Relevant Constitutional Provisions Art. I, § 8, ¶ 1: "The Congress shall

have Power to … pay the Debts and provide for the common Defence and general Welfare"

Art. I, § 9, ¶ 7: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law…“

Art. I, § 7, ¶ 2: “Every Bill which shall have passed the House … and the Senate, shall, before it becomes a Law, be presented to the President …”

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Clinton v. New York (1998)Cancelled appropriations Bal. Budget Act of 1997: $2.6B medicare funds to NY Taxpayer Relief Act of 1997: corporate tax benefitJustifications for Line Item Veto LIV is merely a delegation of power to Executive

to decline to spend (as President sees fit) valid only pursuant to “prescribed standard” (cong. policy) President may have impoundment power (Train v. NYC):

LIV is simply package of separate spending bills each of which President could have vetoed

reality of budget process is mutuality / reciprocity practicality not a concern - Court employs formalism

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Clinton v. New York (1998) LIV violates Presentment Clause President has amended two

Acts of Congress by repealing portion of each.

Cancellation not the same as "return" of a bill Return (regular veto)

prevents a bill from becoming law

Here, cancellation effective only after bill becomes law

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SoP Principles in LIVStrict Formalism idealized vision of political process (Kennedy) resurrects non-delegation doctrine

SoP not violated in traditional manner LIV is practical mechanism for complex

spending Jackson in Youngstown:

Doesn’t usurp or aggrandize any branch’s powers