In recent cases, the Supreme Court has pronouncedly protected the Executive Branch, applying separation-of-powers principles to invalidate what it perceived to be congressional usurpation of executive power, but its mode of analysis has lately shifted seemingly to permit Congress a greater degree of discretion.44
44 Not that there have not been a few cases prior to the present period. See Myers v. United States, 272 U.S. 52 (1926). But a hallmark of previous disputes between President and Congress has been the use of political combat to resolve them, rather than a resort to the courts. The beginning of the present period was Buckley v. Valeo, 424 U.S. 1, 109-143 (1976).
Significant change in the position of the Executive Branch respecting its position on separation of powers may be discerned in two briefs of the Department of Justice’s Office of Legal Counsel, which may spell some measure of judicial modification of the formalist doctrine of separation and adoption of the functionalist approach to the doctrine.45 The two opinions withdraw from the Department’s earlier contention, following Buckley v. Valeo, that the execution of the laws is an executive function that may be carried out only by persons appointed pursuant to the appointments clause, thus precluding delegations to state and local officers and to private parties (as in qui tam actions), as well as to glosses on the take care clause and other provisions of the Constitution. Whether these memoranda signal long-term change depends on several factors, importantly on whether they are adhered to by subsequent administrations.
In striking down the congressional veto as circumventing Article I’s bicameralism and presentment requirements attending exercise of legislative power, the Court also suggested in INS v. Chadha46 that the particular provision in question, involving veto of the Attorney General’s decision to suspend deportation of an alien, in effect allowed Congress impermissible participation in execution of the laws.47 And in Bowsher v. Synar,48 the Court held that Congress had invalidly vested executive functions in a legislative branch official. Underlying both decisions was the premise, stated by Chief Justice Burger’s opinion of the Court in Chadha, that “the powers delegated to the three Branches are functionally identifiable,” distinct, and definable.49 In a “standing-to-sue” case, Justice Scalia for the Court denied that Congress could by statute confer standing on citizens not suffering particularized injuries to sue the Federal Government to compel it to carry out a duty imposed by Congress, arguing that to permit this course would be to allow Congress to divest the President of his obligation under the “take care” clause and to delegate the power to the judiciary.50 On the other hand, the Court in the independent counsel case, while acknowledging that the contested statute did restrict to some degree a constitutionally delegated function, law enforcement, upheld the law upon a flexible analysis that emphasized that neither the legislative nor the judicial branch had aggrandized its power and that the incursion into executive power did not impermissibly interfere with the President’s constitutionally assigned functions.51
45 Memorandum for John Schmidt, Associate Attorney General, from Assistant Attorney General Walter Dellinger, re: Constitutional Limitations on Federal Government Participation in Binding Arbitration (Sept. 7, 1995); Memorandum for the General Counsels of the Federal Government, from Assistant Attorney General Walter Dellinger, re: The Constitutional Separation of Powers Between the President and Congress (May 7, 1996). The principles laid down in the memoranda depart significantly from previous positions of the Department of Justice. For conflicting versions of the two approaches, see Constitutional Implications of the Chemical Weapons Convention: Hearings on the Constitution, Federalism, and Property Rights Before the Senate Judiciary Subcommittee, 104th Cong., 2d Sess. (1996), 11-26, 107-10 (Professor John C. Woo), 80-106 (Deputy Assistant Attorney General Richard L. Shiffrin).
46 462 U.S. 919 (1983).
47 Although Chief Justice Burger’s opinion of the Court described the veto decision as legislative in character, it also seemingly alluded to the executive nature of the decision to countermand the Attorney General’s application of delegated power to a particular individual. “Disagreement with the Attorney General’s decision on Chadha’s deportation . . . involves determinations of policy that Congress can implement in only one way .... Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.” 462 U.S. at 954-55. The Court’s uncertainty is explicitly spelled out in Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991).
48 478 U.S. 714 (1986).
49 462 U.S. at 951.
50 Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-78 (1992). Evidently, however, while Justices Kennedy and Souter joined this part of the opinion, id. at 579 (concurring in part and concurring in the judgment), they do not fully subscribe to the apparent full reach of Justice Scalia’s doctrinal position, leaving the position, if that be true, supported in full only by a plurality.
51 Morrison v. Olson, 487 U.S. 654 (l988). The opinion by Chief Justice Rehnquist was joined by seven of the eight participating Justices. Only Justice Scalia dissented. In Mistretta v. United States, 488 U.S. 361, 390-91 (1989), the Court, approving the placement of the Sentencing Commission in the judicial branch, denied that executive powers were diminished because of the historic judicial responsibility to determine what sentence to impose on a convicted offender. Earlier, in Young v. United States ex rel. Vuitton, 48l U.S. 787 (l987), the Court, in upholding the power of federal judges to appoint private counsel to prosecute contempt of court actions, rejected the assertion that the judiciary usurped executive power in appointing such counsel.
At issue in Synar were the responsibilities vested in the Comptroller General by the “Gramm-Rudman-Hollings” Deficit Control Act,52 which set maximum deficit amounts for federal spending for fiscal years 1986 through 1991, and which directed across-the-board cuts in spending when projected deficits would exceed the target deficits. The Comptroller was to prepare a report for each fiscal year containing detailed estimates of projected federal revenues and expenditures, and specifying the reductions, if any, necessary to meet the statutory target. The President was required to implement the reductions specified in the Comptroller’s report. The Court viewed these functions of the Comptroller “as plainly entailing execution of the law in constitutional terms. Interpreting a law ... to implement the legislative mandate is the very essence of ‘execution’ of the law,” especially where “exercise [of] judgment” is called for, and where the President is required to implement the interpretation.53 Because Congress by earlier enactment had retained authority to remove the Comptroller General from office, the Court held, executive powers may not be delegated to him. “By placing the responsibility for execution of the [Act] in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function.”54
52 The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. 99-177, 99 Stat. 1038.
53 478 U.S. at 732-33.
54 478 U.S. at 734.
The Court in Chadha and Synar ignored or rejected assertions that its formalistic approach to separation of powers may bring into question the validity of delegations of legislative authority to the modern administrative state, sometimes called the “fourth branch.” As Justice White asserted in dissent in Chadha, “by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments .... There is no question but that agency rulemaking is lawmaking in any functional or realistic sense of the term.”55 Moreover, Justice White noted, “rules and adjudications by the agencies meet the Court’s own definition of legislative action.”56 Justice Stevens, concurring in Synar, sounded the same chord in suggesting that the Court’s holding should not depend on classification of “chameleon-like” powers as executive, legislative, or judicial.57 The Court answered these assertions on two levels: that the bicameral protection “is not necessary” when legislative power has been delegated to another branch confined to implementing statutory standards set by Congress, and that “the Constitution does not so require.”58 In the same context, the Court acknowledged without disapproval that it had described some agency action as resembling lawmaking.59 Thus Chadha may not be read as requiring that all “legislative power” as the Court defined it must be exercised by Congress, and Synar may not be read as requiring that all “executive power” as the Court defined it must be exercised by the executive. A more limited reading is that when Congress elects to exercise legislative power itself rather than delegate it, it must follow the prescribed bicameralism and presentment procedures, and when Congress elects to delegate legislative power or assign executive functions to the executive branch, it may not control exercise of those functions by itself exercising removal (or appointment) powers.
55 462 U.S. at 985-86.
56 462 U.S. at 989.
57 478 U.S. at 736, 750.
58 462 U.S. at 953 n.16.
59 Id.
A more flexible approach was followed in the independent counsel case. Here, there was no doubt that the statute limited the President’s law enforcement powers. Upon a determination by the Attorney General that reasonable grounds exist for investigation or prosecution of certain high ranking government officials, he must notify a special, Article III court which appoints a special counsel. The counsel is assured full power and independent authority to investigate and, if warranted, to prosecute. Such counsel may be removed from office by the Attorney General only for cause as prescribed in the statute.60 The independent counsel was assuredly more free from executive supervision than other federal prosecutors. Instead of striking down the law, however, the Court undertook a careful assessment of the degree to which executive power was invaded and the degree to which the President retained sufficient powers to carry out his constitutionally assigned duties. Also considered by the Court was the issue whether in enacting the statute Congress had attempted to aggrandize itself or had attempted to enlarge the judicial power at the expense of the executive.61
In the course of deciding that the President’s action in approving the closure of a military base, pursuant to statutory authority, was not subject to judicial review, the Court enunciated a principle that may mean a great deal, constitutionally speaking, or that may not mean much of anything.62 The lower court had held that, while review of presidential decisions on statutory grounds might be precluded, his decisions were reviewable for constitutionality; in that court’s view, whenever the President acts in excess of his statutory authority, he also violates the constitutional separation-of-powers doctrine. The Supreme Court found this analysis flawed. “Our cases do not support the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution. On the contrary, we have often distinguished between claims of constitutional violations and claims that an official has acted in excess of his statutory authority.”63 Thus, the Court drew a distinction between executive action undertaken without even the purported warrant of statutory authorization and executive action in excess of statutory authority. The former may violate separation of powers, while the latter will not.64
60 Pub. L. 95-52l, title VI, 92 Stat. l867, as amended by Pub. L. 97-409, 96 Stat. 2039, and Pub. L. 100-191, 101 Stat. 1293, 28 U.S.C. §§ 49, 591 et seq.
61 487 U.S. at 693-96. See also Mistretta v. United States, 488 U.S. 361, 380-84, 390-91, 408-11 (1989).
62 Dalton v. Specter, 511 U.S. 462 (1994).
63 511 U.S. at 472.
64 See The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139, 300-10 (1994).
Doctrinally, the distinction is important and subject to unfortunate application.65 Whether the brief, unilluminating discussion in Dalton will bear fruit in constitutional jurisprudence, however, is problematic.
65 “As a matter of constitutional logic, the executive branch must have some warrant, either statutory or constitutional, for its actions. The source of all federal governmental authority is the Constitution and, because the Constitution contemplates that Congress may delegate a measure of its power to officials in the executive branch, statutes. The principle of separation of powers is a direct consequence of this scheme. Absent statutory authorization, it is unlawful for the President to exercise the powers of the other branches because the Constitution does not vest those powers in the President. The absence of statutory authorization is not merely a statutory defect; it is a constitutional defect as well.” Id. at 305-06 (footnote citations omitted).
Last modified: June 9, 2014