Judicial Enforcement

The difficulty for the Court in policing the separation of powers lies in its efforts to both maintain the theoretical separation of branches while accommodating the practical need for some intermixture of governmental functions.1 Further, since the power of the Court itself is subject to the dictates of the doctrine, the role of the Supreme Court has been problematic at best. In fact, throughout much of our history, most notable political disputes over separation of power arose between the elected “political branches” and were resolved without judicial intervention. It is only in recent decades that cases involving the doctrine have been regularly decided by the Court. For many years, judicial construction of the doctrine only arose in relation to particular clauses of the Constitution. For instance, the nondelegation doctrine&emdash;that Congress may not delegate its Article I legislative authority&emdash;was from the beginning suffused with a separation-of-powers premise.10 However, the almost immediate demise of judicial enforcement of the doctrine was a reflection of the Court&#31 ;s inability to give any meaningful content to its separation of powers concerns.11 On the other hand, the Court has periodically taken a strong protective position on behalf of the President&#31 ;s powers, but such posture has been maintained with only varying degrees of success.4

More about Judicial Enforcement

Following this lengthy period of relative inattention to separation of powers issues, the Court since 11 76 13 has relied on the doctrine in numerous cases, with the result being a substantial curtailing of congressional discretion to structure the National Government. In short order, the Court found constitutional barriers to: a congressional scheme to provide for automatic deficit-reduction based on the critical involvement of an officer with significant legislative ties; 14 the practice set out in more than 200 laws of allowing a congressional veto of executive actions; 15 and the vesting of broad judicial powers to handle bankruptcy cases in officers not possessing security of tenure and salary.8 On the other hand, the Court upheld the highly debated establishment by Congress of a process by which independent special prosecutors could be appointed to investigate and prosecute cases of alleged corruption in the Executive Branch. This latter opinion presaged a judicial approach more accepting of the blending of governmental functions at the federal level.17

Judicial Enforcement: Developments

Important as the results were in this series of cases, it was the development of two separate and inconsistent analytical approaches that has occasioned the greatest amount of commentary. The existence of the two approaches, either of which can apparently be employed at the discretion of the Justices, makes it difficult to predict the outcomes of cases involving alternative fashions of implementing governmental policy. Historically, it appears that the Court most often uses a more strict analysis in cases in which infringements of executive powers are alleged and a less strict analysis when the powers of the other two branches are concerned. The special prosecutor decision, however, followed by a decision sustaining the appointment of judges to the United States Sentencing Commission, may ultimately signal the adoption of the less strict analysis for all separation of power cases or it may turn out to be but an exception to the Court&#31 ;s dual approach.10

Other Aspects

Although the two analytical approaches have been characterized in various ways, the names generally attached to them have been “formalist” (applied to the more strict line of cases), and “functional” (applied to the less strict). The formalist approach emphasizes the necessity of maintaining three distinct branches of government by drawing bright lines demarcating them and distinguishing amongst them based on their respective roles.11 The functional approach emphasizes the core functions of each branch and asks whether the challenged action threatens the essential attributes of such branch&#31 ;s functions. Under this approach, there is considerable flexibility afforded the moving branch&emdash;usually Congress acting to make structural or institutional change&emdash;if there is little significant risk of impairment of a core function or if there is a compelling reason for the action.20

Other Issues

In INS v. Chadha the Court used the formalist approach to invalidate a legislative veto device by which Congress could set aside a statutorily authorized suspension by the Attorney General of the deportation of an alien. Central to the decision were two conceptual premises. First, the action Congress had taken was found to be legislative&emdash;because it had the purpose and effect of altering the legal rights, duties, and relations of persons outside the Legislative Branch&emdash;mandating that the Congress comply with the bicameralism and presentment requirements of the Constitution.13 Second, the Attorney General was performing an executive function in implementing the delegation from Congress, so that the legislative veto was an impermissible interference in the execution of the laws. The Court noted that, rather than using a veto, Congress could act only by legislating, thus changing the terms of its delegation.22 Then, in Bowsher v. Synar, the Court held that Congress could not vest even part of the execution of the laws in an officer, the Comptroller General, who was subject to removal by Congress, because to do so would enable Congress to play a role in the execution of the laws. Again, Congress could act only by passing other laws.23

On that same day that Bowsher was decided through a formalist analysis, however, the Court in CFTC v. Schor 24 used the less strict, functional approach in upholding the power of a regulatory agency to adjudicate a state common-law issue. Of even more concern was that such power had previously been denied to a non- Article III bankruptcy court in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., a formalist plurality opinion with a limiting concurrence.25 Sustaining the agency&#31 ;s power, the Court in Schor emphasized “the principle that &#31 ;practical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III.&#31 ; ” 26 It further held that, in evaluating such a separation of powers challenge, the Court had to consider the extent to which the “essential attributes of judicial power” were reserved to Article III courts. Conversely, the Court had to evaluate the extent to which the non-Article III entity exercised the jurisdiction and powers normally vested only in Article III courts; the origin and importance of the rights to be adjudicated; and the concerns that drove Congress to depart from the requirements of Article III.19 Bowsher, the Court said, was not contrary, because, “[u]nlike Bowsher, this case raises no question of the aggrandizement of congressional power at the expense of a coordinate branch.”28

The test was a balancing one&emdash;whether Congress had impermissibly undermined the role of another branch without appreciable expansion of its own power. Although the Court has never directly indicated its standards for choosing one analysis over the other, it has implied that the formalist approach was proper when the Constitution clearly committed a function or duty to a particular branch and the functional approach was proper when the constitutional text was indeterminate and a decision must be made on the basis of the likelihood of impairment of the essential powers of a branch. Still, the overall result has been to offer a strenuous protection of executive powers and a concomitant relaxed view of incursions into the powers of the other branches. It was thus a surprise when, in Morrison v. Olson, the independent counsel case, the Court, again without stating why it chose that analysis, used the functional standard to sustain the creation of the independent counsel and that officer&#31 ;s exercise of prosecutorial authority 21

The independent-counsel statute, the Court emphasized, was not an attempt by Congress to increase its own power at the expense of the executive nor did it constitute a judicial usurpation of executive power. Moreover, the Court stated, the law did not “impermissibly undermine” the powers of the Executive Branch nor did it “disrupt the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions.” 30 The Court acknowledged that the statute undeniably reduced executive control over what it had previously identified as a core executive function&emdash;the execution of the laws through criminal prosecution&emdash;through its appointment provisions and its limitation of removal to a “good cause” standard. The Court nonetheless noted the circumscribed nature of the reduction, the discretion of the Attorney General to initiate appointment, the limited jurisdiction of the counsel, and the power of the Attorney General to ensure that the laws are faithfully executed by the counsel. This balancing, the Court thought, left the President with sufficient control to ensure that he is able to perform his constitutionally assigned functions.

A notably more pragmatic, functional analysis suffused the opinion of the Court when it upheld the constitutionality of the Sentencing Commission in Mistretta v. United States.23 Charged with promulgating guidelines binding on federal judges in sentencing convicted offenders, the seven-member Commission, three members of which had to be Article III judges, was made an independent entity in the judicial branch. The President appointed all seven members, choosing the judges from a list compiled by the Judicial Conference, and he could remove from the Commission any member for cause. According to the Court, its separation-of-powers jurisprudence is always animated by the concerns of encroachment and aggrandizement. “Accordingly, we have not hesitated to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch.” 32 Thus, to each of the discrete questions, the placement of the Commission, the appointment of the members, especially the service of federal judges, and the removal power, the Court carefully analyzed whether one branch had been given power it could not exercise or had enlarged its powers impermissibly and whether any branch would have its institutional integrity threatened by the structural arrangement.

Although it is possible, even likely, that Morrison and Mistretta represent a decision by the Court to adopt the functional analysis for all separation-of-powers cases, the history of adjudication since 11 76 and the shift of approach between Myers and Humphrey&#31 ;s Executor suggest caution. Recurrences of the formalist approach have been noted. Additional decisions must be forthcoming before it can be decided that the Court has finally settled on the functional approach.

Resources

References

This text about Judicial Enforcement is based on The Constitution of the United States of America: Analysis and Interpretation, published by the U.S. Government Printing Office.

[Footnote 1] “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Justice Jackson concurring).

[Footnote 2] $$10 E.g., Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42 (1825).

[Footnote 3] $$11 See Mistretta v. United States, 488 U.S. 361, 415-16 (1989) (Justice Scalia dissenting).

[Footnote 4] The principal example is Myers v. United States, 272 U.S. 52 (1926), written by Chief Justice Taft, himself a former President. The breadth of the holding was modified in considerable degree in Humphrey's Executor v. United States, 295 U.S. 602 (1935), and the premise of the decision itself was recast and largely softened in Morrison v. Olson, 487 U.S. 654 (1988).

[Footnote 5] $$13 Beginning with Buckley v. Valeo, 424 U.S. 1, 109-43 (1976), a relatively easy case, in which Congress had attempted to reserve to itself the power to appoint certain officers charged with enforcement of a law.

[Footnote 6] $$14 Bowsher v. Synar, 478 U.S. 714 (1986).

[Footnote 7] $$15 INS v. Chadha, 462 U.S. 919 (1983).

[Footnote 8] Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).

[Footnote 9] $$17 Morrison v. Olson, 487 U.S. 654 (1988). See also Mistretta v. United States, 488 U.S. 361 (1989).

[Footnote 10] The tenor of a later case, Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Airport Noise, 501 U.S. 252 (1991), was decidedly formalistic, but it involved a factual situation and a doctrinal predicate easily rationalized by the principles of Morrison and Mistretta, aggrandizement of its powers by Congress. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989), reasserted the fundamental status of Marathon, again in a bankruptcy courts context, although the issue was the right to a jury trial under the Seventh Amendment rather than strictly speaking a separation-of-powers question. Freytag v. Commissioner, 501 U.S. 868 (1991), pursued a straightforward appointments-clause analysis, informed by a separationof- powers analysis but not governed by it. Finally, in Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 467 (1989) (concurring), Justice Kennedy would have followed the formalist approach, but he explicitly grounded it on the distinction between an express constitutional vesting of power as against implicit vestings. Separately, the Court has for some time viewed the standing requirement for access to judicial review as reflecting a separation-of-powers component&emdash;confining the courts to their proper sphere – Allen v. Wright, 468 U.S. 737, 752 (1984), but that view seemed largely superfluous to the conceptualization of standing rules. However, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992), the Court imported the take-care clause, obligating the President to see to the faithful execution of the laws, into standing analysis, creating a substantial barrier to congressional decisions to provide for judicial review of executive actions. It is not at all clear, however, that the effort, by Justice Scalia, enjoys the support of a majority of the Court. Id. at 579-81 (Justices Kennedy and Souter concurring). The cited cases seem to demonstrate that a strongly formalistic wing of the Court continues to exist.

[Footnote 11] $$19 “The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power . . . must be resisted. Although not 'hermetically' sealed from one another, the powers delegated to the three Branches are functionally identifiable.” INS v. Chadha, 462 U.S. 919, 951 (1983). See id. at 944-51; Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64-66 (1982) (plurality opinion); Bowsher v. Synar, 478 U.S. 714, 721-727 (1986).

[Footnote 12] $$20 CFTC v. Schor, 478 U.S. 833 (1986); Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 587, 589-93 (1985). The Court had first formulated this analysis in cases challenging alleged infringements on presidential powers, United States v. Nixon, 418 U.S. 683, 713 (1974); Nixon v. Administrator of General Services, 433 U.S. 425, 442-43 (1977), but it had subsequently turned to the more strict test. Schor and Thomas both involved provisions challenged as infringing judicial powers.

[Footnote 13] 462 U.S. at 952.

[Footnote 14] $$22 462 U.S. at 952.

[Footnote 15] $$23 478 U.S. at 726-727.

[Footnote 16] $$24 478 U.S. 833 (1986)

[Footnote 17] $$25 Although the agency in Schor was an independent regulatory commission and the bankruptcy court in Northern Pipeline was either an Article I court or an adjunct to an Article III court, the characterization of the entity is irrelevant and, in fact, the Court made nothing of the difference. The issue in each case was whether the judicial power of the United States could be conferred on an entity that was not an Article III court.

[Footnote 18] $$26 478 U.S.at 848 (quoting Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 587 (1985)).

[Footnote 19] Schor, 478 U.S. at 851.

[Footnote 20] $$28 478 U.S. at 856.

[Footnote 21] $$29 487 U.S. 654 (1988). To be sure, the Appointments Clause (Article II, § 2) specifically provides that Congress may vest in the courts the power to appoint inferior officers, 487 U.S. at 670-677),, making possible the contention that, unlike Chadha and Bowsher, Morrison is a textual commitment case. But the Court's separate evaluation of the separation of powers issue does not appear to turn on that distinction. Id. at 685-96. Nevertheless, the existence of this possible distinction should make one wary about lightly reading Morrison as a rejection of formalism when executive powers are litigated.

[Footnote 22] $$30 487 U.S. at 695 (quoting, respectively, Schor, 478 U.S. at 856, and Nixon v. Administrator of General Services, 433 U.S. at 443).

[Footnote 23] 488 U.S. 361 (1989). Significantly, the Court acknowledged reservations with respect to the placement of the Commission as an independent entity in the judicial branch. Id. at 384, 397, 407-08. As in Morrison, Justice Scalia was the lone dissenter, arguing for a fairly rigorous application of separation-of-powers principles. Id. at 413, 422-27.

[Footnote 24] $$32 488 U.S. at 382.

Judicial Enforcement

Judicial Enforcement