Week 2 separation of power

8/13/2019 Week 2 separation of power

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Constitutional Law I

Separation of Powers - I

Oct. 26, 2004


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Fall, 2004 Con Law I - Manheim 2

Introduction to Separation of Powers

3 co-equal branches of government

Art. I CongressMakes Law

Art. II Exec. - Executes (administers) the law

Art. III Judicial - Interprets and applies the law

Why 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 andthe same hands and persons. By the Legislative Power, wemean the Power of making, altering, or repealing Laws.

By the Executive Power, we mean that Power which isderived from the other, for the administration ofGovernment, in the Execution of those Laws. In thekeeping of these two Powers distinct so that they maynever meet in one consists the safety of a state.

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


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John Locke, Second Treatise ofGovt (1689) The LegislativePower is that which has a right

to directhow the Force of the Commonwealthshall be imploy'd for preserving the Community

and the Members of it [but] the same Personswho have the Power of making Laws, [shouldnot] 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 alwaysin being,which should see to the Executionofthe Laws that are made, and remain in force.And thus the Legislativeand Executive Powercome often to be separated.


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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, orbody of magistrates," or "if the power of judging be not

separated from the legislative and executive powers"

Check out

http://www.separation

ofpowers.net/
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Influencing the Constitution

John Adams, Thoughts on Govt (1776) A representation of the people in one assembly being

obtained, a question arises whether all the powers ofgovernment, legislative, executive, and judicial, shall beleft 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. aspossible One source of stability is the double branch ofthe Legislature. The division of the Country into distinctStates formed the other principal source of stability.


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Influencing the Constitution

Madison, Federalist47 (1788) No political truth is certainly of greater intrinsic value

or is stamped with the authority of more enlightenedpatrons of liberty than this: the accumulation of allpowers legislative, executive and judiciary in the

same hands, whether of one, a few or many, andwhether hereditary, self appointed, or elective, mayjustly be pronounced the very definition of tyranny.

However, the constitution is fully aware of the

impossibility and inexpediency of avoiding anymixture whatever of these departments


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Themes in SoP

Incomplete separation The constitution is full of instances where a

power is shared between 2 branches

EncroachmentA power constitutionally assigned to one branch

alone may not be exercised by another

Interference

One branch may not obstruct another in theperformance of its constitutional powers

Formalism Form must be observed, esp. by Congress


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SoP Matrix

Congress President Federal Courts

Legislative StrictFormalism Flexible &Functional Strict in theory;loose in practice

Executive Forbidden Anythinggoes

Rare

Judicial Forbidden Generous Nominally strict(justiciability stds)


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Art. IIExecutive Power

Sources 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 inChief .. 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; receiveambassadors, and shall take Care that the Lawsbe faithfully executed.

This power depends upon legislation;

therefore congress nominally controls it


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Art. IIExecutive Power

Sources of Executive Power

Art. II

Congress (delegated power; i.e.,legislation needing implementation)

Inherent power?What if the constitution omits

something important, likeprotecting the US from immin-

ent invasion or insurrection?


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Fall, 2004 Con Law I - Manheim 12y


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Fall, 2004 Con Law I - Manheim 14Radio address
http://www.trumanlibrary.org/audio/62_108_1.ramhttp://www.trumanlibrary.org/audio/62_108_1.ramhttp://www.trumanlibrary.org/audio/62_108_1.ram


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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 militaryNarrow interpretation: theater of war operations

Example: Lincolns emancipation proclamation

Domestic actions and foreign wars?

What limits during an era of permanent war?


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What power does Truman exercise here?

Inherent? Extra-constitutional powers?

Federal govt 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 thepeople. It was not only his right but his duty to doanything that the needs of the Nation demandedunless such action was forbidden by the const. or bythe law.


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Closer examination of war 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 executecongress war policy and to directwar operations themselves

Was Korean War a declaredwar?

Would it matter if it were?


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Justice Blacks StrictApproach

Unless Trumans action is found withinhis Article II powers, it is unconstitutional

Executive Power this is not equivalent to Kings 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

compensation

C-I-C domestic effects not within C-I-C powers


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Douglas' CautionaryApproach

Emergency does not create power; it onlyprovides an occasion for use of power

SoP adopted not to promote efficiency, but touse the inevitable friction to safeguard liberty

Seizure by President ties Congress's handon implementation of policy

Commits the US to payment of compensation


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Frankfurters FlexibleApproach

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 actionreclaiming its delegated authority

which is what happened in this case because congress hadspecifically 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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Jacksons StructuredApproach

SoP is misnomer; branches act in concert separateness, but interdependence

autonomy, but reciprocity

Interaction between Congress & President

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

Any power congress has validly delegated to him

2. Congress remains silent

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

3. 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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Jacksons 3-Zone test endures

Zone 1: Approval

President acts w/ congressional authority Presidential action is invalid only if federal govt 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 againstdamage to const'l rights and structure

other imperatives and imponderables of events

Zone 3: Disapproval

President acts despite congress disapprovalValid only if w/in Art. II (or approved inherent power)


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Jackson's eloquy on SoP

"With all its defects, delays andinconveniences, men have discovered notechnique for long preserving freegovernment except that the Executive be

under the law, and that the law be madeby parliamentary deliberations."

Robert Jackson was chosen byPresident Harry S Truman in 1945to be the Chief Prosecutor for theUnited States at Nuremburg


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Inherent Power: Executive Privilege

The demand for executive information

A 2-fold Separation of Powers problem

Judicial inquiry into executive actions couldinterfere with performance of const'l duties

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


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United States v. Nixon(1974)

Subpoena to President to turn overtapes for use in criminal trial

Justiciability (political question) Is there a textually demonstrable constitutional

commitment of the question (whether executiveprivilege 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 actionof the Special Prosecutor on this issue So-called "intra-branch dispute"

If not, Court must decide the issue - Marbury


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Executive Privilege on the merits

Absolute (applies in all cases)

Qualified (applies in some casesincluding here)

Absolute Privilege

Assures confidentiality of exec. Communications

Assures independence of separate branches

Qualified Privilege

Need for confidentiality might occassionallyoutweigh 6thAmd. and judicial right to evidence

Balance can be accommodated in camera


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

national security or diplomatic secretsWill 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 tocomply with FACA

open meeting and disclosure reqs

Exclusive fed employee committes are exempt

Alleged: oil industry lobbyists were de factomembers

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 (extraordinarywrit)

Not an extraordinary case

President can invoke Exec. Privilege. What result?

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

Interference with Constl 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 Complicity

Can congress give too much power to Pres?

Per Jackson, Congress enlarges executivepower by delegating authority (Zone 1)

Per Frankfurter "gloss," power accrets to Pres

through congressional inaction and acquiesence

Any limits on the power that congress candelegate?


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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 beensigned into law pursuant to Article I, section 7,cancel in whole--

691(b): Cancellation becomes null & void ifoverriden by Disapproval Bill

(1) any dollar amount ofdiscretionary budget authority;

(2) any item of new directspending; or

(3) any limited tax benefit;


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Relevant Constitutional Provisions Art. I, 8, 1: "The Congress shall

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

Art. I, 9, 7: "No Money shall be drawn fromthe Treasury, but in Consequence ofAppropriations 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 thePresident


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Cancelled appropriations Bal. Budget Act of 1997: $2.6B medicare funds to NY

Taxpayer Relief Act of 1997: corporate tax benefit

Justifications 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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LIV violatesPresentment Clause

President has amended twoActs of Congress

by repealing portion of each.

Cancellation not the same as"return" of a bill

Return (regular veto)prevents a bill frombecoming law

Here, cancellation effectiveonly after bill becomes law


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Fall 2004 Con Law I Manheim 36

SoP Principles in LIV

Strict 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:

Doesnt usurp or aggrandize any branchs powers

Documents

Week 2 separation of power