Constitutional Law I Spring 2004Con Law I Separation of Powers - I Mar. 9, 2004

2 Introduction to Separation of Powers 3 co-equal branches of government Art. ICongress – Makes Law Art. II Executive - Executes the law Art. III Judicial - Interprets and applies the law Why this “separation”? Enhances liberty Checks and balances Stability in government

3 Theoretical & Historical Origins Marchamont Nedham, Excellencie of a Free-State (1656) An “Errour in Policy hath been this, viz. a permitting of the Legislative and Executive Powers of a State, to rest in one and the same hands and persons. By the Legislative Power, we understand the Power of making, altering, or repealing Laws. By the Executive Power, we mean that Power which is derived from the other, and by their Authority transfer'd into the hand or hands of one Person, (called a Prince) or into the hands of many (called States) 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.”

4 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 execute them, whereby they may exempt themselves 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.”

5 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 out ofpowers.net/

6 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.”

7 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”

8 Themes in SoP Incomplete separation The constitution is full of instances where a power is shared between 2 branches Encroachment 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 powers Formalism Form must be observed, esp. by Congress

9 SoP Matrix CongressPresidentFederal Court Legislative Strict Formalism Flexible & Functional Strict in theory; loose in practice Executive ForbiddenAnything goes Rare Judicial ForbiddenGenerousNominally strict (per Art. III)

10 Art. II – Executive 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 in Chief.. have Power to grant Reprieves & Pardons..  § 2, ¶ 2: make treaties and appointments …  § 2, ¶ 3: “Power to fill up all Vacancies …” take Care that the Laws be faithfully executed  § 2, ¶ 4: recommend laws to Congress; “receive ambassadors,” and “shall take Care that the Laws be faithfully executed.” This power depends upon legislation; therefore congress has some control over it

11 Art. II – Executive Power Sources of Executive Power Art. II Congress (via legislation needing implementation) Inherent power?  What if the constitution omits something important, like protecting the US from imminent invasion or insurrection?

12 y

13

14 Radio address

15 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?

16 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.”

17 Youngstown Steel v. Sawyer (1952) war power 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 execute congress’ war policy and to direct war operations themselves Was Korean War a “declared war”? Would it matter if it were?

18 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 compensation C-I-C  domestic effects not within C-I-C powers

19 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

20 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.

21 Jackson’s Structured Approach SoP is misnomer; branches act in concert separateness, but interdependence autonomy, but reciprocity Interaction between Congress & President Congress authorizes, triggering executive power  President possesses all his own powers, plus  Any power congress has validly delegated to him Congress remains silent  President possesses express & implied powers those stated in §2 plus those he shares with congress Congress rejects presidential power  Pres has only Art II power, minus shared powers those that congress may not take away from him

22 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 disapproved  Balance need for unilateral presidential action against damage to const'l rights and structure  other “imperatives” and “imponderables” of events Zone 3: Disapproval President acts despite congress’ disapproval  Valid only if w/in Art. II (or approved inherent power)

23 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."

24 Executive Privilege The demand for executive information A 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.

25 United States v. Nixon (1974) Subpoena to President to turn over tapes for use in criminal trial Justiciability (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

26 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 branches Qualified Privilege Need for confidentiality might occassionally outweigh 6 th Amd. and judicial right to evidence Balance can be accommodated in camera

27 United States v. Nixon (1974) Should Nixon have Qualified Privilege here? "Generalized" need for confidentiality, not military or diplomatic secrets  Will presidential advisors withhold advice (therey 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

28 Excessive Complicity Can 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?

29 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;

30 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 …”

31 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 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

32 Clinton v. New York (1998) LIV violates Presentment Clause President has amended two Acts of Congress  by repealing a portion of each. Cancellation not the same as "return" of a bill  Return (regular veto) prevents a bill from becoming law  Cancellation effective only after the bill becomes law

33 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: Doesn’t usurp or aggrandize any branch’s powers