1. Lecture 15 Separation of Powers
Part 1: Overview
and Domestic Powers

2. This chapter
We move from the powers that braches have to how those powers come into play when they may be in conflict
It is divided between sections on domestic and foreign affairs

3. Major Cases this chapter
Mistretta v. United States (1989)
Immigration and Naturalization Service v. Chadha (1983)
Bowsher v. Synar (1986)
The Prize Cases (1863)
Ex parte Milligan (1866)
Korematsu v. United States (1944)
Youngstown Sheet and Tube Company v. Sawyer (1952)
Dames & Moore v. Regan (1981)
Zivotosky v. Kerry (2015)
Hamdan v. Rumsfeld (2004)

4. This lecture First lecture in the chapter on Separation of Powers
Overview
Domestic Powers
Delegation of Powers
Congress and the Exercise of Executive and Judicial Powers
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5. Delegation of Powers
Can powers given to one branch by delegated to another?
So can any other branch the legislature exercise legislative powers?
Or executive? Or judicial?
The short answer is they can in some cases
Wayman v. Southard (1825)
Congress had delegated authority to the federal courts under the Judiciary Act of to set rules for the conduct of judicial business
Congress could delegate for the details but not important subjects
Congress could delegate this to the courts

6. More on delegation J.W. Hampton & Company v. United States (1928)
Could the Congress delegate the executive (through a commission) the ability to raise or lower tariffs by as much as 50%?
Yes, within limits
But in Panama Refining Company v. Ryan (1935) and Schechter Poultry Corporation v. United States (1935), the Court set more limits
These were part of the Court’s rulings against New Deal legislation
Hot oil and sick chicken cases
In these cases, the Court ruled that Congress did not set out enough guidelines
Gave the President too much discretion
Congress gave the President too much power

7. Mistretta v. United States (1989)
Background
The Sentencing Reform Act of 1984 sets up the Sentencing Commission
It created sentencing guidelines- all district courts would be subject to them
Seven members, three of which had to be federal judges, no more than four of a party
Nominated by the President, confirmed by the Senate
Federal courts sharply disagreed on its constitutionality
Question: Did the Sentencing Act violate the non-delegation clause?

8. Mistretta v. United States- II
Arguments
For Mistretta
Article III judges are limited to cases and controversies
Judges may not be given policy making roles
Since the President could remove a member, it threatens judicial independence
Congress did not provide an adequate intelligible principle for it to follow
For the United States
Judges may serve and have served in these type of positions
The President can only remove a judge from the commission, not their judgeship
Congress provided sufficiently intelligible principles for the commission to follow

9. Mistretta v. United States- III
Justice Blackmun writes for an 8-1 majority
This meets the intelligible principal test
Blackmun notes that the two New Deal cases were outliers
The Supreme has upheld every delegation since then
It involves “sentencing ranges” and offender categories
Congress gave many factors to consider on each point
The Commission was given sufficient directives in how to act
Scalia, J. dissenting
Guidelines have the force of law- not proper delegation
Slippery slope argument

10. Immigration and Naturalization Service v. Chadha (1983)
The is the legislative veto case
Background
Chadha was an immigrant from India
The Attorney General recommended he be allowed to stay
Congress, could by resolution of either one of them veto the AG decision
The House did just this to Chadha and a few others, but not the Senate
He challenged the constitutionality of the legislative veto- joined by Carter, later Reagan
Presentment Clause
The Court really didn’t want to have to rule here
It had to settle a legislative/executive disagreement

11. Immigration and Naturalization Service v. Chadha- II
Question: Did a one house disapproval violate separation of Powers?
Arguments
For the INS (and Carter and Reagan)
Must be bicameral
A one house veto violates separation of powers- takes away power from executive
Congress could add this to all legislation, and take away executive power
For the House and Senate
Congress reserved the right to make a final decision
It is a restraint on executive power, not an infringement
Congress is not encroaching on delegated powers
Blending of functions- pragmatic and flexible

12. Immigration and Naturalization Service v. Chadha- III
Chief Justice Burger writes for a 7-2 majority
This violates the Presentment Clause
Violates the nature of a bicameral legislature
The President has veto power only
Congress made the decision to delegate to the executive- it is bound by that
Congress does not get to share in these decisions once it gives them up

13. Immigration and Naturalization Service v. Chadha- IV
Justice White dissents
So does Rehnquist in a separate on joined by White
This nullifies over 200 other statutes that have a legislative veto
He says it is a way for the legislative branch to hold the executive branch and independent agencies accountable for its actions
How else can we hold the executive branch accountable?
This had been done in the past more than 200 times
Congress still tries to do this
Congressional Review Act of 1996
Both houses of Congress pass a bill (not subject to filibuster) to disapprove of a regulation
President can sign or veto it

14. Bowsher v. Synar (1986) Bowsher v. Synar (1986) Background
Challenge to the Gramm-Rudman-Hollings Act of 1985
The bill called for automatic spending cuts when the Congress failed to meet the targets for deficits set in the bill
“Doomsday Device”
But who determined what the deficit was (so how much to cut)?
It has a complicated process that delegated much of the final power to the Comptroller
The Comptroller is an employee of the legislative branch under the GAO
Can only be removed by Congress
Question: Did giving the Comptroller these powers under Gramm-Rudman-Hollings violate separation of powers?

15. Bowsher v. Synar- II Arguments For Bowsher and the Congress
The Comptroller and GAO were made to be independent
Follow Humphrey’s Estate- it is still independent despite Congressional authority to remove for cause
This is essentially delegation of a ministerial function, not policymaking
For Mike Synar and the National Treasury Employee’s Union
The whole goal is to avoid political accountability through delegation
The Comptroller can make binding decisions on other branches
The spending power is held by Congress and it may not be delegated
This power should be left to the Congress and the President, not the Comptroller

16. Bowsher v. Synar- III Chief Justice Burger writes for a 7-2 Court
With a concurrence by Stevens, joined by Marshall
The Comptroller is a part of the legislative branch
I am an agent of Congress
Congress still has removal authority
The type of decisions he would have to make here are essentially executive, and not ministerial
The comptroller is essentially commanding the President what to do in terms of spending
Since Congress has given such power to an official subject to removal only by itself, it improperly intruded into the executive branch

17. Bowsher v. Synar- IV Justice White dissents
Justice Blackmun does as well in a separate opinion
White says that it is permissible since both branches approved of it
He would look more to results
He went back to his criticism of Chadha
The Court distinguishes this case from Morrison v. Olson (1988)
Congress did not try to gain more power
Power to remove still lay within the executive- the Attorney General
What made Bowsher different was Congress trying to gain new powers

18. Next lecture We will move into foreign affairs
This will be broken three lectures
Next time we will move up to the Korematsu case
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