CRS Report for Congress
The Separation of Powers Doctrine:
An Overview of its Rationale and Application
June 23, 1999
T.J. Halstead
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

This report discusses the philosophical underpinnings, constitutional provisions, and judicial
application of the separation of powers doctrine. In the United States, the doctrine has evolved
to entail the identification and division of three distinct governmental functions, which are to
be exercised by separate branches of government, classified as legislative, executive, and
judicial. The goal of this separation is to promote governmental efficiency and prevent the
excessive accumulation of power by any single branch. This has been accomplished through
a hybrid doctrine comprised of the separation of powers principle and the notion of checks and
balances. This structure results in a governmental system which is independent in certain
respects and interdependent in others.

The Separation of Powers Doctrine:
An Overview of its Rationale and Application
As delineated in the Constitution, the separation of powers doctrine represents
the belief that government consists of three basic and distinct functions, each of which
must be exercised by a different branch of government, so as to avoid the arbitrary
exercise of power by any single ruling body. This concept was directly espoused in
the writings of Montesquieu, who declared that “when the executive and the
legislature are united in a single person or in a single body of magistracy, there is no
liberty, because one can fear that the same monarch or senate that makes tyrannical
laws will execute them tyrannically.” The Framers of the Constitution shared this1
view, with James Madison stating that “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.”2
To alleviate the dangers inherent in centralized power, the Constitution
establishes three separate branches of government, the legislative, the executive, and
the judiciary. Through this structure, the Framers sought to create an efficient
governmental system which would limit the power vested in any one branch.
Realizing that mere textual separation would be insufficient to guard against
aggrandizement by the respective branches, however, a system of checks and balances
was developed, by which the three arms of government could resist against
encroachment. Through this system, the various branches of government share certain
interdependent characteristics which enable efficient governance, while other
functions are staunchly protected, so as to prevent the accumulation of excessive
power by any single branch.

Montesquieu, The Spirit of the Laws, 157 (Anne M. Cohler et al. eds., 1989).1
The Federalist Papers, No. 48, at 301 (J. Madison) (C. Rossiter ed. 1961).2

Framework of the Doctrine....................................1
Aims of the Doctrine: Origin and Evolution........................1
Separation and Branch Independence.............................4
Branch Interdependence: Checks and Balances.....................5
Interpretation of the Doctrine...................................6
Application of the Doctrine....................................8
A. Limitations on Executive Power..........................8
B. Legislative Delegation, Bicameralism/Presentment and Appointment and
Removal Requirements...........................12
C. Judicial Infringement and Aggrandizement..................19
D. Judicial Apprehension in Relation to Interbranch Conflicts......24
Conclusion ................................................ 27

The Separation of Powers Doctrine:
An Overview of its Rationale and Application
Framework of the Doctrine
The Constitution of the United States establishes the framework by which the
federal government exercises power. A cornerstone of this structure is the doctrine
of separation of powers, which stands for the proposition that certain political
functions must be allocated amongst various governmental branches, so as to avoid
domination by any one entity. Although the separation of powers concept plays a key
role in the American political process, the Constitution does not expressly delineate
the scope and effect of the doctrine. Rather, the doctrine manifests itself in the
Constitution’s distribution of federal power among the legislative, executive, and
judicial branches. Specifically, Article I of the Constitution provides that “all

legislative powers herein granted shall be vested in a Congress.” Article II establishes3
that “the executive power shall be vested in a President.” Finally, Article III provides4
that “the judicial power of the United States shall be vested in one Supreme Court.”5
The main reason for this division of governmental functions stems from the
desire of the Framers to prevent the concentration of power in the hands of any one
entity. As an outgrowth of this concern, the Framers departed from a pure6
separation of powers model, and established a system of checks and balances in the
Constitution, giving each branch a measure of power over the other. The effect of7
this system is to limit the power of each branch, encouraging competition in an effort
to maintain a relative balance of power. 8
Aims of the Doctrine: Origin and Evolution
The origin of the doctrine of separation of powers is often traced to ancient
Greece and the writings of Aristotle. Aristotle maintained that the political process
was characterized by distinct functions, which he identified as deliberative,
magisterial, and judicial. This notion of the distinct character of various governmental
actions did not contemplate, however, that such functions should be entrusted to, and
exclusively exercised by, specific groups of people. Rather, these functions were seen
as a method “to attain a balance between the various classes of society,” and to enable
them to play a role in governmental functions. Such a dynamic is evidenced by the9
mixed governmental structure which existed in Classical Greece, as opposed to a clear
separation of powers model.
The modern separation of powers concept began to develop in England in the
middle of the 17 century, during a period of significant conflict between theth
monarchy and Parliament. As the concept of mixed government fell out of favor,10
scholars and statesmen recognized the need to place limits on the power of both the
King and Parliament. Furthermore, the English civil war served to draw attention to11
the need for a government consisting of bodies restrained to the exercise of specific
and appropriate functions. With the eventual resurgence of the monarchy, however,12
a pure separation of powers model could not exist. Ultimately, a refined model of the

U.S. Const. art. I, § 1.3
U.S. Const. art. II, § 1.4
U.S. Const. art. III, § 1. 5
The Federalist Papers, No. 48, at 301 (J. Madison) (C. Rossiter ed. 1961).6
The Federalist Papers, No. 48, at 308-309 (J. Madison).7
M.J.C. Vile, Constitutionalism and the Separation of Powers, 25 (2 ed. 1998).9nd
Vile, supra note 9, at 43. 10
Id. at 49.11
Id. at 49.12

concept emerged in the “balanced constitution” of England. Specifically, the concept13
manifested itself in an “amalgam of mixed government, legislative supremacy, and the
separation of powers.” 14
While English experience with the doctrine undoubtedly influenced the Framers,
it is clear that fundamental differences between the English governmental structure
and the republican aims of the newly formed United States prevented substantial
reliance upon the English concept of separated powers. As was noted by the15
Supreme Court early in the nineteenth century, the distribution of political power in
the United States differs significantly from the authority and sovereignty exercised by
the monarchy in the English system. 16
Ultimately, the Framers relied more upon philosophical and scholarly
considerations of the separation of powers concept than the actual English
experience. Indeed, the writings of Montesquieu and John Locke are largely credited17
with assisting in the development of the theory of separation of powers as expressed
in the Constitution. Locke, for instance, expanded upon the notion that governmental
functions should be dispersed for the sake of efficiency, by maintaining that the
centralization of ruling authority would lead to oppressive authoritarianism and the
loss of liberty. Illustrating this contention, Locke explained that no person should18
be permitted to act as both judge and executioner or as both lawmaker and judge, as
individuals with such authority would inevitably develop and apply self serving
standards and laws. 19
Similarly, Montesquieu perceived man as having a tendency towards evil and a
desire for power. This perception of human nature gave rise to a concern on the part20
of Montesquieu regarding the arbitrary exercise of political power, leading to the
exposition that liberty is destroyed in a government of unseparated powers. Building21
upon earlier works regarding the doctrine, Montesquieu envisioned a governmental
structure in which power would be dispersed among three branches, with a system of
checks and balances. In Montesquieu’s view, this arrangement was superior to a pure
separation of powers structure, in that a checks and balances system would allow each
part of a government to veto or circumscribe the actions of the other. Such a division
of power, according to Montesquieu, would enable an arm of a government to act
efficiently without usurping the powers of another.

Id. at 58.13
Id. at 81.14
Louis Fisher, Conflicts Between Congress and the President, 6 (4 ed. 1997).15th
Fisher, supra note 10, at 7 (discussing Fleming v. Page, 50 U.S. (9 How.) 602, 618 (1850)).16
The Federalist Papers, No. 47, at 324-326 (J. Madison).17
Eric Greenberg, Falsification as Functionalism: Creating a New Model of Separation of18
Powers, 4 Seton Hall Const. L.J. 467, 494 (1994).
Id. at n.133.19
Vile, supra note 9, at 85.20
Id. at 80, 85.21

The early development and acceptance of the separation of powers doctrine by
the founding fathers was heavily influenced by these perspectives. Indeed, the Framers
were strong proponents of the doctrine, possessing a similar distrusting view of the
human desire for power. Such a concern was evidenced by James Madison, who
warned that “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.” In22
refining the doctrine as it was to apply to the new union, the Framers, following the
ideas of Locke and Montesquieu, forsook the pure separation of powers concept in
favor of a hybrid doctrine designed to check and balance governmental powers.23
Madison served as the most eloquent proponent of this refined doctrine, maintaining
that separate branches of government cannot remain independent if their supposedly
distinct powers are based merely upon definitional boundaries. This theory led to
Madison’s argument that the members of a respective branch of government would
continually seek to aggrandize the power exercised by that branch. Accordingly,
Madison explained that “ambition must be made to counteract ambition,” through the
use of checks to thwart power struggles inherent in the political system. As a result
of these concerns, the Framers divided power among the executive, legislative, and
judicial branches to assure their existence as independent and co-equal entities, with
no branch possessing “directly or indirectly, an overruling influence over the others,
in the administration of their powers.” 24
From this emphasis on a checks and balances model, it is evident that the
Framers recognized the need for interplay among the branches. Such an appreciation
is manifested in the Constitution, which “by no means contemplates a total separation
of each of [the] three essential branches of government.” As was noted by the25
Supreme Court, this fact illuminates the role of the Framers as pragmatic politicians
who saw the separation of powers doctrine as an essential tool against tyranny, while
at the same time realizing that “a hermetic sealing off of the three branches of
government from one another would preclude establishment of a nation capable of
governing itself effectively.” This model is based, in part, upon Montesquieu’s2627
notion of implementing positive, as well as negative checks. The effect of such an
allocation, according to the theory, would be to allocate specific and independent
functions, while creating a level of interdependence to prevent a particular branch
from abusing the power of its core functions. This maxim has manifested itself in
separation of powers jurisprudence, with Justice Jackson’s statement that “while the
Constitution diffuses power the better to secure liberty, it also contemplates that

The Federalist Papers, No. 48, at 301 (J. Madison).22
Vile, supra note 9, at 153-160.23
The Federalist Papers, No. 48, at 308 (J. Madison).24
Buckley v. Valeo, 424 U.S. 1, 121 (1976).25
Vile, supra note 9, at 93.27

practice will integrate the dispersed powers into a whole government. It enjoins upon
its branches separateness, but interdependence, autonomy but reciprocity.”28
With this view of the doctrine, the Framers of the Constitution developed a
separation of powers model which avoided imposing rigid barriers between the arms
of government, leading to a system which would allow for efficient and effective
governance. The independence and interdependence created by this system can be
appreciated by analyzing the interaction among the three branches of government.
Separation and Branch Independence
Building upon the notion that certain governmental functions should be under
the exclusive control of a particular branch, the Constitution establishes, explicitly and
implicitly, the independence and separation of the branches. This is seen in the speech
or debate clause, which provides for the “independence and integrity of the
legislature,” and also “reinforce[s] the separation of powers...” The purpose of the29
clause was to “prevent intimidation by the executive and accountability before a
possibly hostile judiciary.” There are other specific grants of pure legislative30
authority, such as Art. I, § 5, which mandates that each House judge the election,
returns, and qualifications of it members, to make rules governing its own
proceedings, and to maintain the confidentiality of such proceedings. To further
assure the separation of the branches, Art. I, § 2, prohibits any individual from holding
an executive office while also serving in Congress.
Similar autonomy may also be found in the executive branch, where the Supreme
Court has recognized absolute presidential immunity from civil liability for official
acts, as well as a qualified executive privilege to maintain the “confidentiality of
presidential communications [which] derives from the supremacy of the executive
branch within its assigned area of constitutional responsibilities.” This independence31
is further illustrated by the constitutional precept that the President may only be
removed from office through impeachment.32
The judiciary also exercises certain powers outside the purview of the other
branches, with the Court recognizing “clear institutional protections” contained in the
Constitution guaranteeing judicial independence. Among these protections is the33
right of judges under Art. III, § 1, to “hold their offices during good behavior,” and
to “receive for their services a compensation, which shall not be diminished during
their continuance in office.”

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J.,28
United States v. Johnson, 383 U.S. 169, 178 (1966).29
Id. at 181.30
See Nixon v. Fitzgerald, 457 U.S. 731 (1983); Nixon v. Administrator of General Services,31

433 U.S. 425, 447 (1977).

U.S. Const. art. II, sec. 4.32
Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50, 58 (1982).33

Branch Interdependence: Checks and Balances
While the aforementioned provisions identify core protections under the
doctrine, it again must be stressed that the Constitution “by no means contemplates
total separation of each of these three essential branches of government.” Rather,34
as was noted by Justice Story, while power is diffused under the doctrine in order to
protect liberty, the Constitution contemplates that practice will integrate the dispersed
powers into a workable government. It is through this structure of checks and35
balances that the Constitution prevents the aggrandizement of a particular branch,
namely by giving each arm of government “a degree of overlapping responsibility, a
duty of interdependence as well as independence.”36
Employing this maxim, the Constitution contains express provisions establishing
such interaction among the branches. For example, laws passed by Congress are
subject to veto by the President, which may be overruled by a supermajority vote of
both Houses. The Vice President serves as President of the Senate and possesses the37
power to break ties in that body. This quasi-symbiotic relationship is also apparent38
in the impeachment context. Specifically, Congress possesses the power to remove
the President, Vice President, and civil officers of the United States. However, while39
the House has the sole power of impeachment, and the Senate has the sole power to
try and convict in impeachment proceedings, the Chief Justice presides over trial of
the President. The independence of the judiciary is maintained in the same fashion,40
as judges are removable only upon impeachment, and their salaries may be increased,
but not diminished, by an act of Congress, subject to presidential veto. Furthermore,41
while the President possesses authority to make treaties and appoint officers,
including independent judicial officials, this power is contingent upon the advice and
consent of the Senate. Additionally, the President, as Commander in Chief,42
possesses the authority to commit troops, while Congress alone has the power to
declare war and raise and support the armed forces. Finally, while the House and43
Senate may set their own rules and time of adjournment, the President has the power
to convene either or both houses “on extraordinary occasions,” and in the event that

Buckley v. Valeo, 424 U.S. 1, 121 (1976).34
Youngstown, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).35
Mistretta v. United States, 488 U.S. 361, 381 (1989).36
U.S. Const. art. I, § 7, cl. 2.37
U.S. Const. art. I, § 3, cl. 4.38
U.S. Const. art. II, § 4.39
U.S. Const. art. I, § 2; § 3, cl. 5. 40
U.S. Const. art. II, § 2; art. III, § 1.41
U.S. Const. art. II, § 2.42
U.S. Const. art. I, § 8; art. II, § 2.43

the House and Senate disagree on the proper time of adjournment, the President may
“adjourn them to such time as he shall think proper.” 44
Interpretation of the Doctrine
From the above examples , it is evident that the separation of powers doctrine
fashioned in the Constitution assigns clear rights and duties to the three branches of
government, providing a framework for their exercise of power. However, it is also
apparent that the express language of the Constitution does not provide a definitive
exposition of the doctrine’s principles. While the first three articles of the
Constitution define the branches of government and delineate their respective
functions, the full scope and effect of the provisions are not explained. Furthermore,45
while the provisions discussed above are useful in illustrating the general doctrine and
the checks and balances dynamic, it has become evident that there are numerous
issues implicating the separation of powers doctrine which fall outside the definitional
boundaries contained in the Constitution.
Because of the nebulous parameters of the separation of powers doctrine, the
Supreme Court has often been called upon to clarify its scope, a task which has
become more and more common with the increase in the administrative nature of
governmental activity. In attempting to determine whether the separation of powers46
doctrine has been violated in a particular case, the Court has developed two main
analytical frameworks by which it scrutinizes the allocation of power among the
branches. Referred to as functionalism and formalism, these approaches share a
common concern regarding the allocation of power and branch aggrandizement, but
differ greatly in their views regarding the scope of the doctrine and the extent to
which governmental functions may be intermingled.47
A formalist approach to the consideration of separation of powers issues focuses
upon the text of the Constitution in an effort to ascertain to what degree branch
powers and functions may be intermingled. Specifically, the crux of formalism is that
the power delegated to a branch should be exercised exclusively by that branch, as
“the Constitution sought to divide the delegated powers of the new federal
government into three defined categories: Legislative, Executive, and Judicial.”48
Accordingly, formalism mandates a textual analysis of the Constitution as a sort of
bright line test to identify action which unconstitutionally encroaches upon or
aggrandizes the power of a particular branch. The effect of this approach is to49
ascertain whether the activity in question is judicial, executive, or legislative in nature,

U.S. Const. art. I, § 3, cl. 4; art. I, § 5, cl. 1, cl. 4.44
Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-560 (1992).45
See Jonathan L. Entin, Congress, the President and the Separation of Powers: Rethinking46
the Value of Litigation, 42 Admin. L. Rev. 31 (1991).
Peter R. Strauss, Formal and Functional Approaches to Separation of Powers Questions:47
A Foolish Inconsistency? 72 Cornell L. Rev. 488, 489 (1987).
INS v. Chadha, 462 U.S. 919, 951 (1983).48
See Myers v. United States, 272 U.S. 52 (1926); INS v. Chadha, 462 U.S. 919 (1983).49

and to circumscribe power which extends beyond the constitutionally assigned
functions of a particular branch. Stated differently, the Court looks to see if there is
a clear and explicit textual commitment of a power or function to one branch.
Contrary to formalism’s textual focus, a functionalist approach to separation of
powers issues centers on the notion that precise definitional boundaries cannot serve
as a basis for the resolution of separation of powers issues. This premise was
explained by Justice Jackson, who stated that “the actual art of governing under our
Constitution does not and cannot conform to judicial definitions of the power of any
of its branches based on isolated clauses or even single Articles torn from context.”50
Thus, a functionalist approach permits the sharing of power between branches,
concerning itself mainly with the preservation of the core function of a particular51
branch where there has been no exclusive textual commitment to a particular branch.
This notion of a core function derives from the functionalist theory that the
Constitution ascribes a unique and essential power to each branch of government,
which must be protected from usurpation by the competing branches. This concept
of a core function is more flexible than the definitional boundaries imposed by the
formalist approach. Branches may exercise the powers of another, so long as the
ability of the original branch to exercise such power is not impaired. Essentially, the52
functionalist approach does not hinge on textual commitments, focusing instead on
the actual effect of the exercise of power and the determination of whether such
action impinges upon a core function of a coordinate branch. 53
Application of the Doctrine
In addition to the independent powers and checks and balances discussed above,
the separation of powers doctrine also plays a significant part in defining the roles of
the respective branches in the legislative process. This aspect of the doctrine manifests
itself in the executive branch through the authority to advocate a legislative agenda
which is deemed “necessary and expedient,” as well as in the ability of the President
to exercise veto power over bills passed by both Houses. The Court has expounded54
upon the importance of the presidential veto power, noting that this ability serves as
a prophylactic against legislation which runs contrary to the public good and allows
the President to preserve the authority and power of the executive branch from
legislative aggrandizement.55
In keeping with the aims of the doctrine, however, the presidential veto power
is not absolute and cannot serve as a method by which the executive branch may

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J., concurring).50
See Commodities Futures Trading Comm’n v. Schor, 478 U.S. 833, 851 (1986).51
See Morrison v. Olson, 487 U.S. 654 (1988).52
Strauss, supra note 45, at 489.53
U.S. Const. art. I, sec. 7, cl. 2; art. II, sec. 3.54
INS v. Chadha, 462 U.S. at 947-948; Pocket Veto Case, 279 U.S. 655, 678 (1929).55

summarily block bills passed by Congress. Specifically, the Constitution imbues the
legislative branch with the power to override a presidential veto with a two-thirds
majority. Illustrating the effect of the checks and balances structure, though, is the
accompanying restriction that Congress may not circumvent the veto power by
passing legislation objectionable to the executive branch and adjourning before the
President has an opportunity to reject the bill. Specifically, the President possesses the
authority to exercise a “pocket veto” in the event that congressional adjournment
precludes the possibility of returning a measure to Congress. Similarly, the Court has56
not allowed Congress to abdicate its lawmaking power by expanding the President’s
veto power.57
A. Limitations on Executive Power.
From the aforementioned provisions, it is evident that the Constitution protects
the interests of the executive branch by bestowing upon the President the ability to
intervene in the legislative process. It is important to note, however, that presidential
ability to impact upon legislative functions is limited. It is well established, for
instance, that the President may not encroach upon the lawmaking powers of the
legislative branch through the issuance of executive orders. This issue was addressed
in Youngstown Sheet & Tube Co. v. Sawyer, where the Supreme Court was faced with58
an attempt by the executive branch to usurp the legislative power of Congress. In
Youngstown, the Court dealt with President Truman’s executive order directing the
seizure of steel mills, in an effort to avert the effects of a workers' strike during the
Korean War. Invalidating this action, the majority held that under the Constitution,
“the President’s power to see that laws are faithfully executed refutes the idea that he
is to be a lawmaker.” Specifically, Justice Black maintained that Presidential59
authority to issue such an order “must stem either from an act of Congress or from
the Constitution itself.” Applying this formalist reasoning, Justice Black's opinion60
for the Court determined that as no statute or Constitutional provision authorized
such presidential action, the seizure order was in essence a legislative act. The Court
further noted that Congress had rejected seizure as a means to settle labor disputes
during consideration of the Taft-Hartley Act. Given this characterization, the Court61
deemed the executive order to be an unconstitutional violation of the separation of
powers doctrine, explaining “the founders of this Nation entrusted the lawmaking
power to the Congress alone in both good and bad times.”62

U.S. Const. art. I, sec. 7, cl. 2. See also, Burke v. Barnes, 479 U.S. 361, 362 (1987).56
See note 73, infra.57

343 U.S. 579 (1952).58

Id. at 587.59
Id. at 585.60
Id. at 586.61
Id. at 589. Most recently, the United States Court of Appeals for the District of Columbia62
invalidated an executive order issued by President Clinton on the grounds that the order
conflicted with the National Labor Relations Act (NLRA). Chamber of Commerce v. Reich,
74 F.3d 1322 (1996). Specifically, the order at issue prohibited federal agencies from

While Justice Black’s majority opinion in Youngstown seems to refute the notion
that the President possesses implied constitutional powers, it is important to note that
there were five concurrences in the case, four of which maintained that implied
presidential authority adheres in certain contexts. Of these concurrences, Justice63
Jackson’s has proven to be the most influential, even surpassing the impact of Justice
Black’s majority opinion. Specifically, Jackson established a tri-partite scheme for
analyzing the validity of presidential actions in relation to constitutional and
congressional authority.64
Jackson’s first category focuses on whether the President has acted according
to an express or implied grant of congressional authority. If so, according to Jackson,
presidential “authority is at its maximum, for it includes all that he possesses in his
own right plus all that Congress can delegate,” and such action is “supported by the
strongest of presumptions and the widest latitude of judicial interpretation.”65
Secondly, Justice Jackson maintained that, in situations where Congress has neither
granted or denied authority to the President, the President acts in reliance only “upon
his own independent powers, but there is a zone of twilight in which he and Congress
may have concurrent authority, or in which its distribution is uncertain.” In the third66
and final category, Justice Jackson stated that in instances where presidential action
is “incompatible with the express or implied will of Congress,” the power of the
President is at its minimum, and any such action may be supported pursuant to only
the President’s “own constitutional powers minus any constitutional powers of
Congress over the matter.” In such a circumstance, presidential action must rest67
upon an exclusive power, and the Courts can uphold the measure “only by disabling68
the Congress from acting upon the subject.”
Applying this scheme to the case at hand, Justice Jackson determined that
analysis under the first category was inappropriate, due to the fact that President
Truman’s seizure of the steel mills had not been authorized by Congress, either
implicitly or explicitly. Justice Jackson also determined that the second category was69
“clearly eliminated,” in that Congress had addressed the issue of seizure, through

contracting with employers that permanently replaced striking employees. Id. at 1324. Upon
determining that the order conflicted with a provision of the NLRA guaranteeing the right to
hire permanent replacements during strikes, the court of appeals held that the statute
preempted the executive order, stripping it of any effect. Id. at 1339.
Id. at 659 (Burton, J., concurring); Id. at 661 (Clark, J., concurring in result only); Id. at63

610 (Frankfurter, J., concurring); Id. at 635 (Jackson, J., concurring).

Id. at 635-638.64
Id. at 635, 637.65
Id. at 637.66
Id. at 637.67
Id. at 637-638.68
Id. at 638.69

statutory policies conflicting with the President’s actions. Employing the third70
category, Justice Jackson noted that President Truman’s actions could only be
sustained by determining that the seizure was “within his domain and beyond control
by Congress.” Justice Jackson established that such matters were not outside the71
scope of congressional power, reinforcing his declaration that permitting the President
to exercise such “conclusive and preclusive” power would endanger “the equilibrium
established by our constitutional system.”72
Further proscriptions of Presidential power may be found in the Court’s
consideration of the constitutionality of the line item veto. In Clinton v. City of New
York, the Court addressed the question of whether the provisions of the Line Item
Veto Act conflicted with the separation of powers doctrine by violating the73
Presentment Clause of the Constitution. Specifically, the Act imbued the President
with the power to cancel provisions of certain spending laws, such as specific dollar
amounts of discretionary budget authority, items of new direct spending, and limited
tax benefits. The President could cancel such provisions within five days of having
signed them into law, if he determined that such cancellation would serve to reduce
the budget deficit, not impair essential government functions, and not harm the
national interest.74
Addressing these provisions, the Court noted that the practical effect of the Act
was to give the President the power to repeal legislation enacted by Congress. This75
power conflicted with the Constitution, according to the Court, as the President does
not possess the authority to amend or repeal legislation. Rather, as the Court
explained, the Presentment Clause dictates that upon being passed by both Houses of
Congress, a bill becomes a law only when approved and signed by the President. The76
Court stressed that constitutional silence regarding presidential repeals functioned as
an express prohibition on such activity. Clarifying this statement, the Court explained
that the Article I procedure for statutory enactment resulted from the “great debates
and compromises that produced the Constitution itself.” Accordingly, the Court77
emphasized that the enactment power could only “be exercised with a single, finely
wrought and exhaustively considered, procedure.” Given this maxim, the Court78
determined that the Act authorized the President to essentially create a law which had
not been voted upon by either House or presented to the President for approval and

Id. at 639.70
Id. at 640.71
Id. at 638, 640-645.72

118 S.Ct. 2091, 2102 (1998).73

Id. at 2102.74
Id. at 2103.75
Id. at 2103.76
Id. at 2103.77
Id. at 2104, quoting INS v. Chadha, 462 U.S. 919, 951 (1983).78

signature. As such, the Court ruled that the Act violated the Presentment Clause of
Article I, and could not stand. 79
The Supreme Court has also ruled that the separation of powers doctrine does
not preclude private legal action against the President. In Clinton v. Jones, the Court
addressed the question of whether the federal courts were constitutionally required
to stay all private actions against the President until his vacation of office.
Acknowledging the “unique importance of the Presidency in the constitutional
scheme,” the Court nonetheless determined that the doctrine would not be implicated
by allowing a private action to proceed. The Court explained that the proscriptions
of the doctrine serve as a “safeguard against the encroachment or aggrandizement of
one of three equal branches of Government at the expense of another.”80
Specifically, the Court noted that there was no evidence or suggestion that the
federal judiciary would be exercising, let alone encroaching upon, any executive
functions. Rather, the Court declared that the judiciary’s decision to allow the
procession of private legal action would merely be an exercise of the Court’s Article
III jurisdiction to decide cases and controversies. Accordingly, no likelihood of
executive curtailment could be said to exist. The Court dismissed arguments that
permitting such private actions would place unacceptable burdens on the President’s
ability to perform his official duties, noting that there was no historical or evidentiary
foundation for such a concern. Furthermore, the Court explained that the Judiciary’s
power to review the legality of Presidential conduct would outweigh any such
concern. Because of these factors, the Supreme Court concluded its analysis,81
holding that “it must follow that the federal courts have power to determine the
legality of the President’s unofficial conduct."
B. Legislative Delegation, Bicameralism/Presentment and Appointment and
Removal Requirements.
The Supreme Court has also dealt with constitutional limits upon the power of
Congress in the exercise of its legislative duties, focusing primarily on the
Bicameralism and Presentment Clause and the Appointments Clause, as well as the
non-delegation doctrine.

118 S.Ct. at 2107. Having determined that the Act was violative of the Presentment Clause,79

the Supreme Court declared that there was no need to consider its legitimacy on delegation
grounds. Id. at 2094. However, the United States District Court for the District of Columbia
had previously noted that, in addition to violating the Presentment Clause, the Act also
implicated the separation of powers doctrine by bestowing excessive rulemaking authority
upon the President. City of New York v. Clinton, 985 F.Supp. 168, 181 (D.D.C. 1998).
Specifically, the district court explained that by allowing the President to strike provisions of
an enacted law, the Act gave the President the power to "permanently shape laws and package
legislation" Id. Noting that the exercise of such an "inherently legislative function" would be
in fundamental conflict with the President's duty to faithfully execute the laws, the district
court declared that the Act was unconstitutional. Id.

520 U.S. 681, 682 (1997), citing Buckley v. Valeo, 424 U.S. 1, 122 (1976).80

520 U.S. at 682. The Court also pointed to the Judiciary’s authority to direct appropriate81

process to the President. Id. at 682, citing United States v. Nixon, 418 U.S. 683 (1974).

The non-delegation doctrine establishes that, in order to assure the "integrity and
maintenance of the system of government ordained by the Constitution," Congress
may not make a general delegation of its legislative power to another Branch.82
Because of the need for assistance from the coordinate Branches, however, the Court
has allowed legislative delegation where Congress lays down "by legislative act an
intelligible principle to which the person or body authorized to [exercise delegated
authority] is directed to conform...”83
Because of the pragmatic necessities of government, the Court has granted broad
power to Congress to delegate legislative authority to the coordinate branches.84
Indeed, the Court has invalidated such grants of authority only in two instances,
where it was determined that Congress had improperly delegated its Article I
legislative power to the executive branch by imbuing it with the ability to make
unfettered law and policy decisions. Based upon "Congress' ability to delegate85
power under broad standards," concern over such legislative grants of authority does
not center on the mere act of delegation, but rather on congressional abdication of86
core legislative functions. As such, the practical effect of the intelligible principle
maxim is to require that Congress, not the delegee, render the underlying policy
decision and delineate reasonable legal standards for its enforcement, so as to avoid
separation of powers conflicts. 87
Regarding bicameralism and presentment, while express provisions in the
Constitution establish identifiable parameters for the satisfaction of the clause, the
increasingly delegated quality of governmental activity has raised questions regarding
the extent to which legislative and executive functions may be intermingled.
Specifically, the procedural requirements of Article I dictate that “every bill which
shall have passed the House of Representatives and the Senate, shall, before it
becomes a law, be presented to the President of the United States.” The Supreme88
Court addressed the clause as it relates to the separation of powers doctrine in INS
v. Chadha.
In Chadha, the Court analyzed the Immigration and Nationality Act, which
granted to Congress the power to exercise a legislative veto over decisions made by
the Attorney General under the Act. Specifically, the Act enabled Congress to

Field v. Clark, 143 U.S. 649, 692 (1892). See also, Mistretta v. United States, 488 U.S.82

361, 371-372 (1988).

J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).83
Id. at 373.84
See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schecter Poultry Corp. v.85
United States, 295 U.S. 495 (1935).
Panama Refining Co., 293 U.S. at 415.86
See Mistretta v. United States, 488 U.S. at 371-375. The Court has recognized the ability87
of a delegee agency to formulate the necessary intelligible principle, or guiding, confining,
standard if Congress has not done so itself in the enabling legislation. See, e.g., Lichter v.
United States, 334 U.S. 742 (1948).
U.S. Const. art. I, sec. 7, cl. 2.88

overrule deportation decisions by the passage of an appropriate resolution by one
House of Congress. The Court noted that a legislative veto constituted an exercise89
of legislative power, as its use has “the purpose and effect of altering the legal rights,
duties, and relations of persons...outside the legislative branch.” As such, the Court90
concluded that a legislative veto could only be exercised in comportment with the
bicameralism and presentment requirements of Article I. Given that the statute91
permitted either House of Congress to execute a legislative veto, the Court
determined that the provision was an unconstitutional violation of the separation of92
powers doctrine.
With its decision in Chadha, the Supreme Court established that Congress may
exercise its legislative authority only “in accord with a single, finely wrought and93
exhaustively considered procedure,” namely bicameral passage and presentation.
This formal stance by the Court evidences the traditional concern regarding the
potential aggrandizement of the legislative branch. As was noted by the Court in
Chadha, the Constitution places specific limits on Congress as a result of “the
profound conviction of the Framers that the powers conferred on Congress were the
powers to be most carefully circumscribed.” Accordingly, the judiciary’s concern94
with preventing legislative aggrandizement has led to its review of other cases where
Congress has departed from the express practices delineated in the Constitution. In
this context, particular attention has been paid to congressional encroachment upon
the President’s removal and appointment powers, as well as legislative attempts to
enforce the laws.
In Myers v. United States, for instance, the Supreme Court addressed the
President’s summary dismissal of a postmaster from office, in contravention of a
statute requiring that the President obtain the advice and consent of the Senate prior
to removal. In its disposition of the case, the Court ruled that the President95
possesses plenary authority to remove presidentially appointed executive officers who
have been confirmed by the Senate. The Court went on to explain that the President96
has plenary removal power over other executive officers, so long as Congress does
not expressly provide otherwise. The Court further clarified the scope of the97
appointment power, noting that while Congress can imbue cabinet officers with the

INS v. Chadha, 462 U.S. 919, 923 (1983).89
Id. at 952.90
Id. at 954-955.91
Id. at 954-955.92
Id. at 951.93
Id. at 947.94

272 U.S. 52, 106-107 (1926).95

Id. at 175-176.96
Id. at 161.97

power to appoint inferior officers and place restrictions upon their removal, it may not
involve itself directly in the removal process.98
While the decision in Myers seemed to establish clear limitations on the ability
of Congress to interfere with the President's appointment and removal power, the
Supreme Court, in Humphrey's Executor v. United States, employing functionalist
analysis, unanimously upheld a law proscribing the President's ability to remove an
agency official. Specifically, the Court addressed a provision of the Federal Trade99
Commission Act which provided that the President could remove an FTC
commissioner only on the basis of inefficiency, neglect of duty, or malfeasance in
office. Distinguishing the case at hand, the Court held that Myers was limited to100
"purely executive officers," and could not include officers not in the executive
department and those who exercised "no part of the executive power vested by the
Constitution in the President." Explaining that the FTC was not an executive body,101
but rather functioned as a "quasi-legislative or quasi-judicial" agency, the Court ruled
that Congress possessed the authority to control the terms of removal for such102
This functional approach to removal questions was extended in Morrison v.
Olson, where the Supreme Court clarified that the proper inquiry regarding removal
power questions should focus not on an officer's status as either "purely" executive,
"quasi-legislative," or "quasi-judicial," but, rather, on whether a removal restriction
interferes with the ability of the President to exercise executive power and to perform
his constitutional duty. Applying this maxim to the independent counsel statute,103
which placed removal power in the Attorney General, the Court found that, while
imbued with the power to perform law enforcement functions, the independent
counsel lacked significant policymaking or administrative authority. As such, the
Court determined that removal power over the independent counsel was not essential
to the President's successful completion of his constitutional duties.104
In Buckley v. Valeo, the Court analyzed provisions of the Federal Election
Campaign Act of 1971, which established a six member Federal Election Commission

Id. at 161.98

295 U.S. 602 (1935).99

Id. at 619-620.100
Id. at 627-628.101
Id. at 628-629. The duties of the commission included conducting investigations and making102
pertinent reports to Congress, as well as acting as "a master in chancery under rules
prescribed by the court." Id. Accordingly, the Supreme Court ruled that the legislative and
judicial functions envisioned by the statute necessarily placed the FTC outside the scope of
complete executive control. Id.

487 U.S. 654 (1988). See also, The Constitution of the United States of America, Analysis103rdst

and Interpretation, S.Doc. 103-6, 103 Cong., 1 Sess., 530-531 (1996). For a more detailed
discussion of this case, see note 121 and accompanying text, infra.
Id. at 531.104

to oversee federal elections. Specifically at issue was the congressionally mandated105
composition of the Commission, which was to consist of six voting members. Under
the statute as passed by Congress, two members would be appointed by the Speaker
of the House, two by the president pro tempore of the Senate, and two by the106
President, subject to confirmation by both Houses of Congress. Chief among the
duties of the Commission was the imposition of penalties upon individuals or
organizations that violated provisions of the Act. Given the substantial duties107
assigned by law to the Commission, the Court determined that it was an executive
body. Noting that it is “to the President and not to the Congress, that the Constitution
entrusts the responsibility to ‘take care that the laws by faithfully executed,’" the
Court explained that the statute violated the Appointments Clause, which requires
appointment of “Officers of the United States” by the President, contingent upon108
confirmation by the Senate. Thus, as it did in Chadha, the Court in Buckley
employed a formalistic approach to the Separation of Powers doctrine. Whereas
Chadha established that Congress could not circumvent the bicameralism and
presentment requirements of Article I through the use of a legislative veto, Buckley
limited Congress’ ability to direct the composition of executive bodies in
contravention of the express provisions of the Appointment Clause.
In addition to limiting the ability of Congress to depart from the strictures of its
legislative function or to exercise power beyond the scope of the appointments clause,
the Constitution also limits the ability of the legislative branch to encroach upon the
core functions of the other branches. In keeping with this principle, the Court has
carefully proscribed legislative attempts to extend its power into the executive branch.
In Bowsher v. Synar, for instance, the Court interpreted the Separation of Powers
doctrine as it applied to the Gramm-Rudman Deficit Reduction Act. Under the Act,109
the Comptroller General was empowered to review deficit estimates from the Office
of Management and Budget and the Congressional Budget Office, and to mandate
spending reductions to meet a specified deficit level. This report by the Comptroller
General would then be forwarded to the President who was required to issue an order
enforcing the spending reductions. The order would become effective unless Congress
passed legislation which reduced spending to meet deficit estimates. Furthermore, the110
Comptroller General could only be removed by Congress, via a joint resolution.
The Supreme Court found that the Act imbued the Comptroller General, an
official appointed by the President, but removable by Congress, with the power to
interpret provisions of the Act, and to dictate the means by which the executive
branch implemented budget reduction measures. Accordingly, the Court determined111
that the Comptroller General, a legislative branch officer, was, in essence, performing

424 U.S. 1 (1976).105

Id. at 113.106
Id. at 111-112.107
Id. at 140-141.108

478 U.S. 714 (1986).109

Id. at 728.110
Id. at 728.111

the functions of an executive officer in executing a law passed by Congress, a duty
constitutionally committed to an officer of the executive branch. This dynamic112
rendered the Act unconstitutional, as the Court explained, because of the maxim that
“once Congress makes its choice in enacting legislation, its participation ends.”113
Subsequent to enactment, Congress may “control the execution of its enactment only passing new legislation.” The Court determined that by placing the114
authority to implement the Act in an officer subject only to congressional removal,
Congress in effect “retained control over the execution of the Act” and115
unconstitutionally “intruded into the executive function.”
Through its decisions in cases such as Myers, Buckley and Chadha, the Supreme
Court relied upon a formal textual interpretation of the Constitution in determining
that Congress violates the separation of powers doctrine when it attempts to directly
or indirectly enforce the laws, or exercise appointment or removal power over officers
charged with executing the law. It is important to note, however, that concern
regarding legislative aggrandizement extends beyond congressional activity which
implicates explicit provisions in the Constitution. Specifically, the Supreme Court has
been careful to proscribe congressional activity which would influence interbranch
relations contrary to the doctrine.
In Metropolitan Washington Airports Authority v. Citizens for the Abatement
of Aircraft Noise, the Court reviewed the congressional establishment of a Board of
Review over the Metropolitan Washington Airports Authority, a compact between
the District of Columbia and Virginia. The Authority selected its own members, but
was bound by congressional mandate to select members of Congress to serve on the116
review board. Specifically, the statute in question subjected the Airports Authority
“to the veto power of” the Board of Review, and stated that Members of Congress
served “in their individual capacities.” The Court determined that irrespective of the117
statute’s claim that Members did not act in their official capacities, the Board of
Review in fact acted as an agent of Congress, giving the legislative branch de facto
control over the operations of the Airports Authority. As such, the Court concluded
that the veto power was an unconstitutional aggrandizement of legislative power.118
This focus on limiting congressional ability to exercise power beyond the
traditional scope of the legislative branch was further illustrated in Hechinger v.
Metropolitan Washington Airports Authority. In Hechinger, the Court of Appeals119
for the District of Columbia addressed continued congressional attempts to exert
influence over the Airports Authority. Specifically, Congress, subsequent to the

Id. at 733.112
Id. at 733.113
Id. at 734.114
Id. at 734.115

501 U.S. 252, 268-269 (1991).116

Id. at 270.117
Id. at 275-277.118

36 F.3d 97 (D.C. Cir. 1994), cert. denied, 513 U.S. 1126 (1995).119

Supreme Court’s rejection of the review board scheme in the original case, created
another board of review which possessed only the power to delay the Airports
Authority’s decision making and implementation process. Such a distinction from the
veto power of the original case was deemed irrelevant, as the court determined that
the purpose of the board was to influence the Authority’s decision making process.
Accordingly, the court held the statute unconstitutional, as such an extension of
legislative power was an impermissible aggrandizement under the doctrine.120
However, in keeping with the Framer’s belief that a flexible doctrine was
necessary to allow for effective governance, the Supreme Court has departed from a
formal interpretation of the separation of powers principle in circumstances where
legislative power is not extended to the detriment of the other branches. In Morrison
v. Olson, for instance, the Court addressed the constitutionality of the independent
counsel statute. Specifically, Congress provided for the appointment of an
independent counsel, charged with the investigation of government officials suspected
of illegal activity, as well as for their subsequent prosecution. As passed by121
Congress, the statute further provided that an independent counsel “may be removed
from office, other than by impeachment and conviction, only by the personal action
of the Attorney General and only for good cause, physical disability, mental
incapacity, or any other condition that substantially impairs the performance of such122
independent counsel’s duties.”
It was argued that the removal provision violated the separation of powers
doctrine by interfering with the President’s removal power. In its disposition of the
issue, the Court distinguished Morrison from Bowsher v. Synar, explaining that
whereas Congress had usurped executive branch authority in Bowsher by retaining
control over the removal of the Comptroller General, the independent counsel statute
belied no such congressional intent and, in fact, placed “removal power squarely in123
the hands of the Executive Branch.” This was significant in that while the statute
impinged upon the free exercise of executive power, such limitation was necessary to
ensure the independence of the office of the independent counsel, so as to avoid what
Congress perceived as possible conflicts of interest in Department of Justice

The Court of Appeals for the District of Columbia had, shortly prior to Hechinger,120
addressed a similar question regarding impermissible congressional influence outside of the
legislative branch. In FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C.. Cir. 1993), cert.
dismissed, 115 S.Ct. 537 (1994), the court deemed unconstitutional a provision of the Federal
Election Campaign Act, which mandated that two Members of Congress were to serve on the
Federal Election Commission “ex officio and without the right to vote.” In rejecting arguments
that the membership requirement was permissible in that it provided for an advisory and
informational role, the court explained that the purpose of the membership requirement was
to influence the Commission by placing congressional agents “beyond the legislative sphere,”
in violation of the separation of powers doctrine.

487 U.S. 654, 660 (1988).121

Id. at 663.122
Id. at 686.123

enforcement policy. Accordingly, the Court determined that the doctrine had not124
been violated, as the statute did not usurp the removal power of the executive branch.
Rather, the statute protected the independence of the office while imbuing the
Attorney General with sufficient authority to protect the “President’s ability to125
perform his constitutional duty.”
From these decisions, it is apparent that the doctrine was carefully crafted to
confine Congress to its legislative role. As has been shown, the separation of powers
principle, as delineated in the Constitution, prevents congressional attempts to enforce
the laws which it enacts, and prohibits interference with the President’s power of
appointment or removal. This dynamic is further evidenced in the judiciary’s refusal126
to grant standing to individual Members of Congress wishing to pursue declaratory
or injunctive relief for alleged executive branch failings in enforcing laws pursuant to
legislative intent. However, either House of Congress, as well as individual127
Members, may have standing to challenge executive encroachment upon the
legislative functions of Congress. Further illustrating the doctrine’s focus on checks128
and balances, these limitations are also offset by the ability of Congress to investigate

Id. at 693.124
Id. at 691. In cases employing such functional reasoning, the Court utilizes the balancing125
test formulated in Nixon v. Administrator of General Services, 433 U.S. 425 (1977). There,
the Court explained that in determining whether a particular Act "disrupts the proper balance
between the coordinate branches," the inquiry should focus on the extent to which it impinges
upon a core function of a branch, interfering with accomplishment of a constitutionally
assigned function. Id. at 443. It is only upon ascertaining the potential for such infringement
that the Court will then weigh the impact of the disruption to determine whether it is justified
by an "overriding need to promote objectives within the constitutional authority of Congress."
Id. at 443.
See note 89 and accompanying text, supra.126
See, e.g., Raines v. Byrd, 521 U.S. 811 (1997); Moore v. United States House of127
Representatives, 733 F.2d 946 (D.C. Cir. 1984), cert. denied, 469 U.S. 1106 (1985);
Harrington v. Bush 553 F.2d 190 (D.C. Cir. 1977).
See Barnes v. Kline, 479 U.S. 361 (1987). In Barnes, the Supreme Court declared that the128
issue of whether particular Members of Congress had standing to challenge a presidential
pocket veto was moot, as the bill had expired by its own terms. Id. at 364-365. However,
Justice Stevens and Justice White dissented, arguing that the Members of Congress possessed
the same interest in obtaining a ruling on the merits as they did prior to the bill’s expiration.
Id. at 365. Specifically, the dissenters argued that there was a significant possibility that
Members of Congress did possess standing in such a situation. Id. The issue of standing was
revisited in Raines v. Byrd, 521 U.S. 811 (1997) where individual Members of Congress who
had voted against the Line Item Veto Act brought suit alleging that the Act expanded the
power of the President in violation of the separation of powers doctrine. See Supra, note 71,
and accompanying text (discussing Line Item Veto Act). The Court denied the Members
standing, explaining that they had “alleged no injury to themselves as individuals,” and that
the supposed institutional injury caused by the Act was “wholly abstract and widely
dispersed.” Raines, 521 U.S. at 821. Justice Stevens, echoing his dissent in Barnes,
maintained, along with Justice Breyer, that the Members did indeed possess standing. Id. at


and oversee execution of the laws by the executive. In turn, congressional oversight129
power is circumscribed in certain instances by the executive privilege doctrine, which
allows the executive branch to maintain the confidentiality of records and documents
under certain circumstances.130
C. Judicial Infringement and Aggrandizement.
In addition to delineating the scope of congressional and executive power, the
Constitution also protects and prescribes the functions of the judicial branch in
relation to the executive and legislative bodies. Indeed, the constitutional separation
of powers serves both to protect the core functions of the judiciary, and to prevent
judicial review of matters outside its purview.
Regarding matters of jurisdiction, the separation of powers doctrine has served
to provide Congress with a degree of control over the Judicial Branch, while
preventing the exercise of excessive power over the federal courts. In Ex Parte
McCardle, for instance, the Supreme Court had exercised jurisdiction over a habeas
corpus proceeding pursuant to an Act passed in 1867. While the case was pending,131
Congress amended the Act, repealing the provision which allowed for an appeal from
the judgment of a circuit court to the Supreme Court, and further repealed the132
jurisdiction of the Supreme Court to hear any such cases. Pursuant to the
congressional amendment, the Supreme Court dismissed the appeal, declaring that
there was no question that the repealing of the Act had stripped it of jurisdiction,
prohibiting further consideration of the case. Specifically, the Court explained that
"jurisdiction is power to declare the law, and when it ceases to exist, the only function
remaining to the court is that of announcing the fact and dismissing the cause." 133
Tempering this congressional authority, however, is the maxim that Congress
may not require "the federal courts to exercise 'the judicial power of the United
States,' in a manner repugnant to the text, structure, and traditions of Article III."134
As such, in United States v. Klein, the Supreme Court struck down a reconstruction
statute mandating that no presidential pardon could be introduced or considered in135
evidence to support a claim for the return of confiscated property. The statute in
question also established that proof of loyalty was to be determined by congressional
enactment, and ordered the Supreme Court to dismiss on appeal, for want of
jurisdiction, cases which employed other criteria. Finally, the statute declared that a
presidential pardon was to be treated as conclusive evidence that a claimant had aided

See, e.g., McGrain v. Daugherty, 273 U.S. 135 (1927); Watkins v. United States, 354 U.S.129

178, 187 (1957).

See, e.g., Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974).130

74 U.S. 506 (1868).131

Id. at 508.132
Id. at 514.133
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995) (quoting U.S. Const. art. III, §1.134
United States v. Klein, 80 U.S. 128 (1872).135

the rebellion, and that any cases predicated upon such a pardon were to be dismissed
for lack of jurisdiction.
In its consideration of the statute, the Supreme Court acknowledged Congress'
authority over the creation and jurisdiction of inferior federal courts, as well as its
power to make exceptions to the appellate jurisdiction of the Supreme Court.136
However, the Court determined that the statute withheld appellate jurisdiction only
"as a means to an end." Determining that the statute essentially "prescribe[d] a rule137
for the decision of a cause in a particular way," the Supreme Court struck down the
provisions. In particular, the Court explained that mandating the effect of evidence
in a case was outside the scope of congressional authority to "make exceptions and
prescribe regulations to the appellate power." By enacting such a statue, according
to the Court, Congress had "inadvertently passed the limit which separates the
legislative from the judicial power." 138
The separation of powers doctrine was again employed by the Supreme Court
in Plaut v. Spendthrift Farm, Inc., to strike down a statute which encroached upon
the power of the judiciary under Article III. Specifically at issue was §27A(b) of the139
Securities Exchange Act of 1934, which required federal courts to reopen final
judgments in private civil actions under §10(b) of the Act. Noting that "Article III140
establishes a "judicial department' with the 'province and say what the law
is' in particular cases and controversies," the Court determined that the Judicial
Branch possesses authority under the Constitution to rule on cases "subject to review
only by superior courts in the Article III hierarchy." Central to this authority,141
according to the Court, is the understanding that a decision resolves a case
conclusively, as an inherent aspect of judicial power is the ability to render dispositive
judgments. Upon noting this principle, the Court determined that Congress had
violated the separation of powers doctrine "by retroactively commanding the federal142
courts to reopen final judgments."
In addition to protecting the rights of the legislative and judicial branches in the
jurisdictional context, the separation of powers doctrine has also been integral in
establishing the extent to which judicial and legislative authority may be intermingled.
In Mistretta v. United States, for instance, the Court addressed the constitutionality
of the United States Sentencing Commission and its congressionally delegated power
to issue sentencing guidelines. The Commission was comprised of seven143
presidentially appointed members, three of whom were to be sitting federal judges,

Id. at 145.136
Id. at 145.137
Id. at 146.138

514 U.S. 211 (1995).139

Id. at 213.140
Id. at 218-219.141
Id. at 219.142

488 U.S. 361, 397 (1989).143

chosen from a list submitted by the Judicial Conference. A key issue centered on144
whether Congress was fostering judicial encroachment upon the executive branch by
delegating to a Commission, comprised in part by sitting federal judges, the power to
establish sentencing guidelines. Acknowledging that executive or administrative145
duties may not generally be imposed on the Judicial Branch, the Court clarified this
rule, noting that nonadjudicatory responsibilities may be assumed by the Judiciary in
certain instances. Specifically, the Court explained that rulemaking is not a146
"function exclusively committed to the Executive Branch," and may be assigned to the147
Judicial Branch when "appropriate to the central mission of the Judiciary."
Having explained the basis for judicial rulemaking, the Court found “that the role
of the Commission in promulgating guidelines for the exercise of that judicial function
bears considerable similarity to the role of this Court in establishing rules of procedure
under the various enabling acts.” The import of this observation was that the148
Commission’s functions were roughly analogous to the pre-existing role of the
judiciary in creating procedural rules. The Court further found that the function of the
commission was intimately related to the traditional duty and power of judges to hand
down appropriate sentences in individual cases and to "determine the sentencing
factors to be applied in any given case." Accordingly, the Court held that the149
Commission’s activities were characteristic of the “acknowledged mission of the
Judicial Branch,” and did not dilute the power of the executive or legislative
branches. As such, the Court determined that the dynamics of the Commission150
were not violative of the separation of powers doctrine.
Conversely, this pragmatic approach has also been used to justify activity which
could be construed as legislative encroachment upon the judicial sphere. In
Commodity Futures Trading Commission v. Schor, the Court addressed provisions
in the Commodity Exchange Act which gave the Commodity Futures Trading
Commission the power to exercise judicial authority. Specifically, Congress, in
establishing the Commission, gave it broad authority to implement the Act.
Accordingly, in an effort to ensure efficient resolution of disputes, the Commission
established regulations imbuing it with the power to rule on counterclaims arising151
from state law claims. Explaining that the proper inquiry should center on whether
the regulations usurped “essential attributes of judicial power,” as well as the factors
which led Congress to authorize such a delegation, the Court ruled that the
Commission’s ability to adjudicate counterclaims did not constitute a sufficient
encroachment so as to violate the separation of powers doctrine. Vital to this

Id. at 368, 383-384.144
Id. at 368.145
Id. at 385-386.146
Id. at 388.147
Id. at 391.148
Id. at 390. 149
Id. at 391.150

478 U.S. 833, 857 (1986).151

conclusion was the fact that the Commission’s jurisdiction was limited, in that it
respected the boundaries of core judicial functions, and allowed for jurisdiction by a
federal district court.152
While the aforementioned cases illustrate an expansive approach to effective and
pragmatic interaction between the judicial and legislative branches, the Supreme Court
has acknowledged limitations upon the power of the judiciary to review certain
congressional and executive acts. In Marbury v. Madison, the Court first originated
the political question doctrine, noting that “questions in their nature political, or which
are, by the Constitution and laws, submitted to the executive, can never be made in
this court.” The modern concept of the doctrine was delineated in Baker v. Carr,153
where the Court explained that a political question adheres when an issue is
demonstrably committed to a political body by the text of the Constitution, where
effective judicial standards are absent, where a non-judicial policy determination is
necessary for disposition, where the Court’s decision of an issue would impinge upon
the respect owed to the other branches, where unique circumstances call for
adherence to a previously made political decision, or, finally, where differing opinions
from various departments could lead to confusion and embarrassment.154
Applying these principles to a case involving an appeal by an impeached federal
judge, the Supreme Court elaborated upon the parameters of judicial review.
Specifically, in Nixon v. United States, the Court was asked to consider whether it
was constitutional for the Senate to employ a special trial committee in impeachment
proceedings, as opposed to conducting a full trial before the entire Senate. The155
argument before the Court was that the Senate rule authorizing the use of trial
committees was in violation of the Article I requirement that the full Senate “try”
impeachments. The Court determined that the term “try” did not constitute an156
“implied limitation on the method by which the Senate might proceed in trying
impeachments,” and, furthermore, lacked “sufficient precision to afford any judicially
manageable standard of review of the Senate’s actions.” This was especially so in157
light of the express limitations of the Impeachment Trial Clause requiring that
Members act under oath, that the Chief Justice preside over trials of the President, and158
that conviction rest upon a two-thirds vote.
With this understanding of the clause, the Court stated that judicial review would
be inappropriate, as it would conflict with the Framers' intent to vest impeachment
trial power in the Senate. Furthermore, the Court explained that judicial review would
upset the checks and balances dynamic, which, in the form of impeachment, serves as

Id. at 853.152

5 U.S. 137, 170 (1803).153

369 U.S. 186, 217 (1962).154

Nixon v. United States, 506 U.S. 224, 228 (1993).155
U.S. Const. art. I, § 3, cl. 6.156
Nixon, 506 U.S. at 230.157

the only legislative check on the judiciary. Finally, the Court deemed such a159
question non-justiciable, as review thereof would result in a “lack of finality and a
difficulty in fashioning relief.” 160
The checks and balances concept is further illustrated in United States v. Munoz-
Flores, where the Court determined that the judicial branch possesses authority under
the constitutional separation of powers doctrine to review Origination Clause
issues. In Munoz-Flores, the Court addressed the argument that the order of a161
federal magistrate requiring the respondent, convicted of two misdemeanor offenses,
to pay an assessment to the Crime Victims Fund as established by the Victims of
Crime Act of 1984 violated the Origination Clause of the Constitution. Specifically,
the argument centered on the assertion that as the assessment provision had originated
in the Senate, it violated the Origination Clause requirement that “all Bills for raising
revenue shall originate in the House of Representatives.” 162
Prior to addressing the merits of the argument, the Court responded to assertions
that the separation of powers doctrine precluded judicial review of Origination Clause
conflicts. The government argued that the question was outside the scope of review,
as the House possessed the ability to protect its institutional interests by refusing to
pass a bill which it felt infringed upon the Origination Clause. The government also
maintained that review was inappropriate, as compliance with the assessment
provision would not significantly affect individual rights. Noting that neither of163
these arguments was sufficient to trigger application of the political question doctrine,
the Court first addressed the government’s argument regarding the asserted preclusive164
effect of House inaction. Explaining that many separation of powers cases deal with
circumstances where the branch whose power has been appropriated “has both the
incentive to protect its prerogatives and institutional mechanisms,” the Court stated
that the House’s ability to refuse to pass a bill does not deprive the Court of the
power, or absolve it of its responsibility, to review the constitutionality of
congressional enactments. Accordingly, the Court held that “the fact that one165
institution of Government has mechanisms available to guard against incursions into
its power by other governmental institutions does not require that the judiciary

Id. at 234-235.159
Id. at 236.160
United States v. Munoz-Flores, 495 U.S. 385 (1990).161
Id. at 388; U.S. Const. art. I, § 7.162

495 U.S. at 392.163

Id. Specifically, the Court explained that neither argument met the factors delineated in164
Baker v. Carr, 369 U.S. 186 (1962), necessary for application of the political question
doctrine. The Court noted that the government’s argument essentially hinged on the
proposition that judicial resolution of Origination Clause challenges would “entail a
substantial lack of respect for the House,” a factor irrelevant under the political question
doctrine. As such, the Court dismissed calls for its application. Id.
Id. at 392., discussing Mistretta v. United States, 488 U.S. 361 (1989); Morrison v. Olson,165

487 U.S. 654 (1988); INS v. Chadha, 462 U.S. 919 (1983).

remove itself from the controversy by labeling the issue a political question.”166
Turning to the individual rights argument, the Court stated that the political question
doctrine was not implicated, as the identity of a litigant was irrelevant to its focus on
restraining the judiciary from interfering in the business of the other branches.167
Furthermore, the Court explained that the government’s assertion that Origination
Clause compliance was irrelevant to ensure individual rights was incorrect.
Specifically, the Court explained that the separation of powers doctrine was designed
to secure liberty, regardless of whether the activity in question related to interbranch168
activity or activity within the legislative branch itself. Accordingly, the Court
determined that it possessed constitutional authority to review the Origination Clause
issue. 169
D. Judicial Apprehension in Relation to Interbranch Conflicts.
Potential separation of powers conflicts often adhere to statutes enacted by
Congress, particularly in the executive-legislative relations context. The effect of such
legislation is readily apparent in cases such as Buckley v. Valeo and Bowsher v. Synar,
discussed above. Given that a wide body of statutory enactments raise potentially
serious separation of powers issues, the Supreme Court has traditionally engaged in
a practice of statutory interpretation which avoids constitutional conflicts to as great
a degree as possible.
Specifically, the Court has explained that “when the validity of an act of
Congress is drawn in question, and even if a serious doubt of constitutionality is
raised, it is a cardinal principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the question may be avoided.”170
Furthermore, the Court has deemed this approach applicable so long as such
construction would not be “plainly contrary to the intent of Congress.” The Court171
has explained that such an approach appreciates the congressional, as well as the
judicial, responsibility to uphold the Constitution. Finally, the Court has declared172
this principle to carry special weight in the separation of powers context.173

Munoz-Flores, 495 U.S. 385 at 393.166
Id. at 394.167
Id. at 394-396.168
Id. at 396. The Court, nonetheless, concluded that the assessment was constitutional, as169
revenue bills, for Origination Clause purposes, were “those that levy taxes in the strictest
sense of the word,” and not those, like the assessment, which incidentally create revenue. Id.
at 397, citing Twin City Bank v. Nebeker, 167 U.S. 196, 202 (1897) (citing 1 J. Story,
Commentaries on the Constitution §880, pp. 610-611 (3d ed. 1858)).
Crowell v. Benson, 285 U.S. 22, 62 (1932).170
Edward J. Debartolo Corp. v. Florida Gulf Coast Building & Construction Trades171
Council, 485 U.S. 568, 575 (1988).
Public Citizen v. United States Department of Justice et al., 491 U.S. 440, 466 (1989)173
(discussing American Foreign Service Assn. v. Garfinkel, 490 U.S. 153, 161 (1989) (per

The Court applied this principle in Public Citizen v. United States Dep’t of
Justice, dealing with the Federal Advisory Committee Act (FACA). FACA was
created to minimize the use of federal advisory committees, to ensure that they be
created only when necessary, and to provide for their rapid termination upon174
completion of their goals. To this end, FACA provides for the establishment of
administrative guidelines and controls over advisory committees, as well as for the
public disclosure of committee meetings and records. At issue was whether FACA175
applied to the use of the American Bar Association’s Standing Committee on Federal
Judiciary for advice regarding potential nominees for federal judgeships. If applicable,
it was argued, FACA would conflict with the President’s appointment power, raising
significant doubts as to the constitutionality of the Act under the separation of powers
doctrine. 176
Noting the importance of the “cardinal principle” of statutory construction, the
Court cautioned that it could not “press statutory construction ‘to the point of
disingenuous evasion,’ even to avoid a Constitutional question." Following this177
proviso, the Court determined that the prior regulatory scheme and the legislative
history of the Act revealed the “Congress probably did not intend to subject the ABA
Committee to FACA’s requirements when the ABA Committee offers potential
advice regarding presidential appointments to the federal bench.” Given this178
analysis, the Court held that as FACA did not show a clear congressional intent to
include the ABA Committee, “sound sense” counseled deference to the “rule of
caution.” Accordingly, the Court ultimately held that FACA was inapplicable,179
avoiding a separation of powers conflict.
The Court applied the same approach in Franklin v. Massachusetts. At issue180
were provisions of the Administrative Procedure Act authorizing the review of
determinative agency actions. The separation of powers inquiry focused on whether181
the Act authorized review of presidential action for abuse of discretion. While the
Act specifically exempted Congress, the courts, territories of the United States, and
the District of Columbia from review, no express provisions removed the President
from its ambit. Despite the negative implication that presidential actions are covered
under the Act arising from the express exemption of the other bodies, the Court ruled
that the scope of the statute did not include presidential action. Specifically, the Court


491 U.S. 440, 446 (1989).174

Id. at 443.176
Id. at 467, quoting United States v. Locke, 471 U.S. 84, 96 (1985) (quoting Moore Ice177
Cream Co. v. Rose, 289 U.S. 373, 379 (1933)).

491 U.S. 440 at 467.178

Id. at 467.179

505 U.S. 788 (1992).180

Id. at 800-801.181

explained that “out of respect for the separation of powers and the unique
constitutional position of the President,” it “would require an express statement by
Congress before assuming it intended the President’s performance of his statutory
duties to be reviewed for abuse of discretion.” Since the Act did not expressly182
provide for review of the President’s actions, the Court held that it must presume such
actions were not subject to its requirements.183
Judicial reticence in ruling on direct conflicts of constitutional authority between
the legislative and executive branches is also evident in the executive privilege
context. In United States v. American Telephone & Telegraph Co., for instance, a
subcommittee of the House Interstate and Foreign Commerce Committee subpoenaed
documents from AT&T in an effort to ascertain whether legislation was needed to
curb alleged abuses of power in the authorization of warrantless wiretaps conducted
for “asserted national security purposes.” The Executive Branch argued that the184
requested documents contained sensitive intelligence information, the disclosure of
which could compromise national security. When negotiations between the Justice
Department and Subcommittee Chairman John Moss proved unsuccessful, the Justice
Department sued to enjoin AT&T from complying with the subpoena, and the
Subcommittee Chairman intervened as a defendant. 185
In its initial consideration of the case, the Court of Appeals for the District of
Columbia held that it was appropriate to direct the parties to continue settlement
negotiations, rather than to decide the “nerve-center constitutional questions” raised
by the conflict between the right of the Executive Branch to protect national security
information and the authority of the Legislative Branch to investigate and acquire
information by subpoena. When further negotiation was not successful, the court186
of appeals again considered the issue, and again refrained from “a decision upholding
either of the claims of absolute authority.” Instead, the court mandated an187
information sharing procedure tailored to the concerns of both branches, eventually
leading to the settlement of the conflict. 188
Judicial Branch refusal to resolve such direct conflicts was again displayed in
United States v. House of Representatives. There, the United States District Court for
the District of Columbia was faced with a suit brought by the Department of Justice
to determine whether the head of the Environmental Protection Agency (EPA) was

Id. at 800-801.182
Id. at 801.183
United States v. American Telephone & Telegraph, 567 F.2d 121, 123 (D.C. Cir. 1977).184
Id .185
United States v. American Telephone & Telegraph, 551 F.2d 384, 394-395 (D.C. Cir186


United States v. American Telephone & Telegraph, 567 F.2d at 123.187
Id. at 133.188

justified in withholding certain documents under a claim of executive privilege.189
Noting its “duty to avoid unnecessarily deciding constitutional issues,” the district
court determined that resolution of the executive privilege claim was not necessary,
as the EPA Administrator was not a defendant in any legal action by Congress.190
Accordingly, the district court sought to “maintain the delicate balance of powers
among the powers established by the Constitution” by prevailing upon the parties to
settle the conflict without further judicial involvement.191
From the above analysis, it is evident that the separation of powers doctrine has
played an extremely significant role in defining the scope of legislative, judicial, and
executive power and responsibility. The Framers' desire for an efficient governmental
structure, which would serve to secure liberty and prevent the tyrannical exercise of
power, led to the development of a tripartite structure which bestows power upon the
separate branches of government according to their constitutionally defined roles.
While this principle has served to invalidate and block action by the respective
branches which impinges upon a core function of the other, the hybrid doctrine
crafted by the Framers avoids the problems inherent in mere “parchment barriers.”192
As noted by Madison, a “more adequate defense is indispensably necessary” to guard
against branch encroachment and enable efficient governance. Accordingly, the 193
Supreme Court, in adhering to this maxim, has adopted both formalist and functional
approaches in dealing with separation of powers issues, without adopting either as an
exclusive analytical rubric. Rather, while the Court has often taken a formalist stance
in situations where an essential constitutional function of a branch is impinged, it has
also employed functionalist analysis in recognizing the need for efficient and effective
government, as achieved through a sharing of tasks among the branches. This checks
and balances structure, as formulated by the Framers and enforced by the courts, has
served to protect the independence and equality of the three branches, while
permitting certain functions to remain interdependent, ensuring a workable

United States v. House of Representatives, 556 F.Supp. 150, 152 (D.D.C. 1983).189
Id. at 152-153, citing United States v. Rumely, 345 U.S. 41 (1952).190
United States v. House of Representatives, 556 F.Supp. at 152-153.191
The Federalist Papers, No. 48, at 308-309 (J. Madison).192