Separation of Powers (Update)

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During the 1990s, the Supreme Court attempted, in an unusual number of separation of powers cases, to give concrete meaning to that time-honored but abstract doctrine, only to retreat to other, more specific and definable constitutional provisions to resolve those cases.

The Court attempted a comprehensive definition of the doctrine in Morrison v. Olson (1988), in which it upheld the law establishing the independent counsel. A statute violates the doctrine, the Court said, in three circumstances: (1) if the statute involves an effort by Congress to increase its own powers at the expense of those of the executive branch, (2) if the law impermissibly undermines the executive power, and (3) if the law "disrupts the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions." Applying this standard, the Court found that the independent counsel law worked no impermissible interference with the President's authority in violation of the principle of separation of powers.

In mistretta v. united states (1989), the Court returned to the three principles in upholding the validity of the U.S. Sentencing Commission. In subsequent separation cases, the Court reiterated this three-part test but notably declined to use it as a basis for resolving the disputes at hand, looking instead to the Constitution's appointments clause.

Thus, in 1991 the Court held, in Freytag v. Commissioner of Internal Revenue, that the appointment of special trial judges by the chief judge of the Tax Court did not violate the appointments clause. In 1994 the Court held, similarly, in Weiss v. United States, that the clause was not violated by the appointment of military judges by the Judge Advocate General to serve on special and general courts martial. Finally, in Edmond v. United States (1997), the Court upheld the authority of the U.S. Secretary of Transportation to appoint civilian members of the U.S. Coast Guard Court of Appeals, again in the face of an appointments clause challenge.

Dissatisfaction with the independent counsel law resurfaced during the second term of President william j. clinton, when Kenneth Starr, an independent counsel appointed to investigate various alleged improprieties on the part of the President, recommended Clinton's impeachment. His report was referred under the law to the Committee on the Judiciary of the U.S. house of representatives. The document triggered substantial debate over the scope, expense, and politics of Independent Counsel Starr's investigation and, for only the third time in American history, presidential impeachment hearings.

One of the grounds claimed by Starr to represent an impeachable offense was that the President had allegedly committed perjury during a deposition in a civil sexual harassment case when he testified about his sexual conduct with White House intern Monica Lewinsky. In 1997, the President argued to the Supreme Court that the Constitution required that federal courts defer civil litigation arising out of pretenure conduct against a President until the end of his term. The ruling in clinton v. jones (1997) went against the President. The Court reviewed other instances in which "[s]itting Presidents have responded to court orders to provide testimony or other information" and concluded that "such interactions between the Judicial and Executive Branches can scarcely be thought a novelty." Like "every other citizen who properly invokes" a federal court's jurisdiction, the Court held that the sexual harassment plaintiff, Paula Jones, had a "right to an orderly disposition of her claims." Ultimately, after Jones continued to press the suit, the President settled out of court for $850,000. The Court in 1998 also rejected appeals by the Clinton administration directed at blocking the grand jury testimony of U.S. Secret Service agents and lawyers in the White House Counsel's office in proceedings involving the Starr investigation.

The extent to which separation of powers principles control the activities of administrative officials caused the Court to revisit immigration and naturalization service v. chadha (1983) in 1991. In Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise (1991), the Court held unconstitutional a law that gave power to a "Board of Review" (consisting of members of Congress) to veto decisions of the Washington, D.C., airport authority, an entity created by the laws of Virginia and the District of Columbia. Whether the Board of Review exercised executive or legislative power was irrelevant, the Court found; if the power was executive, the Constitution "does not permit Congress to exercise it," and if the power was legislative, the bicameralism and presentment requirements explained in Chadha were breached by the law.

The Chadha Court had insisted that the power to enact statutes may be exercised only "in accord with a single, finely wrought and exhaustively considered, procedure." This observation was recalled in perhaps the most important separation of powers case to be decided in recent years, Clinton v. City of New York (1998), which involved the constitutionality of the line-item veto. In the Line Item Veto Act of 1996, Congress enacted a provision that gave the President the power to "cancel in whole" any items of new spending or any "limited tax benefit" in newly enacted legislation. The President was required to notify Congress in a special message of each cancellation; if Congress, by a majority vote of each house (subject to possible presidential veto) disapproved the cancellation, the cancellation was rendered void.

This scheme, the Court held, ran contrary to the "finely wrought" procedure commanded by the Constitution in Article I, section 7, the same provision relied on by the Court in Chadha in invalidating the legislative veto. Whether the law in question "impermissibly disrupts the balance of powers among the three branches of government," the Court concluded, it was unnecessary to decide. Adissenting opinion by Justice stephen g. breyer, joined in part by Justices sandra day o'connor and antonin scalia, argued that "there is not a dime's worth of difference between Congress's authorizing the President to cancel a spending item, and Congress's authorizing money to be spent at the President's discretion. And the latter has been done since the founding of the nation."

As part of the litigation concerning the line-item veto, the Court had occasion to resolve a related separation of powers controversy that had divided lower courts since the 1970s—the issue of congressional standing. Raynes v. Baird (1997) held that members of Congress did not have a sufficiently personal stake in the validity of the hitherto unused line-item veto to establish standing to challenge its constitutionality.

Michael J. Glennon


Chemerinsky, Erwin 1997 Constitutional Law: Principles and Policies. New York: Aspen Law and Business.

Glennon, Michael 1990 Constitutional Diplomacy. Princeton, N.J.: Princeton University Press.

Raven -H ansen, Peter and Banks, William 1995 From Vietnam to Desert Shield: The Commander in Chief's Spending Power. Iowa Law Review 18:79–147.

Schoenbrod, David 1993 Power Without Responsibility. New Haven, Conn.: Yale University Press.

Stone, Geoffrey R.; Seidman, Louis M.; Sunstein, Cass R.; and Tushnet, Mark V. 1996 Constitutional Law, 3rd ed. New York: Aspen Law and Business.