ArtI.S1.3.2 Functional and Formalist Approaches to Separation of Powers

Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Throughout the Nation’s history, questions have arisen on how to apply the separation of powers doctrine. Since 1976, the Supreme Court has curtailed congressional discretion to structure the National Government when the Court has deemed such discretion to violate the separation of powers.1 For example, in Bowsher v. Synar, the Court found unconstitutional a congressional scheme to provide for a relatively automatic deficit-reduction process pursuant to the Balanced Budget and Emergency Deficit Control Act of 1985 (Gramm-Rudman-Hollings Act)2 because the Act required the critical involvement of an officer with significant legislative ties.3 In Immigration & Naturalization Service v. Chadha, moreover, the Court found Congress’s use of legislative vetoes unconstitutional on separation of powers grounds.4 And in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., the Court held that Congress vesting broad judicial powers to handle bankruptcy cases in officers not possessing security of tenure and salary violated separation of powers principles.5 The Court, however, sustained Congress’s establishment of a process by which independent special prosecutors could investigate and prosecute cases of alleged corruption in the Executive Branch in Morrison v. Olson.6

In ruling on separation of powers questions, the Supreme Court has used two different approaches: formalist and functionalist. The Court’s stricter formalist approach emphasizes the need to maintain three distinct branches of government by drawing bright lines among branches to reflect differences in legislating, executing, and adjudicating.7 In contrast, the Court’s functional approach emphasizes each branch’s core functions and asks whether the challenged action threatens the essential attributes of the legislative, executive, or judicial function or functions.8 Under this approach, the Court’s rulings have provided flexibility to the branch if there is little risk that the challenged action will impair a core function. If there is a significant risk that the action will impair a branch’s core function, courts will consider whether there is a compelling reason for the action.9

In Immigration & Naturalization Service v. Chadha, the Supreme Court used the formalist approach to invalidate Congress’s legislative veto by which it could set aside an Attorney General determination to suspend deportation of an alien pursuant to a delegation of power from Congress.10 Central to Chadha were two conceptual premises. First, the action Congress had taken was legislative because it had the purpose and effect of altering the legal rights, duties, and relations of persons outside the Legislative Branch, and thus Congress had to comply with the Constitution’s bicameralism and presentment requirements.11 Second, the Attorney General was performing an executive function in implementing the congressional delegation, and the legislative veto was an impermissible interference in the law’s execution. Congress could act only by legislating to change its delegation’s terms.12

Subsequently, in Bowsher v. Synar, the Court held that Congress could not vest even part of a law’s execution in the Comptroller General because the Comptroller General was an officer who was subject to removal by Congress. Allowing Congress to vest execution of the laws in the Comptroller General would enable Congress to play a role in executing the laws because Congress could remove the Comptroller General if Congress was dissatisfied with how the Comptroller General was implementing its authority.13 The Court noted that Congress could act only by passing laws.14

On the same day that the Court decided Bowsher through a seemingly formalist analysis, the Court appeared to use the less strict, functional approach in Commodity Futures Trading Commission (CFTC) v. Schor to resolve a challenge to a regulatory agency’s power to adjudicate a state common law issue—the type of issue that the Court, in a formalist plurality opinion with a more limited concurrence, had denied to a non-Article III bankruptcy court in Northern Pipeline.15 Sustaining the CFTC’s power, the Court emphasized “the principle that ‘practical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III.’” 16 The Court held that, in evaluating such a separation of powers challenge, the Court had to consider the extent to which the “essential attributes of judicial power” were reserved to Article III courts and the extent to which the non-Article III entity exercised the jurisdiction and powers normally vested only in Article III courts; the origin and importance of the rights to be adjudicated; and the concerns that drove Congress to depart from Article III’s requirements.17 The Court distinguished Schor from Bowsher stating “[u]nlike Bowsher, this case [Schor] raises no question of the aggrandizement of congressional power at the expense of a coordinate branch.” 18 The test the Court used was a balancing one—whether Congress had impermissibly undermined the role of another branch without appreciable expansion of its own power.

While the Court has exercised some flexibility in using a formalist or functionalist analysis in separation of powers cases, it has generally applied a formalist approach when the Constitution clearly commits a function or duty to a particular branch and a functionalist approach when the constitutional text is indeterminate, thereby requiring the Court to assess the likelihood that a branch’s essential power would be impaired. For example, in Morrison v. Olson, the Court used a functionalist analysis to sustain Congress’s creation of an independent counsel.19 The independent-counsel statute, Title VI of the Ethics in Government Act,20 the Court emphasized, did “not involve an attempt by Congress to increase its own power at the expense of the Executive Branch” nor did it constitute a “judicial usurpation” of executive power.21 Moreover, the Court stated, the law did not “impermissibly undermine” Executive Branch powers, nor did it “disrupt the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions.” 22 The Court also acknowledged that the statute undeniably reduced executive control over what the Court had previously identified as a core executive function—executing laws through criminal prosecution—through its appointment provisions and its assurance of independence by limiting removal to a “good cause” standard.23 The Court noted the circumscribed nature of the reduction, the discretion of the Attorney General to initiate appointment, the limited jurisdiction of the counsel, and the power of the Attorney General to ensure that the laws are faithfully executed by the counsel.24 This balancing, the Court concluded, left the President with sufficient control to ensure his ability to perform his constitutionally assigned functions.25

Similarly, in Mistretta v. United States, the Court used a functionalist analysis when it upheld the constitutionality of the U.S. Sentencing Commission.26 Through the Sentencing Reform Act of 1984, Congress created the Sentencing Commission as an independent entity in the Judicial Branch to promulgate sentencing guidelines binding on federal judges when sentencing convicted offenders. Under the Act, the President appoints all seven Sentencing Commission members, three of whom have to be Article III judges, and he could remove any member for cause. Noting that the Court’s separation of powers jurisprudence is always animated by concerns over encroachment and aggrandizement, the Supreme Court stated: “we have not hesitated to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch.” 27 Thus, with regard to the discrete questions—the placement of the Commission, the appointment of the members, especially the service of federal judges, and the removal power—the Court carefully analyzed whether one branch had been given power it could not exercise, or had enlarged its powers impermissibly, and whether any branch would have its institutional integrity threatened by the structural arrangement.28

Notwithstanding Morrison and Mistretta, the Supreme Court continued to apply a formalist analysis in separation of powers cases. For instance, in its 1991 decision in Metropolitan Washington Airports Authority v. Citizens for the Abatement of Airport Noise,29 the Supreme Court applied a formalistic analysis, although the case appeared to involved a factual situation that could be resolved under Morrison and Mistretta's concern over Congress aggrandizing its powers. In Granfinanciera, S.A. v. Nordberg,30 the Court reasserted the fundamental holding of Northern Pipeline in a bankruptcy context, although the issue was the right to a jury trial under the Seventh Amendment rather than strictly a separation of powers question. And in Freytag v. Commissioner,31 the Court pursued a straightforward Appointments Clause analysis, informed by a separation of powers analysis, but not governed by it. Finally, in Public Citizen v. U.S. Department of Justice,32 Justice Anthony Kennedy, in a concurring opinion, would have followed the formalist approach, but explicitly grounded his concurrence in the distinction between an express constitutional vesting of power and implicit vesting of power.

The Supreme Court has also considered the separation of powers in standing cases. For instance, in Allen v. Wright,33 the Court viewed the standing requirement for access to judicial review as reflecting a separation of powers component—confining the courts to their proper sphere. In Lujan v. Defenders of Wildlife,34 moreover, the Court imported the Take-Care Clause, obligating the President to see to the faithful execution of the laws, into the standing analysis, creating a substantial barrier to congressional decisions to provide for judicial review of executive actions.

See Buckley v. Valeo, 424 U.S. 1, 109–43 (1976) (holding that Congress could not reserve to itself the power to appoint certain officers charged with enforcing a law). back
Pub. L. No. 99-177, 99 Stat. 1038. back
Bowsher v. Synar, 478 U.S. 714 (1986). back
462 U.S. 919 (1983). back
458 U.S. 50 (1982). back
487 U.S. 654 (1988). See also Mistretta v. United States, 488 U.S. 361 (1989). back
Chadha, 462 U.S. at 951 ( “The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power . . . must be resisted. Although not ‘hermetically’ sealed from one another, the powers delegated to the three Branches are functionally identifiable.” ). See also N. Pipeline Constr. Co., 458 U.S. at 64–66 (plurality opinion); Bowsher, 478 U.S. at 721–27. back
See, e.g., CFTC v. Schor, 478 U.S. 833 (1986). back
Schor, 478 U.S. 833; Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 587, 589–93 (1985). The Court first formulated this analysis in cases challenging alleged infringements on presidential powers, United States v. Nixon, 418 U.S. 683, 713 (1974); Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 442–42 (1977), but it subsequently turned to the stricter test. Schor and Thomas both involved provisions challenged as infringing on judicial powers. back
Chadha, 462 U.S. 919. back
Id. at 952. back
Id. back
Bowsher v. Synar, 478 U.S. 714, 726–27, 733–34 (1986). But see id. at 737 (Stevens, J., concurring) (suggesting a functionalist approach). back
Id. at 726–27, 733–34. back
Although the agency in Schor was an independent regulatory commission and the bankruptcy court in Northern Pipeline was either an Article I court or an adjunct to an Article III court, the Court did not rely on the characterization of the particular entity. The issue in each case was whether the judicial power of the United States could be conferred on an entity that was not an Article III court. back
CFTC v. Schor, 478 U.S. 833, 848 (1986) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 587 (1985)). back
Id. at 851. back
Id. at 856. back
The Appointments Clause ( U.S. Const. art. II, § 2) specifically provides that Congress may vest in the courts the power to appoint inferior officers (Morrison v. Olson, 487 U.S. 654, 670–77 (1988)), suggesting that, unlike Chadha and Bowsher, Morrison could be a textual commitment case. But the Court’s evaluation of the separation of powers issue in Morrison did not appear to turn on that distinction. Id. at 685–96. Nevertheless, this possible distinction may work against a reading of Morrison as a rejection of formalism when executive powers are litigated. back
28 U.S.C. § 591 et seq. back
Morrison, 487 U.S. at 694–95. back
Id. at 695 (quoting, respectively, Schor, 478 U.S. at 856 and Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 443 (1977)). back
Id. back
Id. at 696. back
Id. at 697. back
Mistretta v. United States, 488 U.S. 361 (1989). The Court acknowledged reservations with respect to the Commission’s placement as an independent entity in the Judicial Branch. Id. at 384, 397, 407–08. As in Morrison, Justice Antonin Scalia was the lone dissenter, arguing for a fairly rigorous application of separation of powers principles. Id. at 413, 422–27 (Scalia, J., dissenting). back
Id. at 382. back
Id. back
Metro. Wash. Airports Auth. v. Citizens for the Abatement of Airport Noise, 501 U.S. 252 (1991). back
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989). back
Freytag v. Commissioner, 501 U.S. 868 (1991). back
Public Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 467 (1989) (Kennedy, J., concurring). back
Allen v. Wright, 468 U.S. 737, 752 (1984). back
Lujan v. Defs. of Wildlife, 504 U.S. 555, 577 (1992). back