ArtII.S1.C1.6 Separation of Powers and Executive Branch Functions

Article II, Section 1, Clause 1:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

In his Commentaries on the Constitution of the United States, Justice Joseph Story noted the importance of an independent executive department to the separation of powers. He observed: “All America have at length concurred in the propriety of establishing a distinct executive department. The principle is embraced in every state constitution; and it seems now to be assumed among us, as a fundamental maxim of government, that the legislative, executive, and judicial departments are to be separate, and the powers of one ought not to be exercised by either of the others.” 1

The Supreme Court has referred to principles of separation of powers when examining congressional actions that may infringe the President’s exercise of executive power. For instance, in 1983, the Court in INS v. Chadha2 struck down the congressional veto as circumventing Article I’s bicameralism and presentment requirements to exercise legislative power. In Chadha, the Court suggested that Congress, by providing itself with the ability to veto the Attorney General’s decision to suspend deportation of an alien, had enabled itself to participate impermissibly in executing the laws.3 Writing for the majority, Chief Justice Warren Burger observed that “the powers delegated to the three Branches are functionally identifiable.” 4 Under Chadha, when Congress exercises legislative power rather than delegates it, it must follow the prescribed bicameralism and presentment procedures.

In Bowsher v. Synar three years later,5 the Court held that Congress had unconstitutionally vested executive functions in a Legislative Branch official through the Gramm-Rudman-Hollings Deficit Control Act. The Gramm-Rudman-Hollings Deficit Control Act set maximum deficit amounts for federal spending and directed across-the-board cuts in spending when projected deficits would exceed the target deficits.6 Each fiscal year, the Comptroller General, who only Congress could remove, had to prepare a report identifying the reductions necessary to meet the deficit target, which the President had to implement. The Court stated: “Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law.” 7 Because Congress could remove the Comptroller General from office, it could not delegate executive powers to him. The Court stated: “By placing the responsibility for execution of the [Act] in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function.” 8

In Lujan v. Defenders of Wildlife, the Court held that Congress could not legislate to grant citizens not suffering particularized injuries standing to sue the federal government to compel its compliance with congressional mandates. Such a law, the Court reasoned, would allow Congress to transfer the President’s Take Care Clause duty to the Judiciary.9

The Court emphasized the importance of the separation of powers in Seila Law LLC v. Consumer Financial Protection Board (CFPB) in which the Court held that Congress encroached on Executive Branch powers when it limited the President’s ability to remove the head of an independent agency to “for cause” removal.10 In Seila, the Court noted that Congress had “vest[ed] significant governmental power in the hands of a single individual accountable to no one” 11 thereby violating the separation of powers.12 Similarly, in Collins v. Yellen, the Court ruled that Congress could not restrict the President’s authority to remove the director of the Federal Housing Finance Agency, which had a structure similar to the CFPB.13

3 Joseph Story, Commentaries on the Constitution of the United States § 1410 (1833). back
462 U.S. 919 (1983). back
The Court stated: “Disagreement with the Attorney General’s decision on Chadha’s deportation . . . involves determinations of policy that Congress can implement in only one way Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.” 462 U.S. at 954–55. See also Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991). back
Chadha, 462 U.S. at 951. back
478 U.S. 714 (1986) back
The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1037. back
478 U.S. at 732–33. back
Id. at 734. back
Lujan v. Defenders of Wildlife, 504 U.S. 555, 576–78 (1992). back
Seila Law LLC v. CFPB, No. 19-7, slip op. at 26 (U.S. June 29, 2020). back
Id. at 23. back
Id. at 27. back
Collins v. Yellen, No. 19-422(U.S. June 23, 2021). back