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

Significant change in the position of the Executive Branch respecting its position on separation of powers may be discerned in two briefs of the Department of Justice’s Office of Legal Counsel, which may spell some measure of judicial modification of the formalist doctrine of separation and adoption of the functionalist approach to the doctrine.1 The two opinions withdraw from the Department’s earlier contention, following Buckley v. Valeo, that the execution of the laws is an executive function that may be carried out only by persons appointed pursuant to the Appointments Clause, thus precluding delegations to state and local officers and to private parties (as in qui tam actions), as well as providing glosses on the Take Care Clause (Article II, § 3) and other provisions of the Constitution. Whether these memoranda signal long-term change depends on several factors, including whether they are adhered to by subsequent administrations.

In striking down the congressional veto as circumventing Article I’s bicameralism and presentment requirements attending the exercise of legislative power, the Court also suggested in INS v. Chadha2 that the particular provision in question, involving veto of the Attorney General’s decision to suspend deportation of an alien, in effect allowed Congress impermissible participation in execution of the laws.3 And, in Bowsher v. Synar,4 the Court held that Congress had invalidly vested executive functions in a legislative branch official. Underlying both decisions was the premise, stated in Chief Justice Burger’s opinion of the Court in Chadha, that “the powers delegated to the three Branches are functionally identifiable,” distinct, and definable.5 In a standing-to-sue case, Justice Scalia for the Court denied that Congress could by statute confer standing on citizens not suffering particularized injuries to sue the federal government to compel it to carry out a duty imposed by Congress, arguing that to permit this course would be to allow Congress to divest the President of his obligation under the Take Care Clause and to delegate the power to the judiciary.6 On the other hand, in the independent counsel case, although acknowledging that the contested statute restricted a constitutionally delegated function (law enforcement), the Court upheld the statute, using a flexible analysis that emphasized that neither the legislative nor the judicial branch had aggrandized its power and that the incursion into executive power did not impermissibly interfere with the President’s constitutionally assigned functions.7

At issue in Synar were the responsibilities vested in the Comptroller General by the “Gramm-Rudman-Hollings” Deficit Control Act,8 which set maximum deficit amounts for federal spending for fiscal years 1986 through 1991, and which directed across-the-board cuts in spending when projected deficits would exceed the target deficits. The Comptroller was to prepare a report for each fiscal year containing detailed estimates of projected federal revenues and expenditures, and specifying the reductions, if any, necessary to meet the statutory target. The President was required to implement the reductions specified in the Comptroller’s report. The Court viewed these functions of the Comptroller “as plainly entailing execution of the law in constitutional terms. Interpreting a law . . . to implement the legislative mandate is the very essence of ‘execution’ of the law,” especially where “exercise [of] judgment” is called for, and where the President is required to implement the interpretation.9 Because Congress by earlier enactment had retained authority to remove the Comptroller General from office, the Court held, executive powers may not be delegated to him. “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.” 10

The Court in Chadha and Synar ignored or rejected assertions that its formalistic approach to separation of powers may bring into question the validity of delegations of legislative authority to the modern administrative state, sometimes called the “fourth branch.” As Justice White asserted in dissent in Chadha, “by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments . . . . There is no question but that agency rulemaking is lawmaking in any functional or realistic sense of the term.” 11 Moreover, Justice White noted, “rules and adjudications by the agencies meet the Court’s own definition of legislative action . . . .” 12 Justice Stevens, concurring in Synar, sounded the same chord in suggesting that the Court’s holding should not depend on classification of “chameleon-like” powers as executive, legislative, or judicial.13 The Court answered these assertions on two levels: that the bicameral protection “is not necessary” when legislative power has been delegated to another branch confined to implementing statutory standards set by Congress, and that “the Constitution does not so require.” 14 In the same context, the Court acknowledged without disapproval that it had described some agency action as resembling lawmaking.15 Thus Chadha may not be read as requiring that all “legislative power” as the Court defined it must be exercised by Congress, and Synar may not be read as requiring that all “executive power” as the Court defined it must be exercised by the executive. A more limited reading is that when Congress elects to exercise legislative power itself rather than delegate it, it must follow the prescribed bicameralism and presentment procedures, and when Congress elects to delegate legislative power or assign executive functions to the executive branch, it may not control exercise of those functions by itself exercising removal (or appointment) powers.

A more flexible approach was followed in the independent counsel case. Here, there was no doubt that the statute limited the President’s law enforcement powers. Upon a determination by the Attorney General that reasonable grounds exist for investigation or prosecution of certain high ranking government officials, he must notify a special, Article III court which appoints a special counsel. The counsel is assured full power and independent authority to investigate and, if warranted, to prosecute. Such counsel may be removed from office by the Attorney General only for cause as prescribed in the statute.16

, 101 Stat. 1293, 28 U.S.C. §§ 49, 591 et seq. The independent counsel was assuredly more free from executive supervision than other federal prosecutors. Instead of striking down the law, however, the Court carefully assessed the degree to which executive power was invaded and the degree to which the President retained sufficient powers to carry out his constitutionally assigned duties. The Court also considered whether in enacting the statute Congress had attempted to aggrandize itself or had attempted to enlarge the judicial power at the expense of the executive.17

Footnotes

1

Memorandum for John Schmidt, Associate Attorney General, from Assistant Attorney General Walter Dellinger, re: Constitutional Limitations on Federal Government Participation in Binding Arbitration (Sept. 7, 1995); Memorandum for the General Counsels of the Federal Government, from Assistant Attorney General Walter Dellinger, re: The Constitutional Separation of Powers Between the President and Congress (May 7, 1996). The principles laid down in the memoranda depart significantly from previous positions of the Department of Justice. For conflicting versions of the two approaches, see Constitutional Implications of the Chemical Weapons Convention: Hearings on the Constitution, Federalism, and Property Rights Before the Senate Judiciary Subcommittee, 104th Cong., 2d Sess. (1996), 11–26, 107–10 (Professor John C. Woo), 80–106 (Deputy Assistant Attorney General Richard L. Shiffrin).

2

462 U.S. 919 (1983).

3

Although Chief Justice Burger’s opinion of the Court described the veto decision as legislative in character, it also seemingly alluded to the executive nature of the decision to countermand the Attorney General’s application of delegated power to a particular individual. “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. The Court’s uncertainty is explicitly spelled out in Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991).

4

478 U.S. 714 (1986).

5

462 U.S. at 951.

6

Lujan v. Defenders of Wildlife, 504 U.S. 555, 576–78 (1992). Evidently, however, although Justices Kennedy and Souter joined this part of the opinion, id. at 579 (concurring in part and concurring in the judgment), they do not fully subscribe to the apparent full reach of Justice Scalia’s doctrinal position, leaving the position, if that be true, supported in full only by a plurality.

7

Morrison v. Olson, 487 U.S. 654 (1988). The opinion by Chief Justice Rehnquist was joined by seven of the eight participating Justices. Only Justice Scalia dissented. In Mistretta v. United States, 488 U.S. 361, 390–91 (1989), the Court, approving the placement of the Sentencing Commission in the judicial branch, denied that executive powers were diminished because of the historic judicial responsibility to determine what sentence to impose on a convicted offender. Earlier, in Young v. United States ex rel. Vuitton, 481 U.S. 787 (1987), the Court, in upholding the power of federal judges to appoint private counsel to prosecute contempt of court actions, rejected the assertion that the judiciary usurped executive power in appointing such counsel.

8

The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1038.

9

478 U.S. at 732–33.

10

478 U.S. at 734.

11

462 U.S. at 985–86.

12

462 U.S. at 989.

13

478 U.S. at 736, 750.

14

462 U.S. at 953 n.16.

15

462 U.S. at 953 n.16.

16

Pub. L. No. 95-521, title VI, 92 Stat. 1867, as amended by Pub. L. No. 97-409, 96 Stat. 2039, and Pub. L. No.

100-191

, 101 Stat. 1293, 28 U.S.C. §§ 49, 591 et seq.

17

Morrison v. Olson, 487 U.S. at 693–96. See also Mistretta v. United States, 488 U.S. 361, 380–84, 390–91, 408–11 (1989).