no provision explicitly declaring that the powers of the three
of the federal government shall be separated. James Madison, in
original draft of what would become the Bill of Rights, included a
amendment that would make the separation of powers explicit, but his
was rejected, largely because his fellow members of Congress thought
separation of powers principle to be implicit in the structure of
under the Constitution. Madison's proposed amendment, they
would be a redundancy.
article of the
Constitution says "ALL legislative powers...shall be vested in a
The second article vests "the executive power...in a President."
The third article places the "judicial power of the United States in
Supreme Court" and "in such inferior Courts as the Congress...may
several goals. Separation prevents
of power (seen as the root of tyranny) and provides each branch with
to fight off encroachment by the other two branches. As James
argued in the Federalist Papers (No. 51), "Ambition must be made to
ambition." Clearly, our system of separated powers is not
to maximize efficiency; it is designed to maximize freedom.
of executive power have been articulated by past presidents. One
view, the "strong president" view, favored by presidents such as
Roosevelt essentially held that presidents may do anything not
prohibited by the Constitution. The other, "weak president" view,
favored by presidents such as Howard Taft, held that presidents may
exercise powers specifically granted by the Constitution or delegated
the president by Congress under one of its enumerated powers.
cases dealing with the breadth of executive power. Youngstown
Sheet & Tube Co. v Sawyer (1952) arose when President Harry
responding to labor unrest at the nation's steel mills during the
War, seized control of the mills. Although a six-member majority
of the Court concluded that Truman's action exceeded his authority
the Constitution, seven justices indicated that the power of the
is not limited to those powers expressly granted in Article II.
the Congress not impliedly or expressly disapproved of Truman's seizure
of the mills, the action would have been upheld.
President Harry Truman announcing the seizure of steel mills on April
Inland Steel president Clarence Randall responds to steel mill seizure
More v Regan (1981)
considered the constitutionality of executive orders issued by
Jimmy Carter directing claims by Americans against Iran to a
tribunal. The Court, using a pragmatic rather than literalist
found the executive orders to be a constitutional exercise of the
Article II powers. The Court noted that similar restrictions on
against foreign governments had been made at various times by prior
and the Congress had never in those incidents, or the present one,
its objection to the practice.
In INS v
the Court considered the constitutionality of "the legislative veto," a
commonly-used practice authorized in 196 different statutes at the
Legislative veto provisions authorized Congress to nullify by
a disapproved-of action by an agency of the executive branch.
contended that congressional action overturning an INS decision
his deportation constituted legislative action that failed to comply
the requirements for legislation spelled out in Article I, Section 7 of
the Constitution. The Court agreed.
Jadish Rai Chadha and family [NY
v Synar (1986),
the Court invalidated a provision of the Balanced Budget Act that
Charles Bowsher, as Comptroller General of the U.S., to order the
of funds appropriated for domestic or military use when he determined
federal budget was in a deficit situation. The Court concluded
allowing the exercise of this executive power by the Comptroller
an officer--in the Court's view--in the legislative branch, would be
essence, to permit a legislative veto."
considered the constitutionality of the "Independent Counsel" (or
prosecutor") provisions in the Ethics in Government Act. The
had considerable difficulty in identifying in which of the three
of government the independent counsel belonged. Justice
opinion for the Court in Morrison took a pragmatic view of
upholding the independent counsel provisions. Rehnquist noted
the creation of the independent counsel position did not represent an
by any branch to increase its own powers at the expense of another
and that the executive branch maintained "meaningful" controls over the
counsel's exercise of his or her authority. In an angry dissent,
Justice Scalia called the Court's opinion "a revolution in
law" and said "without separation of powers, the Bill of Rights is
Justice Scalia dissented again in Mistretta v U. S.(1989), a
upholding legislation which delegated to the seven-member United States
Sentencing Commission (a commission which included three federal
the power to promulgate sentencing guidelines.
PRIVILEGE AND IMMUNITIES
right of the President to withhold certain information sought by
branch of government, was first claimed by President Jefferson in
to a subpoena from John Marshall in the famous treason trial of Aaron
The Supreme Court's first major pronouncement on the issue, however,
not come until 1974 in United States v Richard Nixon. The
case involved the refusal of President Nixon to turn over to Watergate
Special Prosecutor Leon Jaworski several hours of Oval Office tapes
to concern the Watergate break-in and subsequent cover-up.
the Court unanimously concluded that the Constitution does indeed
an executive privilege, the Court said the privilege was "presumptive"
and not absolute. Balancing the interests in the Nixon
the Court found the privilege not to extend to the requested Watergate
President Nixon's attorney, James St. Clair,
the Watergate tapes
case before the U. S. Supreme Court
Finally, in Clinton
v Jones (1997), the Court rejected President Clinton's argument
the Constitution immunizes him from suits for money damages for
committed before assuming the presidency. The case arose when
Jones filed a suit alleging sexual harassment by Clinton in an
hotel room in 1991 while Clinton served as Governor of Arkansas.
|Executive Privilege and the Treason Trial
of Aaron Burr
In 1807, Chief Justice John Marshall sat as the
trial judge in the treason trial of former Vice President Aaron
Burr. Burr, who was accused of working with Spain to start a war
in the Southern territories and Texas (with the suggestion that he
would become the leader of a newly-created western empire), requested
that the court subpoena certain letters of Thomas Jefferson that might
demonstrate that his arrest was politically motivated. Marshall
issued the subpoena stating, "Courts should issue subpoenas based on
the character of the information sought, not the character of the
person who holds it." In letters to John Marshall, Thomas
Jefferson respectfully disagreed, but turned over the letters anyway,
thus avoiding a constitutional showdown. To read more about the
case, and to read Jefferson's letters to Marshall click on the
IMMUNITY UNDER THE SPEECH AND DEBATE CLAUSE
framers sought in various ways to guarantee the independence of each of
the three branches. The President was protected against criminal
prosecutions while in office, answerable only in an impeachment trial
a super-majority required to convict. Members of the federal
were given lifetime tenure, with a guarantee that their compensation
not be reduced. To ensure free discussion of controversial issues
in Congress, the framers immunized members of Congress from liability
statements made in House or Senate debate: for their "speech or
"shall not be questioned in any other place." (Link)
Senator Proxmire of Wisconsin.
of his "Golden Fleece" award to Dr. Ronald Hutchinson led to a
suit-- and a Supreme Court decision interpreting the Speech and Debate
1979, in Hutchinson v Proxmire, the Court considered whether
immunity for Senate and House debate extended beyond the floor to cover
press releases and statements made to the media. The Court
that the Speech and Debate Clause protected only official congressional
business, not statements for public consumption.
The judicial Power shall extend to all Cases, in Law and Equity,
under this Constitution, the Laws of the United States, and Treaties
or which shall be made, under their Authority....
In all Cases affecting Ambassadors, other public
Consuls, and those in which a State shall be Party, the supreme Court
have original Jurisdiction. In all the other Cases before mentioned,
supreme Court shall have appellate Jurisdiction, both as to Law and
Fact, with such Exceptions, and
under such Regulations as the Congress shall
In Ex Parte
(1868) the Court decided it lacked jurisdiction to consider the habeas
corpus petition of William McCardle, a Vicksburg, Mississippi newspaper
editor arrested by military official for writing incendiary editorials
about the federal officers then in control of Mississippi during
Although McCardle made his petition under the 1867 Habeas Corpus Act,
repealed the provision authorizing McCardle's petition AFTER the Court
had heard arguments in his appeal. Although it was obvious that
repealed the provision in an attempt to specifically deprive McCardle
of the opportunity to gain release from military custody, the Court
upheld the validity of the Act and found itself without
Many subsequent commentators, including conservative judge Robert Bork,
have criticized the Court's decision in McCardle and have predicted
it would not be followed today.
Encroachments on Legislative Powers
Sheet & Tube Co. v Sawyer (1952)
& Moore v Regan (1981)
Encroachment on Executive Powers
v Chadha (1983)
v Synar (1986)
v Olson (1988)
Encroachment on Legislative Powers
v U. S. (1989)
Privilege and Immunities
States v Nixon (1974)
v Jones (1997)
Immunity: Speech & Debate Clause
v Proxmire (1979)
Encroachment on Judicial Powers
Parte McCardle (1868)
Separation of Powers Provisions
in the Constitution
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
Article II, Section. 1:
The executive Power shall be vested in a President of the United States
Article III, Section. 1:
The judicial Power of the United States shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to
ordain and establish.
Article I, Section. 7:
All Bills for raising Revenue shall originate in the House of
but the Senate may propose or concur with Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives and the
Senate, shall, before it become a Law, be presented to the President of
the United States: If he approve he shall sign it, but if not he shall
return it, with his Objections to that House in which it shall have
who shall enter the Objections at large on their Journal, and proceed
reconsider it. If after such Reconsideration two thirds of that House
agree to pass the Bill, it shall be sent, together with the Objections,
to the other House, by which it shall likewise be reconsidered, and if
approved by two thirds of that House, it shall become a Law....If any
shall not be returned by the President within ten Days (Sundays
after it shall have been presented to him, the Same shall be a Law, in
like Manner as if he had signed it, unless the Congress by their
prevent its Return, in which Case it shall not be a Law.
1. What are some of the weapons each branch is given by the
to fend off encroachment by other branches?
2. Which view of presidential power under the Constitution makes
the most sense to you--the "strong" view or the "weak" view?
Which view has the Court come closer to adopting?
3. How should a history of congressional inaction in response
to an assertion of presidential power be interpreted?
4. Did the Constitution empower President Lincoln to issue his
famous Emancipation Proclamation?
5. It is not obvious that the Court has the power to review
assertions of power. What do you think about the suggestion that
the Court should refrain from reviewing these exercises of power under
"the political question" doctrine?
6. Why do you think Congress came to rely so heavily on
veto" provisions? What are the alternatives?
7. Among the many ways of evaluating justices, one is to measure
their willingness to accept as constitutional "pragmatic" solutions to
the problems of modern governance. On such a scale, with respect
to recent justices, might Justice White be called the "most pragmatic"
and Justice Scalia the "least pragmatic" justice?
8. The Court seems to view the power of removal as key to placing
an official in one or another branch of government. Why is the
of removal so important?
9. Have special prosecutors made a positive or a negative
to public life?
10. Do you accept Justice Rehnquist's argument that the Court
should be concerned when one branch seems intent on increasing its
at the expense of other branches, but much less so when that is not the
intent of an alleged separation of powers violation?
11. Is Justice Scalia right in suggesting, after Morrison,
we now have a "standardless judicial allocation of powers"?
12. What do you think about the guidelines of the U. S.
Commission? Have they served to provide more uniform
Have they taken too much sentencing discretion away from trial judges
13. Could it be argued that the Federal Rules of Civil Procedure
violate constitutional separation of powers principles?
14. Could Congress delegate all of its law-making power to a
super agency and take a long vacation? Why would such a broad
violate the Constitution? How far can Congress go in delegating
law-making powers? When are standards for the exercise of
discretion sufficient for constitutional purposes?
15. What is the best argument for recognizing constitutional
protection for claims of executive privilege?
16. What would happen if the President were to ignore a direct
order from the Supreme Court to respond to a legislative or judicial
request for information? President Nixon promised to obey "a
opinion of the Supreme Court." What do you think he meant by
17. Should the doctrine of executive privilege apply differently
in impeachment proceedings?
18. What's the case for making the President immune from suits
for damages while in office?
Background on Ex Parte
Example of one of McCardle's editorials in the
(Nov. 6, 1867):
"There is not a single shade of difference between Schofield, Sickles,
Sheridan, Pope and Ord [generals in charge of Reconstruction]:...They
all infamous, cowardly, and abandoned villains who, instead of wearing
shoulder straps and ruling millions of people should have their heads
their ears cropped, their foreheads branded, and their persons lodged
President Johnson's message in vetoing the Repeal Act
Veto was subsequently overridden.):
"I cannot give my assent to a measure which proposes to deprive any
person restrained of his or her liberty in violation of the
right of appeal to the highest judicial authority known to our
Supreme Court combines judicial wisdom and impartiality to a higher
than any authority known to the Constitution; any any act which may
construed into or mistaken for an attempt to prevent or evade its
on a question which affects the liberty of the citizens and agitates
country cannon fail to be attended with unpropitious consequences."
McCardle's attorney on
the Supreme Court decision against his client:
"The Court stood still to be ravished and did not even hallo while the
thing was getting done...The whole government is so rotten and
dishonest that I can only protest. It is drunk with blood and
vomits crime incessantly."
19. What should the Court have done in Ex Parte
Consider these options: (1) Conclude that it had already determined it
had jurisdiction and ignore the repeal act; (2) Consider the act, but
it inapplicable because it was enacted after oral argument had
(3) Hold that the act violated Article I, Section 9, Clause 2 in that
suspension of habeas corpus was not required by public safety; (4)
the act violated the Fifth Amendment because it deprived McCardle of
process of law; (5) Hold the act violates basic separation of powers
and that Congress cannot curtail the jurisdiction of the Court; (6)
the act and dismiss the case for want of jurisdiction.
For detailed information about what transpired
after the Clinton v Jones
litigation (which settled in 1999 for $850,000), including an account
of the impeachment proceedings against President Clinton, click on the
impeachment saga of
President Clinton has its origins in a sexual
harassment lawsuit brought in Arkansas in May, 1994 by Paula
former Arkansas state employee. In her suit, Jones alleged that
on May 8, 1991, while she helped to staff a state-sponsored management
conference at the Excelsior Hotel in Little Rock, a state trooper and
member of Governor Clinton's security detail, Danny Ferguson,
approached her and told her that the Governor would like to meet her in
his hotel suite. Minutes later, Jones, seeing this as an
opportunity to advance her career, took the elevator to Clinton's
suite. There, according to her disputed account, Clinton made a
increasingly aggressive moves, culminating in a request for oral sex.
that she stood and told the Governor,
"I'm not that kind
girl." As she left, Clinton allegedly stopped her by the door and said,
smart girl, let's keep this between ourselves." (There is reason
to question Jones's story, as Clinton's security guard reported
that Jones seemed pleased when she left the hotel room--and that
anything that happened inside appeared to be consensual.)
Lawyers for Clinton argued that the Jones suit would distract him from
the important tasks of his office and should not be allowed to go
forward while he occupied the White House. Clinton's immunity
claim eventually reached the United States Supreme Court. The
Court ruled unanimously in May, 1997 against the President, and allowed
the case to proceed. As Federal Appeals Court Judge (and Reagan
appointee) Richard A. Posner noted in
An Affair of State: The Investigation, Impeachment, and Trial of
, the Court's "inept," "unpragmatic," and
"backward-looking" decision in Clinton
, and an earlier
by the Court
upholding the constitutionality of the act authorizing
the appointment of independent counsels, had major consequences:
"Clinton's affair with
Lewinsky, an affair intrinsically devoid of significance to anyone
except Lewinsky, would have remained a secret from the public.
The public would not have been worse for not knowing about it.
There would have been no impeachment inquiry, no impeachment, no
concerns about the motives behind the President's military actions
against terrorists and rogue states in the summer and fall of 1998, no
spectacle of the United States Senate play-acting at
adjudication. The Supreme Court's decisions created a situation
that led the President and his defenders into the pattern of
cornered-rat behavior that engendered a constitutional storm and that
may have embittered American politics, weakened the Presidency,
distracted the federal government from essential business, and
undermined the rule of law."
As a result of the Supreme Court's action, Judge Susan Weber Wright
allowed discovery to proceed in the Paula Jones lawsuit. Judge
Wright ruled that lawyers for Jones, in order to help prove her sexual
harassment claim, could inquire into any sexual relationships that
Clinton might have with subordinates either as Governor of
Arkansas or as President of the United States. A critical moment
in the cascade of events that would eventually lead to impeachment came
on December 5, 1997 when Jones's lawyers submitted a list of women that
they would like to depose. Included on the list the name of Monica