Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 1991 The Constitutional Principle of Separation of Powers Thomas W. Merrill Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons, and the Supreme Court of the United States Commons Recommended Citation Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 SUP. CT. REV. 225 (1991). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/367 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. THOMAS W. MERRILL THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF POWERS I. INTRODucrION The Supreme Court has had many occasions in recent years to consider what it calls "the constitutional principle of separation of powers."' The principle in question has been effusively praised2 and on occasion vigorously enforced.3 But just what is it? The Court clearly believes that the Constitution contains an organizing principle that is more than the sum of the specific clauses that govern relations among the branches. Yet notwithstanding the many testimonials to the importance of the principle, its content remains remarkably elusive. The central problem, as many have observed,4 is that the Court Thomas W. Merrill is Professor of Law, Northwestern University School of Law. AtrboR's NoTE: This paper has benefited from comments on a previous draft by Gary Lawson and participants in a Northwestern constitutional theory workshop. I The phrase appears in the Court's statement of the question presented in Metropolitan Washington Airports Auth. v Citizensfor Abatement of Aircraft Noise, Inc., 111 S Ct 2298, 2301 (1991). 2 See, e.g., Freytag v Commissioner of Internal Revenue, 111 S Ct 2631, 2634 (1991) ("the central guarantee of a just government"); Mistretta v United States, 488 US 361, 380 (1989) ("essential to the preservation of liberty"). I On five occasions in recent years, the Court has invalidated federal legislation on separation-of-powers grounds: Metropolitan Washington AirportsAuth. v Citizensfor Abatement of of Aircraft Noise, Inc., 111 S Ct 2298 (1991); Bowsher v Synar, 478 US 714 (1986); INS v Chadha, 462 US 919 (1983); Northern Pipeline Construction Co. v Marathon Pipe Line Co., 458 US 50 (1982); and Buckley v Valeo, 424 US 1 (1976). 4 See, e.g., Martin H. Redish and Elizabeth Cisar, "If Angels Were to Govern": The Need for Pragmatic Formalism in Separation of Powers Theory, 41 Duke L J 449 (1991); Rebecca L. Brown, SeparatedPowers and Ordered Liberty, 139 U Pa L Rev 1513, 1522-31 (1991); Harold J. Krent, Separatingthe Strands in Separation of Powers Controversies, 74 Vir L Rev 1253 (1988); © 1992 by The University of Chicago. All rights reserved. 0-226-09574-6/9211991-0008$02.00 226 THE SUPREME COURT REVIEW [1991 has employed two very different conceptions of separation of pow- ers in recent years. On the one hand, there is the "formal" under- standing, emphasizing that "[t]he Constitution sought to divide the delegated powers of the new Federal government into three defined categories, Legislative, Executive, and Judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility." 5 On the other hand, there is the "functional" understanding, stressing that the three branches do not "operate with absolute independence," and that the Constitu- tion requires only that "the proper balance between the coordinate branches" be maintained.6 The Court has alternated between the formal and the functional constructions, with a swing group of Justices evidently happy to embrace one or the other as suits the needs of the moment.7 When we step back from the doctrinal inconstancy and examine the outcomes of the Court's recent separation-of-powers decisions, however, a readily discernible pattern emerges. The formal theory is regularly used in evaluating (and invalidating) attempts by Con- gress to exercise governmental power by means other than the enactment of-legislation; 8 the more elastic functional approach is favored in reviewing (and approving) duly-enacted legislation that regulates or reallocates the functions performed by the other two branches. 9 Unfortunately, this pattern does not follow from the Cass R. Sunstein, Constitutionalismafter the New Deal, 101 Harv L Rev 421, 493-96 (1987); Peter L. Strauss, Formaland FunctionalApproaches to Separation-of-PowersQuestions-a Foolish Inconsistency? 72 Cornell L Rev 488 (1987); Thomas 0. Sargentich, The Contemporary Debate about Legislative-Executive Separation of Powers, 72 Cornell L Rev 430, 433 (1987). 'INS v Chadba, 462 US 919, 951 (1983). 6 Morrison v Olson, 487 US 654, 694, 695 (1988), quoting United States v Nixon, 418 US 683, 707 (1974) and Nixon v Administratorof General Services, 433 US 425, 443 (1977). 7 On the last day of the 1985 Term, the Court handed down two separation-of-powers decisions. One, Bowsher vSynar. 47TilS-744-(4-986);-applied..aJaig ormal analysis to invalidate part of the Gramm-Rudman-Hollings Act; the other, Commodity-Pt-uresTrading Cn-m-tn 478-CS TTW!8"5)-,add netin a itod upholor,- the jurisdiction of an administrative agency over common-law counterclaims.--l tjustice Burger,', Iusft7- Peii Jusice Rehnquist, and 7Justice" O'Connor-joined both majority opinions. 8 Bowsher v Synar, 478 US 714 (1986) (congressional agent cannot control execution of the laws); INS v Chadha, 462 US 919 (1983) (one-House legislative veto unconstitutional); Buckley v Valeo, 424 US 1 (1976) (members of Congress cannot exercise appointments power over nonlegislative officers). 9 Mistretta v United States, 488 US 361 (1989) (Sentencing Commission with rulemaking powers permissible as part of judicial branch); Morrison v Olson, 487 US 654 (1988) (federal court may appoint independent counsel to investigate and prosecute crimes by high execu- 7] THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF POWERS 227 tenets of either formalism or functionalism. Applied consistently, formdJism would impose strict limitations on efforts to scramble executive and judicial functions,10 and functionalism would proba- bly lead the Court to uphold at least some of the extra-legislative congressional controls that have been disapproved. 1 All of which suggests that neither formalism nor functionalism provides a satis- factory account of the constitutional principle of separation of powers-at least as it operates in practice. In the 1990 Term the Court decided two cases that required it to revisit the constitutional principle of separation of powers- Metropolitan Washington AirportsAuthority v Citizensforthe Abatement of Aircraft Noise, Inc. 2 and Freytag v Commissioner of Internal Reve- nue. 3 In terms of doctrinal development, neither decision does much to clear up the "incoherent muddle"' 4 of recent years. But in terms of outcomes, we see the same pattern repeated once again. In Washington Airports, the Court reviewed another attempt at extra-legislative Congressional control: legislation that would allow members of Congress, serving as a state "Board of Review," to veto decisions of a regional airports authority. True to pattern, the Court invoked the constitutional principle of separation of powers and struck it down. By contrast, Freytaginvolred a challenge to the allocation of functions between the executive and judicial branches: whether the Chief Judge of the Tax Court (a non-Article III tribu- nal) was either a "Head of Department" or "Court of Law" for tive officials); Commodity FuturesTrading Commission v Schor, 478 US 83f(198F)-(adriiinistra- tiye agency may adjudicate common-law couterclaim); Nixon v Administrator of General Ser- vices, 433 US 425, 443 (1977) (controls on disposition of Presidential papers permissible). The principal exception is Northern Pipeline Construction Co. v Marathon Pipe Line Co., 458 US 50 (1982), where Justice Brennan's plurality opinion used a formal analysis to invalidate portions of the jurisdiction of the bankrupcty courts as being inconsistent with the judicial function of Article III courts. This aspect of Northern Pipeline, however, does not appear to have survived subsequent decisions. See note 91. 1oThis is the view of Justice Scalia, the Court's most consistent champion of formalism. See Morrison, 487 US at 703-15 (Scalia dissenting); Mistretta, 488 US at 413-27 (Scalia dissenting). See also Gary Lawson, TerritorialGovernmentrand the Limits of Formalism, 78 Cal L Rev 853 (1990) (detailing the impact that a rigorous formalism would have on territorial courts). 11This is the position of Justice White, the one Justice who has steadfastly endorsed a functional approach. See Washington Airports, 111 S Ct at 2317-21 (White dissenting); Bowsher, 478 US at 776 (White dissenting); Chadha, 462 US at 998-1002 (White dissenting)./ I 11 S Ct 2298 (1991). Ill S Ct 2631 (1991). 14Brown, 139 U Pa L Rev at 1517 (cited in note 4). 228 THE SUPREME COURT REVIEW [1991 Appointments Clause purposes.'" Although the Court split 5-4 over the answer to this question, not a single vote could be mus- tered to endorse the formalist answer urged by the petitioners: that the Chief Judge was neither, and hence that the appointment authority was unconstitutional.