An inductive understanding of separation of powers

Administrative Law Review

Volumn 63, Issue 3, 2011, Pages 467-514

  Beermann, Jack M ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 84855613656     PISSN: 00018368     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (130)

1. See Free Enter. Fund, 130 S. Ct. at 3146. The Court's reference to "three defined categories" of governmental power was not new. In this particular case, the Court quoted a passage in the Chadha decision.
2. See INS v. Chadha, 462 U.S. 919, 951 (1983) ("The 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. The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.").
3. See, e.g., Gary Lawson, TTie Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1242 (1994) ("[T]f a statute vests discretionary authority direcdy in an agency official (as do most regulatory statutes) rather than in the President, the Article II Vesting Clause seems to require that such discretionary authority be subject to the President's control.").
4. But see Kendall v. United States, 37 U.S. (12 Pet.) 524, 610 (1838) (noting that executive branch officials are not all under the exclusive control of the President)
5. Kevin M. Stack, The President's Statutory Powers to Administer the Laws, 106 COLUM. L. REV. 263 (2006) (hypothesizing that delegation directly to an agency indicates congressional intent not to have the President in charge of administering the statute).
6. See, e.g., Chadha, 462 U.S. at 919.
7. U.S. CONST, art. II, § 1, cl. 1.
8. See 487 U.S. 654, 698-99, 705 (1988) (Scalia, J., dissenting). In that opinion, after quoting Article H's Vesting Clause for the second time, Justice Scalia exclaimed, "As I described at the outset of this opinion, this does not mean some of the executive power, but all of (he executive power."
9. See, e.g., Touby v. United States, 500 U.S. 160, 164-65 (1991)
10. Mistretta v. United States, 488 U.S. 361, 371-72 (1989). The Vesting Clause of Article III is invoked often in the Court's majority opinions concerning the scope of the judicial power.
11. See Free Enter. Fund, 130 S. Ct. at 3164. The Public Company Accounting Oversight Board (PCAOB) was created in 2002 as part of the Sarbanes-Oxley Act's reform of regulation of the accounting industry.
12. See Sarbanes-Oxley Act of 2002, Pub. L. No. 107- 204, § 101, 116 Stat. 745, 750 (codified at 15 U.S.C. § 7211 (2006)). The Board consists of five members appointed and removable only for serious cause by the Securities and Exchange Commission (SEC). 15 U.S.C. §§ 7211(e)(1), 7217(d)(3). The PCAOB's function is to enforce die aspects of the Sarbanes-Oxley Act and other laws and regulations that apply to the accounting industry. The PCAOB was modeled on private self-regulatory agencies such as the New York Stock Exchange, and although the Act declares that the PCAOB members are not government officers or employees, they clearly are for purposes of the Appointments Clause. Its members are very well paid for government officials, with pay ranging from 5547,000 to $673,000.
13. See Free Enter. Fund, 130 S. Ct. at 3147 n.1.
14. Because the goal of this Article is to take a fresh look at the practice and practical understanding of separation of powers in the government of the United States, I do not engage the voluminous scholarship that exists on the subject. Although the picture painted here may strike some readers as novel and somewhat unconventional, it shares some attributes with M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. PA. L. REV. 603 (2001)
15. Peter L. Strauss, The Place of Agencies in Government Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573 (1984). John Manning paints a similar picture of separation of powers in an article written roughly contemporaneously with this one, although Manning's analysis of governmental powers is more conceptual than the one presented in this article.
16. See John F. Manning, Separation of Powers as Ordinary Interpretation, 124 HARV. L. REV. 1939 (2011)
17. see also Arnold I. Burns & Steven J. Markman, Understanding Separation of Powers, 7 PACE L. REV. 575 (1987).
18. See, e.g., Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1078 (111. 1997) (statutory damages cap on noneconomic injuries violates IIIinois separation of powers doctrine).
19. U.S. CONST, art. I, §1.
20. U.S. CONST, art. I, § 6, cl. 2.
21. See generally Ronald J. Krotoszynski, Jr., The Shot (Not) Heard 'Round the World: Reconsidering the Perplexing U.S. Preoccupation with the Separation of Legislative and Executive Powers, 51 B.C. L. REV. 1 (2010). Congresional service as officers of the United States would not necessarily concentrate legislative and executive power in the same hands because passing laws would stIII require positive votes from hundreds of legislators not serving in the Executive Branch. But such a system would be difficult to police without a strict numerical limitation on the number of members of Congress allowed to serve in the Executive Branch. Thus, a complete ban may be the more sensible rule.
22. U.S. CONST, art. I, § 6, cl. 2.
23. See, e.g., INS v. Chadha, 462 U.S. 919 (1983) (striking down the legislative veto).
24. Justice Kennedy's concurring opinion in Public Citizen v. U.S. Department of Justice, 491 U.S. 438 (1989), may be the most explicit statement of this understanding at the Supreme Court. Justice Kennedy explained that the Court is strict when Congress attempts to interfere with the President's exercise of a textually committed executive power and is much more forgiving when the President can claim interference only with "the general grant to the President of the 'executive Power."'
25. See Pub. Citizen, 491 U.S. at 482-89. Injustice Kennedy's view, requiring the ABA Standing Committee on the Federal Judiciary to abide by FACA's organizational, openness, and recordkeeping requirements "would constitute a direct and real interference with the President's exclusive responsibility to nominate federal judges."
26. 462 U.S. 919, 958-59 (1983).
27. 8 U.S.C. § 1254 (1994) (repealed 1996).
28. U.S. CONST, art. I. § 7, cl. 2-3.
29. See Chadha, 462 U.S. at 955 (discussing limited exceptions to the general bicameral requirement).
30. Kg., Bernard Schwartz, "Apotheosis of Mediocrity"? The Rehnquist Court and Administrative Law, 46 ADMIN. L. REV. 141,143-44 (1994).
31. Chadha, 462 U.S. at 967-68 (White, J., dissenting). Justice White consistently argued for flexibility in separation of powers analysis.
32. See, e.g., Bowsher v. Synar, 478 U.S. 714, 759-60 (1986) (White, J., dissenting).
33. 424 U.S. 1(1976).
34. U.S. CONST, art. II, § 2, cl. 2.
35. Buckley, 424 U.S. at 143. Other methods of appointment may be applied to officials of the other branches who do not exercise authority pursuant to the law. For example, Congress may appoint officials who help in the process of legislation.
36. 524 U.S. 417 (1998).
37. 2 U.S.C. § 692 (2000), invalidated by Clinton v. City of New York, 524 U.S. 417 (1998).
38. Clinton, 524 U.S. at 448.
39. The President's exercise of the line item veto under the Act could be defended as execution of die law (the Line Item Veto Act) rather than amendment of the appropriations or tax benefit bIII that had already been signed. The Court characterized the veto as the latter, and in this and perhaps other separation of powers controversies, the Court's characterization was decisive. For example, in Bowsher v. Synar, 478 U.S. 714, 726-27 (1986), the Court held that an official removable by Congress could not execute the law. But the official, the Comptroller General, could be removed only through the exercise of the legislative process.
40. 487 U.S. 654(1988).
41. See Steven L. Carter, Comment, The Independent Counsel Mess, 102 HARV. L. REV. 105, 107-08 (1988) (discussing the background of the passage of the provisions providing for the independent counsel (IC))
42. Orrin G. Hatch, The Independent Counsel Statute and Questions About Its Future, 62 LAW & CONTEMP. PROBS. 145, 145 (1999) ("The primary impetus for our nation's first independent counsel statute was the firing of then-Watergate Special Prosecutor Archibald Cox in 1973 by President Nixon.").
43. See 28 U.S.C. §§ 49(a), 591 (a) (2006).
44. Morrison, 487 U.S. at 671.
45. See 28 U.S.C. §§ 594(f)(1), 596(a)(1) (2006).
46. See, e.g., Freytag v. Comm'r, 501 U.S. 868, 892 (1991) (upholding appointment of inferior officers by the chief judge of the Tax Court).
47. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3163 (2010) (determining that the SEC is a department for Appointments Clause purposes).
48. 15 U.S.C. §78d(a) (2006).
49. Free Enter. Fund, 130 S. Ct. at 3162. After the Court determined that PCAOB members must be subject to at wIII removal by the SEC, it applied the standard it had announced in Edmond v. United States, to determine that PCAOB members were inferior officers subject to appointment by, inter alia, "Heads of Departments."
50. see also U.S. CONST, art. II, § 2, cl. 2.
51. Free Enter. Fund, 130 S. Ct. at 3163.
52. See U.S. CONST, art. III, § 1.
53. See Jerry L. Mashaw, Federal Administration and Administrative Law in the Gilded Age, 119 YALE L.J. 1362, 1383-84, 1462-63 (2010) (describing the Tenure in Office Act, the impeachment of President Andrew Johnson for violating it, and the repeal of the Tenure in Office Act in 1887);
54. see also Myers v. United States, 272 U.S. 52, 107 (1926) (describing a statute passed in 1876 requiring the advice and consent of the Senate before the President could remove certain postmasters). As is discussed below, Myers held this provision unconstitutional.
55. 272 U.S. 52 (1926).
56. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3160 n.10 (2010). If the characterization of ALfs as performing adjudicative functions ultimately determines that the rule against double for-cause restrictions does not apply to them, the analysis wIII be inconsistent with the Court's recent rejection of conceptual analysis as the basis of decisions concerning the constitutionality of removal restrictions. See supra Part IIA. Kevin Stack suggests that PCAOB does signal a return to the conceptual analysis of Humphrey's Executor insofar as the Court would not apply its ban on double for-cause removal restrictions to "dedicated adjudicators" such as ALJs.
57. See Kevin M. Stack, Agency Independence after PCAOB, CARDOZO L. REV. (forthcoming 2011).
58. See Wiener v. United States, 357 U.S. 349, 356 (1958) (stating that the President may not remove a member of the adjudicatory War Claims Commission even though the statute does not explicitly address removal standard);
59. Humphrey's Ex'r v. United States, 295 U.S. 602, 623 (1935) (ruling that Congress may restrict removal of Federal Trade Commissioner to "inefficiency, neglect of duty, or malfeasance in office").
60. See Wiener, 357 U.S. at 353-54.
61. Humphrey's Ex'r, 295 U.S. at 628
62. see also Wiener, 357 U.S. at 352.
63. See Wiener, 357 U.S. at 356 ("Congress did not wish to have hang over the Commission the Damocles' sword of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing.").
64. 487 U.S. 654, 696 (1988).
65. U.S. CONST, art. II, § 3
66. see also Morrison, 487 U.S. at 669. In similar language, the Court declared that "we cannot say that the imposition of a 'good cause' standard for removal by itself unduly trammels on executive authority" and "we simply do not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at wIII by the President."
67. Morrison, 487 U.S. at 691-92.
68. See 15 U.S.C. § 7217(d)(3) (2006) (listing conditions for removal).
69. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3146-47(2010).
70. See, e.g., Bowsher v. Synar, 478 U.S. 714, 736 (1986) (holding that an official removable by Congress cannot execute the law);
71. Buckley v. Valeo, 424 U.S. 1, 143 (1976) (stating that officials appointed by members of Congress cannot execute the law).
72. See Free Enter. Fund, 130 S. Ct. at 3155 ("Without a clear and effective chain of command, the public cannot 'determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.'" (quoting THE FEDERALIST NO. 70 (Alexander Hamilton))). This concern for clear lines of political accountability is the underlying normative basis for the Court's prohibition on federal commandeering of state and local officials to enforce federal law, which the Court create d as a limitation on Congress's power to regulate interstate commerce in the 1990s.
73. See Printz v. United States, 521 U.S. 898 (1997)
74. New York v. United States, 505 U.S. 144 (1992).
75. See Free Enter. Fund, 130 S. Ct. at 3148-49 ("The parties agree that the Commissioners cannot themselves be removed by the President except under the Humphrey's Executor standard ⋯ and we decide the case with that understanding.").
76. See 15 U.S.C.§78d(a)(2006).
77. Free Enter. Fund, 130 S. Ct. at 3148-49. A test of mis understanding would occur if the President discharged a member of the Commission without cause and defended a suit by the terminated commissioner on the basis that no statute protects the Commissioner's tenure. It would be surprising if the Court stuck to its view in PCAOB and held that a forcause restriction on removal is implicit for independent agency members in the absence of legislation to that effect. Perhaps the Court would view it as implicit in appointment of Commissioners for five-year terms. If the Court held that Commissioners are terminable at wIII, then presumably it would be constitutional to require cause for the SEC to discharge PCAOB members.
78. Some scholars locate a general principle of separation of powers, and other nontextual limitations on governmental power, in Article I's Necessary and Proper Clause, theorizing that a law that violates separation of powers cannot be "proper" for "carrying into execution" any federal power. See Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267, 274 (1993). Lawson's and Granger's argument is based largely on state constitutional separation of powers provisions that used the word proper to refer to matters within the jurisdiction of a particular branch of government.
79. See Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1165 (1992) ("The theories of limited congressional power to divest the President of control over the executive department are rooted in die Vesting Clause of Article II, which provides: 'The executive Power shall be vested in a President of the United States of America.'" (emphasis added)).
80. Justice Scalia stated in Whitman v. American Trucking Ass'ns, "we have 'almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.'" Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474-75 (2001) (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting)).
81. Whitman, 531 U.S at 472.
82. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3152 (2010).
83. U.S. CONST, art. III, § 2, cl. 1.
84. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 850-51 (1986);
85. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 87 (1982).
86. See Hans v. Louisiana, 134 U.S. 1 (1890).
87. K Pipeline, 458 U.S. at 87.
88. See Crowell v. Benson, 285 U.S. 22, 64-65 (1932). In Crowell, the Court held that a federal agency could adjudicate private rights claims as a sort of adjunct to the federal courts, with deferential review of routine facts but de novo review of jurisdictional facts and questions of law.
89. M Pipeline, 458 U.S. at 87.
90. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 851 (1986).
91. In Stem v. Marshall, No. 10-179, 2011 WL 2472792, at *16 (U.S. June 23, 2011), the Court reafiirmed that the power to enter a final judgment in a state common law claim is an essential attribute of the Article III judicial power. Interestingly, in dicta, the Court expanded the category of "public rights" that may be adjudicated by non-Article III tribunals to include cases between private parties "in which the claim at issue derives from a federal regulatory scheme, or in which resolution of the claim by an expert government agency is deemed essential to a limited regulatory objective within the agency's authority."
92. INS v. Chadha, 462 U.S. 919,951-52 (1983).
93. 487 U.S. 654, 695 (1988) ("[T]he power to appoint inferior officers such as independent counsel is not in itself an 'executive' function in the constitutional sense, at least when Congress has exercised its power to vest the appointment of an inferior office in the 'courts of Law.'").
94. Myers v. United States, 272 U.S. 52, 176 (1926).
95. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3152 (2010).
96. Bogan v. Scott-Harris, 523 U.S. 44, 55-56 (1998).
97. Clean Air Act § 109(a), 42 U.S.C. § 7409(a) (2006).
98. See INS v. Chadha, 462 U.S. 919, 953 n.16 (1983).
99. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472-73 (2001) (citingJ.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)) (discussing the constitutionality of delegation to the Environmental Protection Agency to set National Ambient Air Quality Standards).
100. 343 U.S. 579 (1952). This is the clear implication of the Court's analysis in the Steel Seizure case, in which the Court grappled with President Truman's claim of inherent power to seize the steel mIIIs in wartime to avert serious negative consequences to the war effort. The Court's decision appears to stand for the proposition that the President had not only seized the mIIIs, but had also seized the Congress's legislative power, and that this he could not constitutionally do. In my view, it is more accurate to state that President Truman's action was IIIegal because it was ultra vires. In the Court's view, President Truman had no statutory or constitutional basis for seizing the mIIIs. It is not that the order to seize the mIIIs was an exercise of the legislative power. The President does not have legislative power beyond the veto granted in Article I. It is that lacking a constitutional basis, the only possible source of presidential power would arise from a statute passed by Congress which was also not present. In a sense, the nondelegation doctrine could be understood this way. Vague statutes lacking an intelligible principle simply do not successfully delegate power to the Executive Branch. On this understanding, the problem is not that such statutes improperly delegate legislative power, it is that they do not successfully enable executive action because they are not specific enough. Therefore, action taken purporting to rely on them is ultra vires because it has not been successfully authorized.
101. See Chadha, 462 U.S. at 954-55. This sort of legislation may not be permissible in most states in the United States that have bans on "special legislation" in their constitutions. For example, Article IV, section 13 of the IIIinois constitution provides: "The General Assembly shall pass no special or local law when a general law is or can be made applicable." III. CONST, art. IV, § 13. Because the federal Constitution has no such provision, Congress is free to legislate with greater particularity than most state legislatures, subject to other limitations such as the prohibition on bIIIs of attainder, which, under certain circumstances, prevents Congress from singling out individuals for unfavorable action. U.S. CONST, art. I, § 9, cl. 3.
102. 29 U.S.C.§§ 141-197 (2006).
103. U.S. CONST, art. I, § 8, cl. 11,14.
104. Robert H. Bork, Comments on the Articles on the Legality of the United States Action in Cambodia, 65 AM. J. INT'L L. 76, 81 (1971). For a contrary view, built on a history of congressional micromanagement of the conduct of wars during the early years of the nation
105. see Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 TEX. L. REV. 299 (2008).
106. There is substantial controversy over whether the President may refuse to enforce a law that in his or her opinion is unconstitutional. Compare Saikrishna Bangalore Prakash, The Executive's Duty To Disregard Unconstitutional Laws, 96 GEO. L J. 1613, 1682 (2008) (arguing that the President must disregard unconstitutional statutes to fulfIII the obligation to defend the Constitution), with Peter L. Strauss, The President and Choices Not To Enforce, LAW & CONTEMP. PROBS., Winter/Spring 2000, at 107, 123 (advocating that the enforcement of a possibly unconstitutional law should not depend solely on the President's views).
107. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001) (quoting the Vesting Clause of Article I and finding the text "permits no delegation" of Congress's legislative power)
108. Clean Air Act § 109(a), 42 U.S.C. § 7409(a) (2006).
109. See, e.g., Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982-83 (2005) (holding that only a judicial precedent which unambiguously forecloses die agency's interpretation displaces a conflicting agency construction).
110. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 858 (1986) (upholding such an arrangement).
111. See Robertson v. Seattle Audubon Soc, 503 U.S. 429, 433 (1992) (discussing the Northwest Timber Compromise).
112. Act of Oct. 23, 1989, Pub. L. No. 101-121, § 318(b)(6)(A), 103 Stat. 701, 745.
113. Robertson, 503 U.S. at 438-39.
114. See Goldwater v. Carter, 444 U.S. 996 (1979).
115. U.S. CONST, art. I, § 2, cl. 5.
116. Buckley v. Valeo, 424 U.S. 1, 143 (1976).
117. Morrison v. Olson, 487 U.S. 654, 695 (1988).
118. See INS v. Chadha, 462 U.S. 919, 946-48 (1983) (discussing two bases for veto: the President's need to protect the presidency from legislative encroachment and the necessity of limiting Congress's propensity to pass III-considered, faction-dominated legislation).
119. see generally Hanah Metchis Volokh, The Two Appointments Clauses: Statutory Qualifications for Federal Officers, 10 U. PA. J. CONST. L. 745 (2008).
120. For example, after the Katrina disaster, when the federal government's response was marred by Federal Emergency Management Agency's (FEMA's) apparent indifference and incompetence, Congress prescribed strict professional qualifications for the FEMA directorship. President George W. Bush objected to these in a signing statement on the ground that they would prevent him from appointing many qualified people of his choice and promised to "construe [the statute] in a manner consistent with the Appointments Clause of the Constitution." Presidential Statement on Signing the Department of Homeland Security Appropriations Act 2007, 42 WEEKLY COMP. PRES. DOC. 1742, 1742-43 (Oct. 4, 2006).
121. U.S. CONST, art. II, § 2, cl. 1.
122. For a general look at this, see Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61(2006).
123. John G. Roberts, Are Congressional Committees Constitutional?: Radical Textualism, Separation of Powers, and the Enactment Process, 52 CASE W. RES. L. REV. 489, 563-65 (2001).
124. The Supreme Court has made it clear that funding requirements contained only in congressional committee reports are not legally binding. See Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631, 646 (2005)
125. ; Lincoln v. Vigil, 508 U.S. 182, 192 (1993). Late in his presidency, George W. Bush instructed agencies not to treat as binding spending instructions contained in committee reports. Exec. Order 13,457, 3 C.F.R. 175-177 (2009). This Executive Order may be viewed as an example of improper midnight activity, since President Bush waited until the last year of his second term to issue an order that regulated internal executive branch activity.
126. Sec generally Jack M. Beermann, Presidential Potver in Transitions, 83 B.U. L. REV. 947 (2003) (finding the phenomenon of "midnight regulation" a fact of life in a term-based political system). Further, Congress continues to include unconstitutional legislative vetoes in appropriations legislation. It is unclear whether agencies informally comply with the veto provisions.
127. United States v. Mardis, 670 F. Supp. 2d 696, 702-03 (W.D. Tenn. 2009) (citations omitted).
128. See generally Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms,91 HARV.L. REV. 1212(1978).
129. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474-75 (2001) (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989)).
130. See generally Kevin M. Stack, The Story o/"Morrison v. Olsoa- The Independent Counsel and Independent Agencies in Watergate's Wake, in PRESIDENTIAL POWER STORIES 401 (Christopher H. Schroeder & Curtis A. Bradley eds., 2009).