The rise and fall of the separation of powers

Northwestern University Law Review

Volumn 106, Issue 2, 2012, Pages 527-550

  Calabresi, Steven G ^a   Berghausen, Mark E ^a   Albertson, Skylar ^a  

^a NORTHWESTERN UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 84865817163     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (89)

1. 467 U.S. 837 (1984).
2. 524 U.S. 417 (1998).
3. Chevron, 467 U.S. at 844-45.
4. Interview by Bill Kurtis with John Paul Stevens & Steven G. Breyer, Assoc. Justices, Supreme Court of the U.S., in Chi., Ill. (May 10, 2004) (audio tape on file with author).
5. Clinton, 524 U.S. at 446-47.
6. Chevron, 467 U.S. at 865.
7. A brief history of separation of powers decisions and the Clinton decision are explained and discussed in Steven G. Calabresi, Separation of Powers and the Rehnquist Court: The Centrality of Clinton v. City of New York, 99 Nw. U. L. Rev. 77, 77-87 (2004).
8. See, e.g., Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (containing over three hundred instances of delegations of power phrased "the Secretary may" take certain actions as well as over one thousand uses of the formulation "the Secretary shall").
9. See, for example, Justice Stevens's majority opinion in Cardoza-Fonseca, 480 U.S. at 448, and his vote in Mead, 533 U.S. at 220, 226-27.
10. Clinton, 524 U.S. at 436-38, 446
11. Clinton, 524 U.S. at 448-49.
12. The classic treatments here are M.J.C. Vile, Constitutionalism and the Separation of Powers (1967) andW.B. Gwyn, TheMeaning of the Separation of Powers: An Analysis of the Doctrine from Its Origin to the Adoption of the United States Constitution (1965).
13. See David J. Bederman, The Classical Foundations of the American Constitution: Prevailing Wisdom 220-21 (2008).
14. See, e.g., M.J.C. Vile, Constitutionalism and the Separation of Powers (1967), at 33-52.
15. See Aristotle, Politics 1286a8-20, 1286a33-35, 1289a38-b5, 1279b4-8; Polybius, The Histories bk. VI, 7.
16. See Aristotle, Politics, 1286b3-19, 1289a38-b5; Polybius, The Histories bk., bk. VI, 8.
17. Aristotle was the first constitutional theorist to argue normatively for the idea of a Mixed Regime. Aristotle categorized constitutional arrangements according to which social class held power. See Aristotle, Politics, 1286b3-7, 1295a25-1296b11.
18. See Polybius, The Histories bk., bk. VI, 10.
19. See Aristotle, Politics, 1265b33-1266a5, 1293b21-1294b40, 1309b18-1310a1.
20. Polybius argued that governments follow an inevitable cycle of constitutional decay (anacyclosis). See Polybius, The Histories bk., bk. VI, 4, 57.1.
21. see also Andrew Lintott, The Constitution of the Roman Republic 225-32 (1999) (describing the changes that Cicero proposed in De Legibus).
22. St. Thomas Aquinas modified the earlier version of the Mixed Regime to account for the superior status of the One. St. Thomas argued that a Mixed Regime structure would provide more stability for monarchies by reducing the likelihood that the Few or the Many would revolt. See St. Thomas Aquinas, De Regimine Principum, in The Political Ideas of St. Thomas Aquinas 181, bk. I, ch. 6 (Dino Bigongiari ed., 1953) [hereinafter Aquinas, De Regimine Principum]. St. Thomas also reconciled the Mixed Regime with his Christian faith, thus making the doctrine relevant for both politicians and theologians living in Europe. St. Thomas compared Mixed Regimes to the government instituted by Moses, which included the supreme power of Moses, a group of seventy-two elders, and the participation of all men in the selection of the elders. See St. Thomas Aquinas, Summa Theologica, in The Political Ideas of St. Thomas Aquinas 3, I-II Q.105 [hereinafter Aquinas, Summa Theologica].
23. In contrast to St. Thomas, Machiavelli argued for a form of the Mixed Regime where the power of the Many was supreme rather than the power of the One. See Machiavelli, Discourses, in II The Historical, Political, and Diplomatic Writings of Niccolo Machiavelli 93, bk. I, ch. VI (Christian E. Detmold trans., Cambridge, Riverside Press 1882) [hereinafter Machiavelli, Discourses].
24. Letter from Lord Acton to Mandell Creighton (Apr. 5, 1887), in Lord Acton, Essays on Freedom and Power 329, 335 (Gertrude Himmelfarb ed., 1972).
25. See Aristotle, Politics, 1265b33-1266a5; Cicero, De Re Publica, II, XXIII; Machiavelli, Discourses, in II The Historical, Political, and Diplomatic Writings of Niccolo Machiavelli 93, (Christian E. Detmold trans., Cambridge, Riverside Press 1882), bk. 1, ch. VI; Polybius, The Histories, bk. VI, 10.
26. See Cicero, De Re Publica, II, XXIII; Polybius, The Histories, bk. VI, 10.
27. See Machiavelli, Discourses, in II The Historical, Political, and Diplomatic Writings of Niccolo Machiavelli 93, (Christian E. Detmold trans., Cambridge, Riverside Press 1882), bk. 1, ch. VI.
28. See W.B. Gwyn, TheMeaning of the Separation of Powers: An Analysis of the Doctrine from Its Origin to the Adoption of the United States Constitution (1965), at 24-27; M.J.C. Vile, Constitutionalism and the Separation of Powers (1967), at 38.
29. W.B. Gwyn, TheMeaning of the Separation of Powers: An Analysis of the Doctrine from Its Origin to the Adoption of the United States Constitution (1965), at 30.
30. The term "King-in-Parliament" refers to the King approving a bill that has been passed by the House of Commons and the House of Lords. See Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy 9 (1999). The idea is that the King acted together with the aristocracy and the common people. The King-in-Parliament was sovereign because it represented the three great estates of society. Today in England, the Monarch is a cipher, as is the House of Lords; the sovereignty of the Queen-in-Parliament means, in practice, the sovereignty of the House of Commons. ("[T]he King's power to make Acts of Parliament, with the assent of the Lords and Commons, is 'the most sovereign and supreme power above all and controllable by none.'"); see also W.B. Gwyn, TheMeaning of the Separation of Powers: An Analysis of the Doctrine from Its Origin to the Adoption of the United States Constitution (1965), at 30 (noting that the King was bound by laws made in Parliament).
31. William Blackstone says as much in his Commentaries on the Laws of England, *185-86, contradicting the contrary view of Sir Edward Coke in Dr. Bonham's Case, (1610) 77 Eng. Rep. 646 (K.B.) 652-53; 8 Co. Rep. 113 b, 117 b-118 b.
32. 523 F.2d 716, 717 (7th Cir. 1975). For an insightful discussion of Justice Stevens's view of the right to privacy as originally enunciated in Fitzgerald, see Jamal Greene, The So-Called Right to Privacy, 43 U.C. Davis L. Rev. 715 (2010).
33. Several American colonists praised the British Mixed Regime government during this period of time and supported efforts to replicate it in the colonies. According to M.J.C. Vile, "[B]y the middle of the eighteenth century the theory of the balanced constitution seemed as impregnably established in America as it was in England. " M.J.C. Vile, Constitutionalism and the Separation of Powers (1967), at 125.
34. See, e.g., The Declaration of Independence para. 2 (U.S. 1776).
35. Vile notes that when colonies began to move towards revolution, "the theory of mixed government as applied in England was first criticized on the grounds that corruption had so warped the Constitution that it no longer represented a truly balanced structure but was a disguised tyranny. " M.J.C. Vile, Constitutionalism and the Separation of Powers (1967), at 125-26. Authors such as Thomas Paine helped transform this criticism into a wholesale rejection of Mixed Regime government due to its emphasis on hereditary social class status.
36. See generally John Locke, The Second Treatise of Civil Government and a Letter Concerning Toleration (J.W. Gough ed., 1948) (1690) (arguing both that government rests on the consent of the people and for a functional separation of powers).
37. See generally 1 Montesquieu, The Spirit of Laws (Thomas Nugent trans., J.V. Prichard ed., 1914) (1748) (arguing that a functional separation of powers is necessary to avoid tyranny).
38. In 1648, Charles Dallison argued for a functional separation of powers with different personnel in each branch of the government. See Charles Dallison, The Royalist's Defence: Vindicating the King's Proceedings in the Late Warre Made Against Him 126 (1648). However, "in one major respect it adhered to the theory of mixed government" by giving the King broad powers. M.J.C. Vile, Constitutionalism and the Separation of Powers (1967), at 47. John Sadler and other writers developed similar constitutional theories in subsequent years.
39. John Locke envisioned a twofold division of government powers between the executive, which had the executive and foreign affairs powers, and the legislature, which had lawmaking power. John Locke, The Second Treatise of Civil Government and a Letter Concerning Toleration (J.W. Gough ed., 1948) (1690), at 72-73. John Locke's Second Treatise on Government represented a step forward for the functional separation of powers doctrine. Locke argued both for the rule of the Many and for the independence of judges. See M.J.C. Vile, Constitutionalism and the Separation of Powers (1967), at 60-63. Locke also helped bring about the supremacy of the legislature in constitutional theory, as opposed to the monarch or executive. Locke, along with other eighteenth-century writers, "[transformed] the demand that the King be the sole executive... into the very different demand that he be solely concerned with execution. " Montesquieu's De l'Espirit des Loix offered the first widely recognized articulation of the separation of powers doctrine as it is understood today. Though Montesquieu still viewed the legislative and executive powers as the two major branches of the government, he argued for a politically independent judiciary whose personnel would not be drawn from the legislative or executive branches of the government. See Montesquieu, at 163-65; M.J.C. Vile, Constitutionalism and the Separation of Powers (1967), at 88-89. Montesquieu famously declared that individual liberty depends upon a separation of both powers and persons, writing that "[w]hen the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.... Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. " Montesquieu, at 163. Montesquieu also focused on ensuring the rule of the Many through the establishment of representative government. Blackstone modified Montesquieu's constitutional theory in the Commentaries on the Laws of England. Since "the Commentaries were regarded as authoritative in the American colonies as well as in England, it was often through Blackstone's eyes that the colonists saw the Montesquieu theory. " M.J.C. Vile, Constitutionalism and the Separation of Powers (1967), at 102. Blackstone accorded much more authority to the judiciary than Montesquieu did, arguing that it was a "main preservative of the public liberty. "According to M.J.C. Vile, "Blackstone was an essential link between Montesquieu and Chief Justice Marshall, " M.J.C. Vile, Constitutionalism and the Separation of Powers (1967), at 104, and thus a bridge between the Framers and the earlier separation of powers theorists.
40. In April of 1776, Adams wrote that a bicameral legislature was necessary because, "if the legislative power is wholly in one Assembly, and the executive in another, or in a single person, these two powers will oppose and enervate upon each other, until the contest shall end in war. " John Adams, Thoughts on Government: Applicable to the Present State of the American Colonies (1776), reprinted in 4 Papers of John Adams 85, 88-89 (Robert J. Taylor ed., 1979). In support of the separation of powers, Adams reasoned that the legislature, "possessed of all the powers of government, would make arbitrary laws for their own interest, execute all laws arbitrarily for their own interest, and adjudge all controversies in their own favour. "
41. Though the separation of powers doctrine and the Mixed Regime are related, the system of checks and balances is more closely related to the Mixed Regime. The separation of powers doctrine by itself is inconsistent with the Mixed Regime because it would entrust each of the legislative, executive, and judicial powers in three separate institutions. The theorists who developed the Mixed Regime were concerned not only with dividing the power of the government generally, but also with ensuring that no single group would possess sole control over an important government function. The tripartite structure of government prescribed by the Mixed Regime remained after the American Revolution made social classes irrelevant, but this connection to the Mixed Regime is more indirect than the system of checks and balances. The concern associated with the Mixed Regime that no one part of the government should acquire too much power was the driving force behind the system of checks and balances, which ensures that the Supreme Court, each house of Congress, and the President do not have exclusive control over certain important government functions. See Allison Bates, The Republican Balance: The Guarantee Clause, the Framers' Republic, and the Popular Initiative 64-66 (Dec. 23, 2010) (unpublished manuscript) (on file with the Northwestern University Law Review).
42. Michael Stokes Paulsen et al., The Constitution of the United States 197 (2010).
43. Michael Stokes Paulsen et al., The Constitution of the United States 197 (2010).
44. Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 614, 620-22 (1838) (discussing the Court of King's Bench); see also Albert Venn Dicey, The Privy Council: The Arnold Prize Essay 101 (London, MacMillan & Co. 1887) ("[There is] a peculiar feature of the [Court of] Star Chamber's constitution,-the frequent presidency of the King in person. The legal fiction that the King is present personally in all his courts, was here carried into act.... The part taken by the King was no empty formality. On one occasion James presided for five days, 'seated on a chair high above the rest,' and terminated the case by pronouncing a sentence, of which, if the annalist is to be believed, the wisdom surpassed that of any judgment before uttered from an English tribunal. ").
45. Michael Stokes Paulsen et al., The Constitution of the United States 197 (2010), at 201.
46. Michael Stokes Paulsen et al., The Constitution of the United States 197 (2010), at 201.
47. See, e.g., Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. 23, 48-55 (1995).
48. See Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel?, 79 Cornell L. Rev. 1045, 1048 n.11, 1090 (1994).
49. See Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. (1995), at 51-54.
50. The question of congressional power to punish first came before the Supreme Court in 1821 when John Anderson attempted to bribe a member of the House of Representatives. Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 215 (1821).
51. Justice Powell expressed concern over legislative powers of punishment in INS v. Chadha, though there the issue was private bills for deportation as opposed to punishment for contempt. 462 U.S. 919, 960 (Powell, J., concurring).
52. Michael Stokes Paulsen et al., The Constitution of the United States 197 (2010), at 292-94.
53. See McGrain v. Daugherty, 273 U.S. 135 (1927).
54. Signing statements often operate as a constitutional means by which the President can communicate both with the public and with subordinate members of the Executive Branch. See generally Steven G. Calabresi & Daniel Lev, The Legal Significance of Presidential Signing Statements, 4 Forum 1 (2006). However, when signing statements are used as binding directives for members of the Executive Branch, they can become lawmaking in contravention of the separation of powers in two different ways. Signing statements become legislation when they interpret unreasonably the original public meaning of federal statutes. Despite the deference given to agency directives in accordance with Chevron, the federal courts can and do strike down unreasonable executive interpretations of statutes as in Whitman v. American Trucking Ass'ns, 531 U.S. 457, 486 (2001). If the President issues a signing statement that creates a policy clearly at odds with the relevant statute, he has unconstitutionally encroached upon the legislative power of Congress. Signing statements also change law and policy when they are used to decline to enforce provisions of statutes that are in fact constitutional. Critics of presidential signing statements say that when the provision in question is constitutional, the use of a signing statement to decline to enforce the disputed provision "is tantamount to exercising the line-item veto power held unconstitutional by the Supreme Court in Clinton v. New York. " Letter from Neal R. Sonnett, Chair, ABA Task Force on Presidential Signing Statements & the Separation of Powers Doctrine, to Cong. Leaders 22 (Jan. 17, 2007), available at http://www.abanet.org/poladv/letters/antiterror/2007jan17_signingstmts_l .pdf. The ABA Letter, however, totally overlooks the fact that all three branches of the national government must be guided by their own independent judgments as to what the Constitution requires. If the President thinks that Congress and the federal courts have upheld a statute like the Sedition Act of 1798 because they were "clearly mistaken" as to the constitutional issue, the President must decline to bring prosecutions under the law in question. See Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush 67 (2008). The clear mistake rule in constitutional law was put forth and defended by James Bradley Thayer in The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893). This is in fact exactly what President Thomas Jefferson ordered with respect to the one Sedition Act prosecution he inherited from the Adams Administration. Calabresi & Yoo, Jefferson ordered the prosecution to be stopped, and it was stopped. Justice Stevens has argued that the original understanding of the Framers on the issue may well have been that signing statements could never be used in place of a veto to decline enforcement of unconstitutional legislation. As Justice Stevens explained in Clinton v. City of New York, "Our first President understood the text of the Presentment Clause as requiring that he either 'approve all the parts of a Bill, or reject it in toto.'" 524 U.S. 417, 440 (1998) (quoting 33 Writings of George Washington 96 (J. Fitzpatrick ed., 1940). As a practical matter, two centuries of practice have established that the President may decline to enforce unconstitutional provisions of statutes that he or a former President has signed. See generally Calabresi & Yoo, (arguing that 220 years of practice establishes such a power).
55. In his concurring opinion in Whitman, Justice Stevens said that he agreed with Justice Scalia that the Clean Air Act (CAA) had constitutionally delegated the power to promulgate National Ambient Air Quality Standards (NAAQS). 531 U.S. at 487 (Stevens, J., concurring in part and concurring in the judgment).
56. Conservatives' use of constitutional originalism is, as has been widely noted, selective. See generally Part III. D (describing the late 1990's "federalism" campaign); see also James E. Ryan, Laying Claim to the Constitution: The Promise of New Textualism, 97 Va. L. Rev. 1523 (2011) (describing the transition from "originalism" to "new textualism" and the subsequent shift to a focus on statutory and constitutional text).
57. Congress has used unconstitutional restrictions on the removal power to bring administrative agencies under its control. Under the for-cause removal requirements upheld in Humphrey's Executor v. United States, the President is often unable to remove executive officers for reasons related to policy. 295 U.S. 602 (1935). When an executive officer meets the requirements of the for-cause removal requirements in Humphrey's Executor-"inefficiency, neglect of duty, or malfeasance in office"-Congress and the President can both agree that the officer needs to be removed. (quoting Federal Trade Commission Act, ch. 311, § 1, 38 Stat. 717, 718 (1914) (internal quotation mark omitted). This means that the President can never really remove an executive officer subject to these types of for-cause removal requirements on his own. See generally Calabresi & Yoo, at 417-31 (arguing that the President has never acquiesced in the constitutionality of such limits on the removal power). As a result, the President has no meaningful influence over-and more importantly, no meaningful accountability for-the policies implemented by his subordinates. See Morrison v. Olson, 487 U.S. 654, 729-31 (1988) (Scalia, J., dissenting). The question of statutory restrictions on the removal power first came before the court in Shurtleff v. United States, 189 U.S. 311 (1903). Congress had created an "office of general appraiser of merchandise, " the holder of which "may be removed from office at any time by the President for inefficiency, neglect of duty, or malfeasance in office. " (quoting Customs Administrative Act, ch. 407, § 12, 26 Stat. 131, 136 (1890). The general appraiser contended that this statutory language precluded the President from removing him from office for reasons beyond those expressly stated. Justice Peckham ruled that the President could remove the general appraiser for reasons not written into the statute, but noted that the general appraiser "is entitled to notice and a hearing" when the President seeks to remove him for the causes listed. Justice Peckham reasoned that construing the statute to preclude the President from removing the general appraiser for causes beyond those in the statute would have the bizarre effect of giving the general appraiser life tenure. The for-cause removal clause in Shurtleff gave an executive officer the opportunity to defend himself against allegations of "inefficiency, neglect of duty or malfeasance in office, " but it in no way restricted the power of the President to remove executive officers. In Humphrey's Executor, the Court ruled that the inclusion of term limits in a statute that contained the exact same for-cause removal language as that analyzed in Shurtleff precluded the President from removing commissioners of the Federal Trade Commission (FTC) because "the fixing of a definite term subject to removal for cause... is enough to establish the legislative intent that the term is not to be curtailed in the absence of such cause. " Humphrey's Executor, 295 U.S. at 623. Justice Sutherland denied that the FTC was part of the Executive Branch, writing that the court instead faced "the serious question whether... members of these quasi-legislative and quasi-judicial bodies... continue in office only at the pleasure of the President. " Justice Sutherland even supported the notion advanced by Congress that the FTC should be "independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government. " This similarity to Article III judges belies Congress's intent to give broad judicial powers to administrative agencies. The Court continued its narrowing of presidential removal power in Morrison v. Olson, where Chief Justice William Rehnquist ruled that Congress could create an office of an independent prosecutor-removable only by the Attorney General-to investigate certain members of the Executive Branch. 487 U.S. 654, 660-63 (1988). In his dissent, Justice Scalia pointed out the flaw in Chief Justice Rehnquist's assertion that for-cause removal requirements ensured that the independent prosecutor would be under the control of the Executive Branch. (Scalia, J., dissenting). Justice Scalia explained that "[w]hat we in Humphrey's Executor found to be a means of eliminating Presidential control, the Court today considers the 'most importan[t]' means of assuring Presidential control. " (alteration in original). Both Morrison and Humphrey's Executor show that Congress implements strict for-cause removal requirements when it wishes to eliminate-not merely diminish-Presidential control over executive officers.
58. S. Ct. at 3156. While Roberts drew the line at two levels of for-cause removal restrictions, this constitutional problem persists with only one level of restrictions.
59. The Supreme Court first upheld the constitutionality of legislative courts in the territories in American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511, 543 (1828), and it subsequently allowed them in cases involving public benefits. See, e.g., Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 280 (1855). Legislative courts were further extended to apply when administrative agencies were acting as adjuncts to an Article III court in Crowell v. Benson, 285 U.S. 22, 56-57 (1932). The appropriate extent of authority for administrative agencies and legislative courts is murky at best. As Gary Lawson observed, "the imposition of a civil penalty or fine is very hard to distinguish from the imposition of a criminal sentence (especially when the criminal sentence is itself a fine). " Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1247 (1994). Nevertheless, it is clear that many administrative agencies and legislative courts often exercise powers that, at the very least, approach those properly held by Article III judges.
60. See Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. (1995), at 54-55.
61. Thus, for example, Senator Charles Schumer of New York sits on both the Senate Finance Committee and on the Senate Committee on Banking, Housing, and Urban Affairs. Committee Assignments, Senator Charles E. Schumer, http://schumer.senate.gov/About%20Chuck/committeeassignments.htm (last visited June 4, 2012). Both committees have a jurisdiction which is of real importance to New York State.
62. Michael Stokes Paulsen et al., The Constitution of the United States 197 (2010), at 99-112 (2010) (quoting Alexander Hamilton, Pacificus No. 1, Gazette U.S. (Phila.), June 29, 1793).
63. Michael Stokes Paulsen et al., The Constitution of the United States 197 (2010), at 99-112 (2010) (quoting Alexander Hamilton, Pacificus No. 1, Gazette U.S. (Phila.), June 29, 1793).
64. James Madison, Letters of Helvidius No. 1 (Aug. 24, 1793) (responding to Hamilton).
65. 410 U.S. 113 (1973). When the Supreme Court issues an opinion mandating measures beyond the minimum requirements of the Constitution, it usurps the policymaking powers of Congress and the President. If the Court crafts its own general remedy for a constitutional violation, rather than simply declaring that a specific law or policy is unconstitutional, it limits the range of options from which Congress and the President may choose their own solution. The authors would also like to note that the second and third authors of this Essay do not share the view that Roe v. Wade represents such a usurpation of congressional and executive powers. An example of this misbehavior occurred in 1966 when the Supreme Court held in Miranda v. Arizona that prosecutors "may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. " 384 U.S. 436, 444 (1966). Chief Justice Warren relied heavily upon the decision two years earlier in Escobedo v. Illinois, 378 U.S. 478 (1964), where the Supreme Court had ruled that statements made after a suspect had been denied requests to speak with an attorney were inadmissible. Miranda, 384 U.S. at 440. In Escobedo, however, the Court had declined to establish any further requirements for prosecutors. 378 U.S. at 492. In contrast, Chief Justice Warren's opinion in Miranda abandoned this approach in favor of establishing "concrete constitutional guidelines for law enforcement agencies and courts to follow. " 384 U.S. at 442. The result was a series of four warnings and a requirement of an affirmative waiver, without which statements made in custodial interrogation could not be used in court. Though the Court's intention was to make matters clearer for law enforcement officials, Justice White correctly predicted that the holding left "open such questions as whether the accused was in custody, whether his statements were spontaneous or the product of interrogation, whether the accused has effectively waived his rights, and whether nontestimonial evidence introduced at trial is the fruit of statements made during a prohibited interrogation. " (White, J., dissenting). Another similar example of the Supreme Court legislating from the bench came in Roe v. Wade, when the Court not only invalidated the abortion law in dispute, but also purported to establish elaborate legislative standards for the allowance of abortion laws in each of the three trimesters of pregnancy. 410 U.S. 113, 162-64 (1973). Much in the same way that Justice Warren prescribed a warning in Miranda, Justice Blackmun detailed what he felt were the legally "'compelling' point[s]" during each of the three trimesters of pregnancy and the legal scope of regulation permissible during each trimester.
66. Two decades later, the Court's holding in Planned Parenthood of Southeastern Pennsylvania v. Casey modified Roe beyond recognition, saying that "[a] framework of this rigidity was unnecessary. " 505 U.S. 833, 872 (1992).
67. The Federal Rules of Civil Procedure and the Rules Enabling Act are cases in point. 28 U.S.C. § 2072 (2006).
68. Pub L. No. 104-134, 110 Stat. 1321 (1996) (codified at 42 U.S.C. § 1997e (2006). See also, for example, the litigation that culminated in the Supreme Court saying in Missouri v. Jenkins, 515 U.S. 70, 125-26 (1995), that under some circumstances judges can effectively order a tax increase.
69. See, e.g., Trs. of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819) (broadly construing the Contracts Clause to protect elites at the state level); Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) (same).
70. See, e.g., Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (holding ludicrously that free slaves could not become citizens of the United States and striking down the Missouri Compromise as unconstitutional); Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842) (broadly construing the federal power to recover alleged fugitive slaves).
71. Hammer v. Dagenhart, 247 U.S. 251 (1918) (holding a federal law outlawing child labor unconstitutional); Lochner v. New York, 198 U.S. 45 (1905) (holding a sixty-hour limit on a workweek unconstitutional).
72. Roe v. Wade, 410 U.S. 113 (1973) (extending the right to privacy to include a right to an abortion)
73. Michael Stokes Paulsen et al., The Constitution of the United States 197 (2010), at 283-84 (citing Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right to Consent: Hearing Before the Subcomm. on the Const., Civil Rights and Property Rights of the S. Comm. on the Judiciary, 108th Cong. 32-46 (2003) (statement of Steven G. Calabresi, Professor of Law, Northwestern University School of Law).
74. Griswold v. Connecticut, 381 U.S. 479 (1965) (finding a right to privacy in the penumbras and emanations of the Constitution).
75. Justice Scalia has made this point many times in remarks at Federalist Society conferences, including most recently at a conference on the separation of powers which Professor Calabresi attended on September 1 and 2. Justice Antonin Scalia, Remarks at the Federalist Society's 2011 Separation of Powers CLE Course (Sept. 1-2, 2011).
76. The Court's holdings in Industrial Union Department v. American Petroleum Institute (Benzene Case), 448 U.S. 607 (1980), and in Whitman v. American Trucking Ass'ns, 531 U.S. 457 (2001), make it clear that Chevron deference is not absolute. In order to reconcile the principle behind Chevron-that the Court should "respect legitimate policy choices" made by agency experts, Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 866 (1984)-with the holding in the Benzene Case, Justice Stevens emphasized that "we [the Court] have neither made any factual determinations of our own, nor have we rejected any factual findings made by the Secretary. " Benzene Case, 448 U.S. at 659. Rather, Justice Stevens felt that the Secretary of Labor had ignored a statutory requirement. Similarly, Justice Scalia's opinion in Whitman rested upon a finding that the EPA had interpreted "the statute in a way that completely nullifies textually applicable provisions meant to limit its discretion. " 531 U.S. at 485. These opinions allow Congress to delegate power to executive agencies without the risk that those agencies will be able to use that power in a manner inconsistent with relevant statutes.
77. 524 U.S. 417, 448-49 (1998)
78. See Clinton, 524 U.S. at 446-47.
79. See, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (Stevens, J.) (striking down state-imposed term limits on federal members of Congress).
80. Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 6 The Works of Thomas Jefferson in Twelve Volumes 3, 9-10 (Paul Leicester Ford ed., 1904); Letter from Thomas Jefferson to William Stephens Smith (Nov. 13, 1787), in 5 The Works of Thomas Jefferson in Twelve Volumes, at 360, 362.
81. Letter from James Madison to Thomas Jefferson (Feb. 4, 1790), in 5 The Writings of James Madison, 1787-1790, at 437, 437 n.1 (Gaillard Hunt ed., 1904).
82. There are at least two counterarguments to this proposal worth mentioning. First, it could be argued that Congress has so much to do already that requiring it to revisit every section in the U.S. Code every twenty years would be too time-consuming to be practical. Such a demand would risk turning an opportunity for retrospection into an annual pro forma vote to continue the laws as written. Second, it could also be argued that each vote in Congress is an opportunity for members of Congress to grandstand and raise funds from affected groups. The ability to hold hostage long-settled law for purposes of fundraising from affected groups may risk increasing, rather than decreasing, public perceptions of corruption. Any sunset proposal would, of course, have to be carefully drafted and may be ineffective if not accompanied by other anticorruption reforms.
83. Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. (1995), at 59; Steven G. Calabresi & Nicholas Terrell, The Fatally Flawed Theory of the Unbundled Executive, 93 Minn. L. Rev. 1696, 1700 (2009).
84. There are signs that the Court has abandoned the activist approach employed in Miranda v. Arizona and Roe v. Wade. Justice Kennedy's opinions in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), and Gonzales v. Carhart, 550 U.S. 124 (2007), like Miranda and Roe, dealt with controversial questions concerning individual rights; however, Justice Kennedy wrote judicially restrained opinions for the Court.
85. As mentioned the second and third authors of this Essay do not share this view.
86. Justice Hugo Black objected to the adoption by the Supreme Court of the Federal Rules of Civil Procedure on separation of powers grounds. See Order of Jan. 21, 1963, 374 U.S. 865, 866 (1963).
87. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
88. The Federalist No. 51, at 319 (James Madison) (Clinton Rossiter ed., 2003).
89. 514 U.S. 779 (1995). Congress would have lost substantial institutional power relative to the President and the states had the Supreme Court failed to strike down as unconstitutional state-imposed term limits on service in the Senate and the House of Representatives. Justice Stevens's 5-4 opinion for the Court in U.S. Term Limits was thus of foundational importance both to the separation of powers and to federalism.