The Constitutional Separation of Powers Between the President and Congress, 96-17

Decision Date07 May 1996
Docket Number96-17
Citation20 Op. O.L.C. 124
CourtOpinions of the Office of Legal Counsel of the Department of Justice
PartiesThe Constitutional Separation of Powers Between the President and Congress

WALTER DELLINGER Assistant Attorney General Office of Legal Counsel.

The Constitutional Separation of Powers Between the President and Congress

This memorandum provides an overview of the constitutional issues that periodically arise concerning the relationship between the executive and legislative branches of the federal government. Although that relationship is shaped in part by the policy and political concerns of the President and Congress of the day, the political interaction between the President and Congress takes place within an enduring constitutional framework that confers powers and responsibilities on both elected branches. In this memorandum we discuss the general principles underlying separation of powers analysis, and we address certain specific questions that have arisen in the past. Any set of examples is necessarily illustrative rather than exhaustive, however, and the Office of Legal Counsel is always available to assist in reviewing legislation or other congressional action for potential separation of powers issues.[*]

Table of Contents
I. General Principles 125
A. Express Procedures: The Bicameralism and Presentment Requirements and the Appointments Clause 129
B. The Anti-Aggrandizement Principle 131
C. The General Separation of Powers Principle 133
II. Common Separation of Powers Issues 135
A. Bicameralism/Presentment Questions 135
B. Appointments Clause and Related Questions 139

1. Who is Required to Be an Officer of the United States? 139

a. Employment by the Government: The Distinction between Appointees and Independent Contractors 140

b. The Exercise of Significant Authority 143

c. Appointment to a Position of Employment within the Federal Government 145

d. Summary 148 2. Who May Be an Inferior Officer? 149

3. Who May Appoint Inferior Officers? 151 [ 125]

4. Legislation Lengthening the Tenure of an Officer 153

5. Legislation Imposing Additional Duties on an Officer 157

6. The Ineligibility and Incompatibility Clauses 159

7. The Recess Appointments Clause 161

8. Acting and Interim Appointments 161

9. Other Issues of Combined, Collective, and Interbranch Authority and the Appointments Clause 164

C. Removal Power Issues 166

1. The Executive's Removal Power 166

2. Congressional Removal Power 170

D. Issues Involving the Boundaries of the Legislative Sphere 171

1. The Paradox of Congressional Agencies 172

2. Reporting Requirements 173

3. Congressional Agents in Non-Legislative Contexts 175

E. The General Separation of Powers Principle 176
F. Statutory Construction 178
III. Constitutional Requirements and Policy Concerns 180
I. General Principles

The Constitution reflects a fundamental conviction that governmental "power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it." The Federalist No. 48, at 332 (James Madison) (Jacob E. Cooke ed., 1961), quoted in Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 273 (1991) ("MWAA"). The founders, not content to rely on paper definitions of the rights secured to the people, "viewed the principle of separation of powers as a vital check against tyranny." Buckley v. Valeo, 424 U.S. 1, 121 (1976) (per curiam). In order to safeguard liberty, therefore, the Constitution creates three distinct branches of government-Congress, the President, and the federal judiciary - and assigns to them differing roles in the exercise of the government's powers. The resulting division of governmental authority is not a mere set of housekeeping rules indicating which branch presumptively performs which functions; it is, rather, a fundamental means by which the Constitution attempts to ensure free, responsible, and democratic government. See MWAA, 501 U.S. at 272 ("The ultimate purpose of this separation of powers is to protect the liberty and security of the governed."). The constitutional separation of powers advances this central purpose by "assuring] full, vigorous, and open debate on the great issues affecting the people";[1] by "placing both substantive and procedural limitations on each [ 126] [branch]";[2] and by maintaining a "system of . . . checks and balances" among the three branches.[3]

Although the structure of the Constitution is designed to obviate the danger to liberty posed by each of the branches, [4] the founders were particularly concerned with the Congress's potential for improvident or overreaching action: "the tendency of republican governments is to an aggrandizement of the legislature] at the expense of the other departments." The Federalist No. 49, at 315-16 (James Madison) (Clinton Rossiter ed., 1961), cited in United States v. Brown, 381 U.S. 437, 444 n.17 (1965). Many specific aspects of the Constitution's separation of governmental powers embody the founders' "profound conviction . . . that the powers conferred on Congress were the powers to be most carefully circumscribed" and the founders' recognition of the particular "'propensity'" of the legislative branch " 'to invade the rights of the Executive.' " INS v. Chadha, 462 U.S. 919, 947 (1983) (quoting The Federalist No. 73, at 442 (Alexander Hamilton) (Clinton Rossiter ed., 1961)). Executive branch lawyers thus have a constitutional obligation, one grounded not in parochial institutional interests but in our fundamental duty to safeguard the liberty of the people, to assert and maintain die legitimate powers and privileges of the President against inadvertent or intentional congressional intrusion. As Attorney General William Mitchell put it long ago:

Since the organization of the Government, Presidents have felt bound to insist upon the maintenance of me Executive functions unimpaired by legislative encroachment, just as die legislative branch has felt bound to resist interferences with its power by die Executive. To acquiesce in legislation having a tendency to encroach upon die executive authority results in establishing dangerous precedents.

Constitutionality of Proposed Legislation Affecting Tax Refunds, 37 Op. Att'y Gen. 56, 64 (1933).[5]

The Constitution, however, "by no means contemplates total separation of each of these three essential branches of Government." Buckley, 424 U.S. at 121. Instead, "'[w]hile the Constitution diffuses power the better to secure liberty, it [ 127] also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."' Mistretta v. United States, 488 U.S. 361, 381 (1989) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)). The Constitution thus guards against "the accumulation of excessive authority in a single Branch" not by providing mutually exclusive lists of executive, legislative, and judicial powers, but by imposing on each of the three branches "a degree of overlapping responsibility, a duty of interdependence as well as independence." Id. at 381.[6] The constitutional boundaries between the powers of the branches must be determined "according to common sense and the inherent necessities of the governmental co-ordination." J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928).

Some general observations on the sources and methodology we employ in analyzing separation of powers questions are appropriate. We believe that the constitutional structure obligates the executive branch to adhere to settled judicial doctrine that limits executive and legislative power. While the Supreme Court's decisions interpreting the Constitution cannot simply be equated with the Constitution, we are mindful of the special role of the courts in the interpretation of the law of the Constitution. "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177(1803).

The Supreme Court's decisions interpreting the constitutional separation of powers among Congress, the President, and the courts recognize the founders' basic concern over the "encroaching nature" of power, as well as their specific belief that Congress is potentially the most dangerous branch. "It is this concern of encroachment and aggrandizement that has animated our separation-of-powers jurisprudence and aroused our vigilance against the 'hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power.' " Mistretta, 488 U.S. at 382 (quoting Chadha, 462 U.S. at 951). The Court's decisions have employed three distinct principles in resolving separation of powers disputes. First, where "[e]xplicit and unambiguous provisions of the Constitution prescribe and define just how [govemmental] powers are to be exercised, " Chadha, 462 U.S. at 945, the constitutional procedures must be followed with precision. Second, where the effect of legislation is to vest Congress itself, its members, or its agents with "'either executive power or judicial power, ' " the statute is unconstitutional. MWAA, 501 U.S. at 274 (quoting Hampton, 276 U.S. [ 128] at 406).[7] Finally, legislation that affects the functioning of one of the other branches may be unconstitutional if it prevents the affected branch "from accomplishing its constitutionally assigned functions." Nixon v. Administrator of Gen. Servs., 433 U.S. at 443 (legislation affecting the executive branch); accord CFTC v. Schor, 478 U.S. 833, 851, 856-57 (1986) (legislation affecting the...

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