SEPARATION OF POWERS

Any system of constitutional government must have as one of its central principles some degree of separation of powers. A system of government in which all legal power and authority is exercised by one person or group of people must depend entirely upon their self-restraint in the exercise of that power. The history of government does not suggest that such self-restraint is likely this side of heaven or utopia, and efforts to prevent the abuse of the powers of government have therefore focused on constitutional arrangements that divide and limit the powers of government.

The doctrine of the separation of powers consists of a number of elements: the idea of three separate branches of government, the legislature, the executive, and the judiciary; the belief that there are unique functions appropriate to each branch; and the assertion that the personnel of the branches of government should be kept distinct, no one person being able to be a member of more than one branch of government at the same time. The more pure or extreme the form of the doctrine, the greater the extent to which all three of these elements are insisted upon without reservation or modification. In past centuries political writers have proposed such extreme solutions in France, Britain, and America, and attempts have been made, unsuccessfully, to approximate as closely as possible to this extreme in practice. The spirit of the doctrine was expressed clearly in the Constitution of Virginia in 1776: "The legislature, executive and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other: nor shall any person exercise the powers of more than one of them at the same time.…"

A further aspect of the doctrine is the concern with the method by which the members of the executive and judicial branches are selected, for this will have implications for the extent to which the members of one branch may be able to influence the behavior of members of another. The more extreme versions of the doctrine therefore demand the direct election of members of all three branches of government in order that they should be responsible directly to the people, and not dependent upon each other. In the words of Samuel Williams, historian of Vermont, in 1794, "the security of the people is derived not from the nice ideal application of checks, balances, and mechanical powers, among the different parts of the government, but from the responsibility, and dependence of each part of the government, on the people."

The doctrine of the separation of powers, standing alone, however, has never been able to provide the kind of safeguards against the abuse of governmental power which it claims to provide. In practice we find that checks and balances are required to prevent one or another branch of government from becoming too dominant. The idea of internal checks, exercised by one branch of government over the others, is drawn from the ancient theory of mixed government, and from the eighteenth-century "mixed and balanced constitution" of Great Britain. Thus james madison, in the federalist #48, undertook to show that unless the branches of government "be so far connected and blended as to give each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained." All constitutional systems of government are therefore an amalgam of the separation of powers and checks and balances. The exact composition of this mixture was a central problem for the Framers of the federal Constitution, and their solution distinguished presidential-congressional government from parliamentary systems.

The emergence of a full-blown doctrine of the separation of powers was the result of a long process of development, involving the refinement of a set of concepts, including the idea of law itself, which today we largely take for granted. In early times the idea of law was very different from the modern concept of legislation or statute law. The latter view of law, consciously drafted and adopted by human rather than divine will, did not emerge clearly until the battle between king and parliament in seventeenth-century England sharpened the perception of law, lawyers, and politicians. The more radical opponents of royal power conceived of a parliament that was representative of the people, making laws which the king, or some other executive power, should put into effect. In the turmoil of civil war, this doctrine of the separation of powers was fashioned by a number of writers until it reached a recognizably modern form.

As the British constitutional crisis deepened, the doctrine was refined by those who, like john milton, pointed to the arbitrary character of the Long Parliament, Henry Ireton in the Whitehall debates of 1649, and john lilburne in The Picture of the Councel of State asserting that "the House itself was never (neither now, nor in any age before) betrusted with a Law executing power, but only with a Law making power." John Sadler in his The Rights of the Kingdom of 1649 asserted the basis of the separation of powers very clearly. The three powers of government, legislative, judicial, and executive, "should be in Distinct Subjects; by the Law of Nature, for if Lawmakers be judges, of those that break their Laws; they seem to be judges in their own cause: which our Law, and Nature itself, so much avoideth and abhorreth, so it seemeth also to forbid, both the Lawmaker, and the Judge to Execute."

The execution of Charles I and the establishment of republican government stripped away the remaining vestiges of mixed government and left the separation of powers as the sole constitutional principle for the organization of the government of Great Britain. The Commonwealth produced the first written constitution of modern times, the Instrument of Government of 1653, and the doctrine of the separation of powers clearly inspired its authors. This document vested the supreme legislative authority in the lord protector and the people assembled in Parliament, but in effect the role of the protector in legislation was to be limited to a suspensive veto of twenty days. The Instrument also provided that "the exercise of the Chief Magistracy and the administration of the Government … shall be in the Lord Protector, assisted with a Council." Although the Instrument of Government was never an effective basis for government, from that time on the theory of the separation of powers emerged and reemerged whenever demands were made to limit the power of governments. The official defense of the Instrument, A True State of the Case of the Commonwealth, published in 1654, and probably written by Marchamont Nedham, expressed the theory behind the constitution when it criticized earlier institutional arrangements "which placing the legislative and executive powers in the same persons is a marvellous in-let of corruption and tyranny." At this point the idea of a judicial power distinct from the executive was still relatively undeveloped, to emerge more fully at the end of the seventeenth century, and then to blossom in the work of montesquieu and william blackstone, and to be embodied in the Constitution of the United States.

With the restoration of Charles II in 1660 the basis of a new theory of the constitution was required. The principle of the separation of powers must be reasserted, as it was by john locke, but in the context of a "mixed and balanced" constitution, incorporating a role for the monarch and for the House of Lords. This amalgam of the separation of powers and checks and balances, the constitution of the Augustan Age of British politics, was lauded as the model of "a constitution of liberty." Montesquieu is popularly credited with a major role in the development of the separation of powers, but the theory was developed a hundred years before the publication of The Spirit of the Laws (1748). Indeed it is the influence of his work, particularly in the American colonies, rather than any intellectual contribution to the separation of powers, that gives such significance to the work of Montesquieu. Montesquieu's contribution to the separation of powers was essentially his modern emphasis upon the three powers of government and the clear recognition of the importance of the power to judge, a point driven home by Blackstone in his Commentaries on the Laws of England (1765–1769). Blackstone, whose work was known to every lawyer in the American colonies, took Montesquieu's rather feeble notion of the judicial power and clothed it with the majesty of the English judges.

From the time of the first English settlements in America there was a continual interplay between ideas and events in the home country and the developing politics of the colonies. Mixed government and the separation of powers were common subjects of discussion in Massachusetts in the seventeenth century, and the constitutional debates over the role of king and parliament in England had their repercussions in America. In 1644, the elders of the church described the government of Massachusetts Bay as not a "pure aristocracy, but mixt of an aristocracy and democracy" and defended the "negative voice" which the governor and assistants exercised over decisions of the legislature. In 1679 the elders affirmed that the government of Massachusetts consisted in the "distribution of differing interest of power and privilege between the magistrates and freemen, and the distinct exercise of legislative and executive power." This statement preceded by eleven years the publication of Locke's Second Treatise. In the eighteenth century American thought fell into the same mold as that of other eulogists of the English constitution, adapting the terminology where necessary to fit the circumstances of colonial governments, until the increasing conflict between the English Parliament and the colonists brought to the foreground those aspects of the English system that were attracting criticism both at home and abroad, the cabinet system and the corrupt and unrepresentative House of Commons. In the colonies, Americans saw the mixing of legislative, executive, and judicial functions in the governors' councils and in the abuse of power by royal governors. With the upsurge of revolutionary fervor the doctrine of the separation of powers lay ready to hand, both as a stick with which to beat the British and as the basis for a truly American system of government.

The American achievement was to transform the theory of the mixed constitution, in which the powers of government were distributed among monarchy, aristocracy, and democracy, into a functionally divided system in which king and peers had no part, turning a class-based structure into one in which all the different branches of government drew their authority from the people. The first step in this process was taken when the revolutionary state constitutions were established in 1776 and succeeding years. These constitutions contained broad affirmations of the separation of powers, but the checks and balances of the British model were out of favor. Consequently, popularly elected legislatures became the dominant branch of government.

The state legislatures soon began to act in ways that raised fears that the separation of powers, if not buttressed in some other way, meant that in practice, in thomas jefferson's words, "All the powers of government, legislative, executive, and judiciary, result to the legislative body." The need for positive checks to the exercise of power was increasingly apparent. The Essex Result of 1778, recommending the form which the new constitution for Massachusetts should take, noted that "Each branch is to be independent, and further, to be so balanced, and able to exert such checks upon the others, as will preserve it from dependance on, or a union with them." Madison summed up the situation in The Federalist #48: "The conclusion that I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands."

It was necessary therefore that the departments of government should "be so far connected and blended as to give to each a constitutional control over the others": the President to have a qualified veto power and the pardoning power, the Senate to play a part in appointments and in the ratification of treaties, and the Supreme Court, by implication at least, to have the power to declare legislative acts to be unconstitutional. As Madison observed in The Federalist #48, the three branches of government, although separate, must be "connected and blended" to ensure that each has some "constitutional control over the others."

Thus the separation of powers was not destroyed but rather reinforced by the adoption in the Constitution of a number of checks and balances. Although in some degree this represented a reversion to the pattern of the English Constitution, there was one vital respect in which no one wished to see the English model adopted. The popular denigration of George III as a tyrant in the revolutionary situation was understandable, but the members of the constitutional convention had a much deeper understanding of the British political system. They understood the nature of the "Cabinet Council composed entirely of the principal officers of the great departments," they understood the role of the king's ministers in the legislature, and they knew well the system of crown influence and the role of unqualified members of the House of Commons. Their rejection of the whole basis of linking the executive and legislative branches of government in this way was complete, and Article I, section 6, of the Constitution, which provided that "no Person holding any Office under the United States, shall be a Member of either House during his Continuence in Office," was adopted without hesitation.

What then have been the practical effects of the separation of powers on the legal and political system of the United States? These effects can be seen in two broad, related areas: the decisions of the Supreme Court relating to "the powers of government," and the political articulation of the American system.

The Supreme Court has faced a number of difficulties which arise from the confusions inherent in the way the "separation of powers" evolved. The term "separation of powers" is sometimes used, as here, to refer to the doctrine that the major branches of government should be kept separate and limited to their own functions, but quite often the term is also used to include the checks and balances in the Constitution, which derive their rationale from a different source. Second, the word "power" is used ambiguously to mean both "branch" and "function." Finally, most of the Court's problems arise from the need to define the functions of government when it is argued that a particular branch has engaged in an activity outside its "proper" function. When the Constitution itself makes what the Court in baker v. carr (1962) called "a textually demonstrable commitment" of an issue to a coordinate branch of government, then the Court has only to determine that to be the case, but what does the text demonstrate when it refers to "the legislative power" or "the executive power"? Such terms are vague indeed. The nub of the problem is that the functions of government can be defined only in the broadest conceptual terms—making rules, carrying rules into effect, and settling disputes arising out of the application of rules—but few activities of government fall unambiguously into such categories. The difficulty is particularly acute in any effort to categorize the exercise of the discretionary powers of government which the traditional doctrine of the separation of powers did not encompass. Indeed, the doctrine had been developed largely to render ineffective the exercise of such discretion in the form of the prerogatives of the Crown in England, or in the exercise of the powers of the governors in the American colonies.

As a consequence of these difficulties the Court has generally followed a pragmatic course in its decisions on the separation of powers. In practice the Court has generally accepted that no precise "watertight definition of government powers is possible." The first major issue facing the Supreme Court was to define its own role in the system of separation of powers and checks and balances. The Anti-Federalist and Jeffersonian interpretations of the Constitution looked back to the strict view that each branch of government not only should be separate from the others but also should not be dependent upon them, and therefore not subject to their control. Such an interpretation would rule out judicial review as it has come to be exercised in the United States, and faint echoes of this attempt to escape the jurisdiction of the Court have been heard as recently as President richard m. nixon's claim to an absolute executive privilege for tape recordings of his conversations with his aides. However, in marbury v. madison (1803) Chief Justice john marshall emphatically asserted that it was "the province and duty of the judicial department to say what the law is"—and, in the course of doing so, to rule upon the extent of the power and functions of the other branches of government. Respect is due to the interpretations put on the Constitution by other branches, but in the end, as the Court said in united states v. nixon (1974), "the ' judicial power of the united states ' vested in the federal courts by Art. III Sec. 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and checks and balances that flow from the scheme of a tripartite government." The Court has, of course, accepted that interference in the activities of the other branches of government, in particular the Congress, is a delicate and sensitive matter. The political questions doctrine protects the Court against becoming embroiled in matters that could drag it down into the morass of day-to-day politics, but the Court itself retains the right to determine what is, and what is not, a political question.

The Supreme Court has set limits to the exercise of the legislative powers of Congress either to interfere directly in litigation, to interpret earlier legislation, or to set aside decisions of courts already made. It has also ruled that, as in hayburn ' scase (1792) and United States v. Ferreira (1853), Congress cannot impose upon the courts duties not considered to be judicial in character. In two major decisions the Supreme Court announced that the houses of Congress could not properly appropriate to themselves a judicial function. In kilbourn v. thompson (1881) the Court concluded that in committing a witness to prison for refusing to testify before a committee the House of Representatives had "not only exceeded the limit of its own authority, but assumed power which could only be properly exercised by another branch of the government, because the power was in its nature clearly judicial." And obiter dictum in watkins v. united states (1957), the Court said, "Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government."

The Supreme Court has also prevented Congress from trenching upon the powers of the executive branch. In myers v. united states (1926) the Court held that Congress could not limit by statute the President's power to remove executive officers, although in humphrey ' sexecutor v. united states (1935) it upheld congressional restrictions on the President's power to dismiss officers of independent regulatory agencies; and in buckley v. valeo (1976) the Court invalidated the attempt by Congress itself to make appointments to the Federal Elections Commission. The Court quoted with approval the decision in Springer v. Philippine Islands (1928): "Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions."

In general the Supreme Court has been generous in its interpretation of the powers of the President. However, in two important instances the Court has checked presidential power. In youngstown sheet and tube company v. sawyer (1951) the Court held unconstitutional President Harry S. Truman's attempt to take over steel mills by executive order, on the ground that "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad." And in United States v. Nixon (1974) the Court rejected the President's claim of executive privilege against a court order to produce tapes and documents relating to the Watergate investigations.

The area in which the Supreme Court has been subjected to the greatest degree of criticism for failing to maintain the spirit and practice of the separation of powers has been the way in which it has handled the question of the delegation of power by Congress to the executive branch and to independent regulatory commissions. In the modern administrative state, complex regulatory activities on the part of government necessitate agencies that will make rules (subordinate to statute law), apply those rules, and decide disputes arising out of their actions. The United States Congress, in establishing a large number of such agencies, has created a "headless fourth branch" of government. These agencies, in the words of Justice robert h. jackson in Federal Trade Commission v. Ruberoid Company (1952), "have been called quasi-legislative, quasi-executive or quasi-judicial, as the occasion required, in order to validate their function within the separation of powers scheme of the Constitution. The mere retreat to the qualifying "quasi' is implicit with confession that all recognized classifications have broken down, and "quasi' is a smooth cover which we draw over our confusion as we might use a counterpane to conceal a disordered bed." Although the Court has said "that the legislative power of Congress cannot be delegated," in practice it has allowed very broad and ill-defined delegations of power to administrative agencies. In two instances such delegation of power has been disallowed: panama refining co. v. ryan (1935) and schechter poultry corp. v. united states (1935). In the latter case the Court asserted that the proper delegation of power required Congress to establish "standards of legal obligation, thus performing its essential legislative function." Failure to enact such standards for the administrative agency to follow would be an attempt to transfer the legislative function of Congress to others. However, in numerous cases the Court has allowed delegation with little in the way of effective standards set by Congress, and giving to the administrative agency, as in the Permian Basin Area Rate Cases (1968), a wide and uncontrolled discretion. In the field of foreign affairs the delegation of legislative power to the President and his ability to negotiate with foreign powers and make executive agreements with them, are very wide indeed, as the Court recognized in united states v. curtisswright export corp. (1936).

In all these areas of tension between the branches of government, therefore, the Supreme Court, despite the broad generalizations which appear from time to time in its opinions, has followed a pragmatic approach to the separation of power. However, in immigration and naturalization service v. chadha (1983) the Court, in the opinion of some, adopted a more theoretical and formal line of argument. In Chadha the Court invalidated the use of the legislative veto, the device by which Congress reserved to itself the right to review administrative regulations and decisions taken under some 200 different statutes. The opinion, written by Chief Justice warren e. burger, concentrated on the narrow constitutional issues of "presentment" of legislation and bicameralism, but referred to the theory of the separation of powers in the Constitution as dividing the powers of government into "three defined categories, legislative, executive and judicial" which are "functionally identifiable." An alternative approach was put by Justice lewis f. powell in a concurring opinion. His objection to the use of the legislative veto in this particular instance was that the House of Representatives had improperly exercised a judicial power by ruling on the case of a particular individual rather than making a general rule. In taking this position Justice Powell was appealing to an element of the separation of powers of long standing and of great importance: the generality of law, restricting the legislative power to the general rather than the particular.

Some critics of the Supreme Court argue with philip kurland that as a consequence of its decisions "the ancient concept of the separation of powers and checks and balances has been reduced to a slogan, to be trotted out by the Supreme Court from time to time as a substitute for reasoned judgment." Whether or not this assessment of the judicial history of the separation should be considered too harsh, the impact of the concept upon the dayto-day working of the American political system has undoubtedly been enormous in terms of the relationship between the administration and the Congress. The prohibition on simultaneous membership of the legislative and executive branches in Article I, section 6, of the Constitution distinguishes the American system from the vast majority of genuinely democratic regimes in the world, most of which follow the parliamentary model. The fact that the President and his administration must operate from outside the legislature, rather than from within it, makes a vast difference to the techniques that must be employed to gain the acquiescence of the legislature to policies proposed by the executive. Much more important than the distinction between legislative and executive functions is the fact of two distinct branches of government with no overlapping of personnel (the Vice-President of the United States excepted). This strict separation of the personnel of government is certainly not the only reason why American political parties are so decentralized, diffuse, and undisciplined, but it is certainly a very important factor. The consequences for the way in which government policies are formulated, evolved, enacted, and implemented are immeasurable.

M. J. C. Vile
(1986)

Bibliography

Barber, Sotirios A. 1975 The Constitution and the Delegation of Congressional Power. Chicago: University of Chicago Press.

Elliott, E. Donald 1984 INS v. Chadha : The Administrative Constitution, the Constitution, and the Legislative Veto. Supreme Court Review 1983:125–176.

Gwyn, W.B. 1965 The Meaning of the Separation of Powers. New Orleans: Tulane University Press.

Kurland, Phillip B. 1978 Watergate and the Constitution. Chicago: University of Chicago Press.

Schwartz, Bernard 1963 A Commentary on the Constitution of the United States. New York: Macmillan.

Vile, M.J.C. 1967 Constitutionalism and the Separation of Powers. Oxford: Oxford University Press.