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Separation of Powers (i.e., Checks and Balances) in the Domestic Setting A. In General i. "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.'" OLC "Dellinger" Memo at 515 (quoting Buckley v. Valeo) ii. "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 at- tempts to ensure free, responsible, and democratic government." OLC "Dellinger" Memo at 515 (citing Metropolitan Washington Airports Auth. ("MWAA") v. Citizens for the Abatement of Aircraft Noise, Inc.) iii. "The constitutional separation of powers advances this central purpose by 'assur[ing] full, vigorous, and open debate on the great issues affecting the people'; by'placing both substantive and procedural limitations on each [branch]'; and by maintaining a 'system of . . . checks and balances' among the three branches." OLC "Dellinger" Memo at 515-16 iv. The Supreme Court's decisions have employed three distinct principles in resolving separation of powers disputes: a) (1) "Where '[e]xplicit and unambiguous provisions of the Constitution prescribe and define . . . just how [governmental]
powers are to be exercised,' the constitutional procedures must be followed with precision." OLC "Delinger" Memo at 517 (quoting Chadha) b) (2) "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." OLC Dellinger Memo at 517 (quoting Metropolitan Washington Airports Auth. ("MWAA") v. Citizens for the Abatement of Aircraft Noise, Inc.) c) (3) "[L]egislation 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.'" OLC "Dellinger" Memo at 517 (quoting Nixon v. Administrator of Gen. Servs.) v. "[T]he executive branch has an independent constitutional obligation to interpret and apply the Constitution." OLC "Dellinger" Memo at
518 B. Bicameralism and Presentment i. "Where the constitutional text is unequivocal as to the manner in which the branches are to relate, any attempt to vary from the text's prescriptions is invalid. The Court has identified two such express procedures relating to the separation of executive and legislative powers: the bicameralism and presentment requirements for legislation, and the Appointments Clause." OLC "Delinger" Memo at 519 ii. The Constitution of the United States provides that "[e]very Bill which shall have passed the house of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States . . . ." Art. I, SS 7, cl. 2. iii. "Congress's broad authority to take action that has 'the purpose and effect of altering the legal rights, duties, and relations of persons . . . outside the Legislative Branch,' is limited by the procedural requirements of Article I." OLC "Delinger" Memo at 519 (quoting INS v. Chadha) iv. "With a few express exceptions found or rooted in the constitutional text, . . . Article I requires that Congress take such action 'in accord with a single, finely wrought and exhaustively considered, procedure' bicameral passage and presentation to the President followed by presidential signature or bicameral repassage by a two-thirds majority." OLC "Delinger" Memo at 519-20 (quoting INS v. Chadha) a) EXAMPLES of "exceptions found or rooted in the constitutional text" include:
? The appointments clause?????The President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law . . . ." Art. II, SS 2, cl. 2. Ratification of treatiesThe President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators concur . . . ." Art. II, SS 2, cl. 2. v. In Chadha, the Court determined that the one-house veto was unconstitutional under bicameralism and presentment because (1) the one-house veto did not require the approval of both houses of Congress, and (2) the one-house veto did not provide for presentment to the President for signature. In short, Congress may not give itself a
legislative veto over actions of the executive branch inconsistent with the bicameralism and presentment requirements of the Constitution. a) BUT since Chadha, more than two hundred legislative vetoes have been enacted.
??? ?They are all likely unconstitutional, but as a practical matter, the executive has acquiesced. C. Anti-Aggrandizement i. "[T]he anti-aggrandizement principle limits the means by which Congress may influence the execution (or adjudication) of the laws." OLC "Dellinger" Memo at 521. ii. "'[O]nce Congress makes its choice in enacting legislation, its participation ends,' and 'Congress can thereafter control the execution of its enactment only indirectly - by passing new legislation.'" OLC "Dellinger" Memo at 521 (quoting Bowsher v. Synar) iii. "While Congress may inform itself of how legislation is being implemented through the ordinary means of legislative oversight and investigation, the anti-aggrandizement principle forbids Congress, directly or through an agent subject to removal by Congress, from intervening in the decision making necessary to execute the law." (citing Bowsher v. Synar) a) In Bowsher, the Court held that a provision of the Gramm-Rudman Deficit Reduction Act was unconstitutional because it vested in the Comptroller General (an official removable only at the initiative of Congress) the power to make post-enactment decisions about how the executive branch should implement budget reduction legislation. The Court rejected the argument that self-aggrandizing legislation can be upheld when it is as a practical matter harmless or de minimis. iv. "Like the express requirements of the bicameralism/presentment process and the Appointments Clause, the anti-aggrandizement principle puts a powerful constraint on congressional power: legislative action that falls within the scope of the principle is unconstitutional." OLC "Dellinger" at 522 v. "[T]he principle applies only to congressional action that amounts to formal or direct self-aggrandizement - for example, the placement of congressional agents on a body with prosecutorial or law enforcement powers - no matter how limited the power thereby seized by Congress." OLC "Dellinger" at 522 (citing FEC v. NRA Political Victory Fund) vi. "The Court reviews legislation that arguably increases Congress's power indirectly by weakening the executive politically under the less stringent general separation of powers principle." OLC "Dellinger" at
522 (citing Morrison v. Olson) vii. "A significant difficulty in applying the anti-aggrandizement principle arises from the uncertain line between minor (but unconstitutional) aggrandizements and (constitutional) exercises of Congress's broad investigative and oversight powers." OLC "Dellinger" at 522-23 D. Appointments i. "Where the constitutional text is unequivocal as to the manner in which the branches are to relate, any attempt to vary from the text's prescriptions is invalid. The Court has identified two such express procedures relating to the separation of executive and legislative powers: the bicameralism and presentment requirements for legislation, and the Appointments Clause." OLC "Delinger" Memo at 519 ii. The Constitution of the United States provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Art. II, SS 2, cl. 2. a) In Buckley v. Valeo, the Supreme Court held that the terms of the Appointments Clause set out the only means by which Congress may provide for the appointment of "Officers of the United States." OLC "Delinger" Memo at 529 (emphasis added) b) "Principal officers must be appointed by the President with the advice and consent of the Senate; inferior officers will be appointed in the same manner unless Congress by statute provides for their appointment by the President, the 'Head of [a] Department,' or the courts." OLC "Delinger" Memo at 529-30 iii. Issue (1): Who is an "Officer of the United States"?
a) If a person is not an officer, then the appointments clause does not apply. b) If a person is an officer, then the appointments clause does apply. c) "From the early days of the Republic, this term has been understood to embrace the ideas of 'tenure, duration, emolument, and duties.'" OLC "Dellinger" Memo at 530 (citing United States v. Hartwell)
? The Court in Harwell stated the following: An office is a public station, or employment, conferred by the appointment of
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