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Separation of Powers

Td Note #6 – U. S. Constitution:
Selected Separation of Powers Provisions

“[Liberty] is always at stake when one or more of the branches seeks to transgress the separation of powers.” [1]

The Constitution does not explicitly state there is a separation of powers. Rather, the separation of powers is implied in the first three articles of the Constitution. The first three articles establish the three branches of government and allocate powers among them. This Note discusses those articles and some of the Supreme Court’s interpretations of the articles as they relate to the separation of powers.

ARTICLE I – CONGRESS (Senate & House of Representatives):

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Article I, Section 1.

Legislative powers are those powers necessary to enact, amend, or appeal laws. Congress’ legislative power is limited to the legislative power authorized within the Constitution. All legislative power granted by the Constitution resides in Congress.

Congress, by passing laws, can delegate some of its legislative power to an agency in the Executive branch, if it provides instructions that enable the agency to stay within the delegated power. Because a delegation is by laws, Congress must abide by its delegation of authority until Congress legislatively alters or revokes the delegation. Congress cannot delegate any legislative power to the judiciary, and the judiciary cannot encroach on any of Congress’ legislative powers.

In Article I, Section 7, the Constitution establishes two requirements for establishing laws: bicameral action and presentment to the President. Bicameral action requires all legislation to pass both the House and the Senate. Presentment to the President provides him the opportunity to veto the bill. Without the President’s signature, a bill cannot become law; unless the President fails to veto the bill within ten days of its presentment, in which case the bill does become law. Congress can override a veto with at least two-thirds of both the House and the Senate voting in favor of the override.

Because the Constitution assigns all legislative power to Congress and only Congress, Article I, Section 7 prohibits the President from cancelling any law that Congress has not authorized him to cancel. For example, if Congress passes a law authorizing the Executive branch to implement a new Health Care system and grants the President some discretion in determining eligibility requirements but does not grant any discretion in the requirements for the roll-out schedule, the Executive branch cannot change the dates of the roll-out.

Another example concerns naturalization. Naturalization is the process of granting citizenship to persons born outside the United States. Congress has the power “to establish an uniform Rule of Naturalization.” Art. I, Sec. 8, cl. 4. The Founders enumeration of naturalization as a Congressional power evidences the importance they placed on Congress controlling the naturalization process. With the republic being a government of the people, the Founders foresaw the need for the people to have the most direct say in the way foreigners joined the citizenry.

Finally, Congress has the power to impeach and convict members of the Executive and Judicial branch. Only the House can impeach, and only the Senate can convict. Art. I, Sec. 2, cl. 5 and Art I, Sec. 3, cl. 6. Congress can impeach and convict the President, Vice President, and all officers of the United States for “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, Sec. 4. The law and the Constitution do not clearly define “high Crimes and Misdemeanors.”

It is left to Congress on a case-by-case basis to determine when they occur. For example, when President Nixon was impeached, the House found, among other things, he violated his oath to protect and defend the Constitution. When the House impeached President Clinton, they found he impeded the administration of justice and willfully lied to a grand jury.


“Congress shall have Power to make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of United States, or in any department or Officer thereof.”

This clause enables Congress to tell the President and Judicial branch how they can use their powers. For example, they could tell the President he cannot send troops anywhere without Congress’ consent. Congress, if it had the political will, could challenge Executive Orders under the Necessary and Proper Clause.

The Necessary and Proper Clause does not trump the Commander in Chief Clause (Art. III, Sec. 2, cl. 1).


“The executive Power shall be vested in a President of the United States of America.” Art. II, Sec. 1, cl. 1.

Executive power is necessary to implement and enforce the laws passed by Congress. The Executive branch has the authority and the responsibility to implement the policies adopted by Congress and to enforce the laws of the land. Art. II, Sec. 3 compels the President to “take Care that the Laws be faithfully executed.” The Executive branch has sole authority to implement and enforce public policy and the laws of the land.

The President’s oath of office further affirms the President’s power and responsibilities:

“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: ‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’” Art. II, Sec. 1, cl. 7.

The President’s oath of office binds him to act in accordance with the Constitution, and it forms a basis for impeachment if he does not.

The President has sole power to make treaties and to appoint Ambassadors, Supreme Court Justices, and other United States officers. To be effective, the Senate must consent to the treaties and appointments. Art. II, Sec. 2. The Founders anticipated a balance between the President’s appointment power and the Senate’s consent power. However, the process has deteriorated to the point the President holds the upper hand in the process. The process is now a grandstanding event for Senators and is without a substantive review of the appointees.

Following are some Supreme Court rulings that clarify Presidential powers:

• The President’s power to issue an order must either come from an act of Congress or the Constitution. Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952).

• If the President continues to encroach on Congress’s turf and Congress remains silent, Congress acquiesces the power encroached upon to the President. There must be a long standing, systematic history of the Presidential encroachment. An action occurring only a few times, e.g. 3, does not relinquish the power. Youngstown, J. Frankfurter, concurring.

• The President’s power fluctuates, depending on whether his action is aligned with that of Congress. When the President acts consistent with a Congressional authorization, implied or expressed, he has maximum authority. When the President acts in the absence of a Congressional grant or denial of authority, his authority is not clear and is case specific. When the President takes measures inconsistent with current laws enacted by Congress, his power is at its lowest or absent. Youngstown, J. Jackson, concurring.

• “Whenever the President cancels an item of new direct spending or a limited tax benefit he is rejecting the policy judgment made by Congress and relying on his own policy judgment.” Clinton v. New York, 524 U.S. 417 (1998): (Addressing President Clinton’s actions under the Line Item Veto Act).

• “Cancellations pursuant to the Line Item Veto Act are the functional equivalent of partial repeals of Acts of Congress that fail to satisfy Article I, § 7.” (Presentment Clause & Bicameral legislature). Clinton.

• The government argued that actions under the line item veto were no different than the President’s authority to decline to spend appropriated funds. Unlike prior statutes that allow such Presidential action, the Line Item Veto Act allowed the President to change the actual text of the law. In other words, the President has the authority to not spend appropriated funds and to decide how to allocate appropriated funds, but he does not have the authority to not faithfully execute the law. Willfully choosing not to enforce a law, when adequate funds are appropriated, is not faithful execution of the law. Clinton.

• The President does not have discretionary authority on the spending of appropriated funds when Congress has not granted him such authority. Train v. City of New York, 420 U.S. 35 (1975).

• Congress may confer discretion to the President to withhold appropriated funds, even funds appropriated for a specific purpose. Train.

ARTILCLE III – JUDICIARY (Supreme Court & Inferior Federal Courts):

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and the inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in office.” Art. III, Sec. I.

The Supreme Court is the ultimate interpreter of the laws of the land, with the Constitution being the supreme law of the land. The Judiciary has sole authority and the duty to say what the law is. The courts do not make the laws, but they do hear cases that question how to apply the law. The courts are driven by the cases and controversies that are brought to them. They do not institute cases on their own.

The Constitution does not specify how many justices are on the Supreme Court. Congress establishes the number of justices by passing legislation. During the nation’s history the number has varied from five to ten justices. Congress has left the number of justices at nine since 1869.

During FDR’s presidency, Congress passed and the President signed several bills creating the initial Administrative State. The Supreme Court found many of them unconstitutional because they combined legislative, executive, and judicial functions in single government agencies. FDR threatened to nominate enough justices to establish a majority on the Court to rule for his programs. As a result, the Court began finding bills constitutional even though they established administrative agencies.

When there is a dispute between the Legislative and Executive branches, the Constitution is not clear on the Judiciary’s role. The following two court cases provide some guidance:

• When there is a Constitutional dispute between the Legislative and Executive branches, the Judicial branch should hear the case. Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803). Since the courts do not take any action until a case is brought to them, the court cannot resolve a conflict between the Legislative and Executive branch until one of the branches files a complaint in a court with jurisdiction.

• The Political Dispute Doctrine adds to the murky waters. The doctrine holds that the court should not hear cases that are political in nature. Political issues involve the discretionary power of the other two branches. A 1962 case attempts to guide the courts in determining whether an issue is political. Baker v. Carr, 369 U.S. 186, 217 (1962). When a case is political it has at least one of the following characteristics:
o the text of the Constitution or a law clearly grants the issue to one of the branches; or
o the courts lack the standards to hear or manage and resolve the case; or
o it is impossible to decide the case without first making a decision regarding public policy; or
o the court cannot resolve the case without providing the respect due to the other branches of government; or
o resolving the case requires the court to question a current policy decision; or
o resolving the case could potentiality cause embarrassment due to multiple differing decisions by multiple branches on the same question.


There is overlap in the three branches, e.g. the President participates in law creation with his veto power, and Congress participates in treaty approval. Disputes in the overlap, gray, areas are resolved by the branch with the greatest political strength or by judicial interpretations of the law.

Liberty depends on the government acting according to the law. The United States government is not of men: it is of laws. People submit to men only when the men act under the law. This includes all three branches of government and their members. The people depend on aggressive enforcement of the separation of powers to ensure their liberty.

Contact us at solutions@boaldinlaw.com with any comments or questions about this Note.

[1] Justice Kennedy concurring in Clinton v. New York, 524 U.S. 417 (1998) (Discussing the constitutionality of the Line Item Veto Act).

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