Separation of Powers Outlines

Separation of Powers I – Legislative Power

Q:     What is the supreme power in the United States?

I.     Separation of civil powers

    A.     The law of the nature of separation of powers.
      1.     Civil government is comprised of three kinds of power, as defined by the law of nature.
        a.     Corollary to the principle of Delegation: human authority is diffuse and disparate.
        b.     Three kinds of power recognized by God. Is 33:22.
        c.     Illustrated in prosecution & judgment of Cain. [Gen 4.]
        God was lawmaker, prosecutor, judge and executioner. Q: Why wasn’t this tyrannical?
      2.     The Example of Israel Pre-Saul.
        a.     God was king of Israel.
        b.     Judges exercised all three types of civil power.
          1)     Legislative power under the judges.
            A)     Moses bore the law to the people. [Ex. 20; 31:8.]
            B)     Judges after Moses exercised little or no legislative power.
            C)     Legislative ratification of the Gibeonite treaty?
              – Analogy to U.S. Constitution. Art II Sec 2 C1 2.
              – Ratification made the treaty “law.” Joshua 9:15
          2)     Executive power under the judges. [Ex. 17:8-13.]
          3)     Judicial power under the judges. [Ex. 18:13-16.]
        c.     The decline of the lawful use of power.
          1)     The legacy of Joshua. Judges 2:7
          2)     The legacy lost. Judges 2:10-11, 21:25.
          3)     Israel asked for a tyrannical king (i.e., one who exercised all three types of civil power).
      3.     The Example of Israel Post-Saul.
        a.     Samuel retained judicial power. [1 Sam 7:15.]
        b.     King exercised executive power. [1 Sam 11 & 15.]
        c.     No legislative power vested in the king. God retained legislative power, insofar as it related to lawmaking.
    B.     The historical understanding: Separation of powers is a matter of law, not expediency.
      1.     The testimony of the Common Law of England.
        a.     Bracton: “there is no king where will and not law wields dominion.”
        b.     Executive power is governed by law of nature. Coke v. James I.
        c.     The legacy of the Court of the Star Chamber.
          – Broad and undefined legislative, executive and judicial powers => “prerogative” government => tyranny.
      2.     The testimony of colonial and state experience.
        a.     Declaration of Independence: grievances against George III.
        b.     Affirmation in state constitutions.
          1)     Independence of the judiciary: Const of Virginia, Sec. 5.
          2)     Constitution of Massachusetts, Art. XXX.
        c.     Argued in Federalist Papers #47-51.
      3.     The constitutional structure is a matter of law, not politics.
        a.     The structure of the Constitution embodies a separation of powers which must be defined by the law of nature.
        Q:     What makes the law of nature legally binding on the Constitution?
        b.     Cross-over between powers in the Constitution (“checks & balances”).
          1)     Executive veto of legislation.
          2)     Senatorial approval of treaties.
          3)     Congressional authority over Court jurisdiction.
        c.     The duty of each branch of government to interpret the Constitution.
          1)     Madison – Roads and canals.
          2)     Lincoln – Refusal to follow Dred Scott.
          3)     Jackson – Veto of extending bank charter.
    C.     The modern view.
      1.     Strauss: The Place of Agencies in Government: Separation of Powers and the Fourth Branch
      2.     Analysis based on law (requirement) or politics (discretion, expediency)?

Q:     Where does the Constitution define “legislative power”?

II.     Article I – Legislative power

    A.     The nature of law. Law is a rule of action which is prescribed by some superior and which the inferior is bound to obey. Blackstone.
      1.     Prescribed by some superior.
        a.     Created.
        b.     Mandatory.
        c.     Objective.
      2.     A Rule of Action.
        a.     Permanent.
        b.     Uniform.
        c.     Universal.
      3.     What law is not.
        a.     Not an order.
          1)     Court opinions.
          2)     Executive orders.
        b.     Not advice or counsel.
        c.     Not an agreement.
    B.     The nature of legislative power. A legislator bears the law to the people within the established legal framework.
      1.     The purpose of legislation is to help conform man’s behavior to God’s law.
        a.     Man’s law must be patterned after God’s law.
          – Man’s law must be permanent, uniform and universal.
        b.     Purpose of man’s law is to implement God’s law among men.
          1)     God’s law is for the unrighteous. 1 Tim 1:9; Rom 3:9-23
          2)     God’s law is for every nation.
        c.     Man has the capacity to legislate after God’s pattern.
        d.     Man has liberty to choose the means to implement the immutable purposes of the fixed legal order.
      2.     Legislative power is subservient to the law of nature.
        a.     Legislative power is constrained by the law of nature.
        b.     Legislative enactments must conform to the nature of law.
        c.     Coke, Blackstone and others.
      3.     Legislation must be in the nature of a “rule.”
        a.     Law must proclaim a rule of conduct prohibiting what is wrong or commanding what is right.
        b.     Ex post facto laws
        The state or federal government may not pass ex post facto laws (i.e., laws that retroactively alter criminal offenses or punishments). Specifically, laws creating a new crime, increasing punishment, or reducing required evidence are not valid after the fact, but procedural changes not affecting substantive elements are not ex post facto.
        c.     Bills of attainder
        Bills of attainder are legislative acts that inflict punishment on individuals without a judicial trial. Both federal and state governments are prohibited from passing bills of attainder. Whereas a legislative rule must have general applicability.
    C.     Legislation which is not law.
      1.     A case study: Federal Communications Act and the F.C.C.
        a.     The statutory standard: “Public interest, convenience, or necessity.”
          – NBC claims FCC has exceeded regulatory powers.
          – S.Ct: Congress needs only an “intelligible principle.”
        b.     Has Congress passed a law?
          – Does FCC execute an existing rule, or promulgate its own rules?
          – How a bill becomes law: bicameral principle; presentment principle.
          – FCC regulations do not conform to constitutional lawmaking authority.
        c.     A delegation of indefinite powers to accomplish an indefinite end.
          1)     Policy is not a “rule,” but like a frame of government in a kingdom.
          2)     Policy is not a “law,” i.e., fixed, uniform and universal.
          3)     Justification for FCC Act is based on politics, not law.
      2.     Modern view: Legislative power may generally be delegated to the executive or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress (e.g., powers to declare war, impeach).

III.     Cases.

    A.     Kleppe v. New Mexico. S.Ct. upheld federal Wild Free-Roaming Horses and Burros Act, reversing the district court.
      1.     Act based on the Property Clause of art. IV, 3, cl. 2.
        – w/in the scope of the Necessary & Proper Clause (art. I, 8, cl. 18).
      2.     Court relies on “complete power” of Congress.
        – Employing a subject matter jurisdiction analysis – any rule is OK which merely “respects” federal property.
        – Rejecting a purpose analysis proferred by appellee (N.M.).
    B.     Immigration & Naturalization Service v. Chadha. S.Ct affirmed holding that an act granting the House of Representatives power to veto (by mere resolution) an executive decision not to deport a given individual is unconstitutional.
      1.     Majority (Burger):
        a.     House action, by resolution, was not a proper art. I legislative act.
          1)     Legis. veto was not w/in an exception allowing one house to act alone.
          2)     Legis. veto was an act of legislation.
          3)     Legis. veto was subject to art. I standards.
        b.     The structure of the constitution exemplifies separation of powers.
          1)     Importance of concurrence by Senate – Bicameralism.
          2)     Importance of concurrence by President – Presentment.
          3)     First legis. veto was enacted in 1932 (FDR’s New Deal) – what does that tell us?
        c.     Severability question was answered by the terms of the statute.
      2.     Concurrence (Powell):
        a.     Legislative veto is an exercise of judicial power.
        b.     Q: Would a “bill of attainder” be more accurate? Why or why not?
          – See, art. I, §9, cl. 3.
      3.     Dissent (White):
        a.     Legislative veto is “an indispensable political invention.”
        b.     Delegation of legislative power to executive branch, independent agencies and private groups is OK.
        c.     Not all legislation must be passed “as a law.”
        d.     Agency rulemaking is “lawmaking” – and there’s nothing wrong with that.