Separation of Powers Part 1

Constitutional division of powers among the legislative, executive, and judicial branches, with the legislative branch making law, the executive applying and enforcing the law, and the judiciary interpreting the law.

A violation of separation of powers in which branches of government encroach on certain duties of others. Examples include the President's power to reject laws proposed by Congress or the Court's power to declare laws unconstitutional. Together with separation of powers, checks and balances makes it more efficient even though it undermines it.

The purpose of separation of powers is to divide the government into 3 different branches, each with different roles and powers. This system protects the people, prevents government abuse and tyranny, though because of this it is slow and inefficient by its nature.

The Court determines whether whatever allegedly violated separation of powers presented an actual functional threat to the notion of separation of powers by actually and meaningfully shifting the balance of powers to another branch. This involves taking one branch's marbles away.

The Constitution creates a set form of procedures in the law-making process, and any deviation from that form must be unconstitutional. For example, the Constitution requires that laws are passed by both chambers of Congress, and not following that process violates separation of powers.

Analogy of constitutionally granted powers as bags of 100 marbles that are given to each of the three branches. There are Separation of Powers problems when one of the branches loses one of its marbles or gains marbles it's not supposed to have.

1. Seeking to Use a Power Owned by Another Branch

2. Seeking to Undermine a Power Owned by Another Branch

3. Seeking to Give Away Part of its Power to Another Branch

4. Seeking to Give its Own or Another Branch's Power to Some Other Entity

One branch gives its power to someone or something that is not another branch of government. This separation of powers violation is less dangerous because one branch's bag of marbles goes to 99, but that's it.

One branch takes or gives away a power to another branch that it's not supposed to have. This is more dangerous because one branch's bag of 100 marbles goes to 99 while the other's goes from 100 to 101.

For domestic affairs, the President exercises only powers given to him by the Constitution or by Congress.

For foreign affairs, the President's powers are arguably broader.

The President may exercise only those powers granted to him expressly or implicitly by Congress (i.e. a statute) or by the Constitution with regard to domestic affairs.

1) When Congress has expressly or impliedly given him permission to do something, the President's power is greatest, and he can do what Congress has delegated to him as well as his own constitutional powers

2) When Congress is silent, there is a zone of twilight regarding what the President can do, which is greater in the area of foreign affairs, but usually depends on past practice of Presidents and Congress

3) When Congress' desire conflicts with the President's, he can only rely on his exclusive Constitutional powers.

Truman attempted to direct the Secretary of Commerce to seize certain steel mills during the Korean War to make sure they continued operating when workers were on strike because he believed it necessary to the war effort. The President argued he could do this through an aggregation of his Commander in Chief, executive power, and power to execute the laws faithfully, but the Court held that no constitutional power or statute by Congress has authorized him to take this action. The President cannot make the law, and he does not enjoy the same implied power that Congress does.

Jackson's concurrence is more well-known than the opinion because Justice Jackson came up with the 3 categories of presidential power: 1) when Congress has approved the President's action, 2) when Congress is silent on the matter, or 3) when Congress disapproves.

Here, the President's actions fell in category 3.

The President may be able to exercise emergency powers during a crisis when waiting for Congressional approval would be futile, but he should give Congress notification and ask for forgiveness/approval as a first resort, or at least shortly after the action.

The President has broader power in the area of foreign affairs because the Constitution gives the President the power to conduct foreign relations and his power also comes from the U.S. as a sovereign, rather than the Constitution alone. He also has the power to receive ambassadors, make/withdraw from treaties, and act as the "sole organ" of the U.S. in the area of foreign affairs.

After the Iranian hostage crisis, President Carter issued an executive order freezing Iranian assets in the U.S and established an international claims tribunal to settle the claims regarding the freezing of those assets.

The Court held that the President had the authority to do this through an executive agreement by relying on the National Emergencies Act and the International Emergencies Economic Powers Act even when a statute did not specifically give him the power and the action conflicted with state law.

However, the President only has this power to settle these claims where Congress acquiesces. The President does not have plenary power to settle all claims. This action fell within category 2 where Congress' intent was unclear, but past practice and a higher degree of foreign affairs powers allowed the President to take this action.

The President has the specific power under the Constitution to conclude international agreements with the advice and consent of the Senate.

However, he also has some power to conclude executive agreements without the Senate's ratification under his broad foreign affairs power.

An agreement negotiated with a foreign nation by the President without ratification by the Senate.