[Paleopsych] NULR: The Rehnquist Court: The Revolution That Wasn't
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SYMPOSIUM: THE REHNQUIST COURT: THE REVOLUTION THAT WASN'T
Northwestern University Law Review
[Calabresi's reply follows.]
NAME: M. Elizabeth Magill*
BIO: * Professor of Law, John V. Ray Research Professor, University of Virginia
School of Law. Thanks to Lillian BeVier, Eric Claeys, John Harrison, John
Jeffries, Mike Klarman, Daryl Levinson, Dick Merrill, Jennifer Mnookin, Jim
Ryan, John Setear, Larry Walker, and participants in the summer faculty
workshop series at University of Virginia School of Law School for helpful
comments and conversation. Emil Barth, Jeremy Byrum and Anne Ralph provided
excellent research assistance. The title of this article echoes the book on the
Burger Court edited by Vince Blasi, The Burger Court: The Counter-Revolution
that Wasn 't (1983). This paper was prepared for an April 2004 conference on
the Rehnquist Court held at Northwestern University School of Law. I thank the
participants in that conference for their comments, and I am especially
grateful to Professor Steve Calabresi for his thoughtful and useful commentary
on my paper.
... A principal legacy of the Rehnquist Court is its revitalization of
doctrines associated with federalism. ... In contrast to the Rehnquist Court's
federalism decisions, these cases had no notable impact on separation of powers
law. ... The Court has evaluated statutes that prevent the President from
firing an officer based on policy difference (Humphrey's Executor, Morrison),
that condition the President's removal on the Senate's consent (Myers), that
involve Congress or the judiciary in the appointment or removal of the officer
(Morrison, Mistretta, Buckley v. Valeo, Bowsher v. Synar ), and that appoint a
judge or a Member of Congress to exercise governmental authority (Mistretta,
Metropolitan Washington Airports Authority v. Citizens for Abatement of
Aircraft Noise, Inc. ... Mistretta involved a creative appointment arrangement
of another sort. ... Put the two together - protection of the judicial power
and the integrity of the judiciary, and evaluation of appointment or removal
arrangements that involve the Appointments Clause - and there is a large body
of separation of powers law. ... If the Court rejects one claim (advice and
consent to removal is not implied by advice and consent to appointment) it may
at the same time be embracing another (advice and consent to removal interferes
with the exercise of executive power). ...
A principal legacy of the Rehnquist Court is its revitalization of doctrines
associated with federalism. That jurisprudence has many critics and many
defenders. They disagree about how to describe what has happened, the
importance of what has happened, and the wisdom of what has happened. But they
all agree that something has happened. There has been genuine innovation in
this area of constitutional law.
Not so with separation of powers doctrine. Commentators do not perceive
important shifts in the doctrine. Nor should they - the reasoning and results
in the Rehnquist Court cases are of a piece with what came before. Lack of
"revolution" (using the term loosely) was not for lack of opportunity. The
Supreme Court had many opportunities to revise its doctrines. And, from the
perspective that the Court has invoked in explaining many of its federalism
cases, there is much - very much, in fact - that is not right about the
structure of the federal government and the constitutional rules that permit
This paper asks why there has been no "revolution" in separation of powers
jurisprudence during the Rehnquist Court. Many would expect doctrinal
developments in federalism and separation of powers to track one another.
Investigating why they have not done so reveals, in fact, that the internal and
external factors that influence the developments in the two areas are quite
II. Reading the Rehnquist Court
A. A Federalism Revolution
The Rehnquist Court has worked important changes in the doctrines relating to
federalism. For the first time since the post-New Deal period, the Court has
invalidated some acts of Congress as beyond the scope of the commerce power,
making clear in the process that there are some judicially enforceable outer
limits on the scope of that power. n1 It has also invalidated some acts of
Congress on Tenth n2 and Eleventh Amendment n3 grounds. And it has held invalid
some exercises of Congress's power under Section 5 of the Fourteenth Amendment.
n4 While their long-range effects are not entirely clear, taken together the
Court's rulings plainly restrict the scope of federal power.
B. Separation of Powers
The Rehnquist Court had a steady stream of separation of powers cases, n5 and
it becomes a flood if one includes Article III standing cases. n6 Several of
the cases were high-profile and politically salient. The Court validated the
Independent Counsel Act n7 and the creation of the U.S. Sentencing Commission;
n8 it invalidated the line-item veto n9 and rebuffed President Clinton's
executive-power based claim that he was entitled to a stay in [*49] a civil
suit arising out of actions he took before he was President. n10 There were
low-profile cases as well, some of them consequential. The Court invalidated a
statute extending the statute of limitations for securities fraud cases; n11 it
rejected a challenge to a statute on Origination Clause grounds; n12 it
sustained delegations of authority from Congress to the executive n13 and the
judiciary; n14 and it evaluated several Appointments Clause cases. n15
In contrast to the Rehnquist Court's federalism decisions, these cases had
no notable impact on separation of powers law. This claim is difficult to
prove. For instance, perhaps some years hence the line-item veto case will be
the centerpiece of an invigorated separation of powers jurisprudence. Oddly
enough, that invigorated doctrine could go in two different directions. If the
dissenters' views of what was at stake in the case-namely, that the case was
about the permissible scope of delegations to the executive n16 - the
invalidation of the veto could conceivably later be read to restrict the sort
of authority Congress can delegate to the executive. Or the case might be read
as a pro-legislative power opinion in the sense that the functional complaint
about the veto was that it diminished legislative power relative to the
President. The President's power was enhanced, so went the argument, because
the line-item veto undermined Congress's ability to get what it wanted by
bundling proposals together and forcing the President to an all-or-nothing
choice on a Congressionally-designed package. n17 On that reading, the
invalidation of the line-item veto could portend other Congress-friendly
These speculative predictions notwithstanding, most commentators do not
perceive dramatic changes in separation-of-powers jurisprudence. As for the
black-letter doctrine itself, only one case (Morrison v. Olson, discussed [*50]
shortly) self-consciously adjusted the existing doctrine in the way that is
evident in some federalism cases. There are not signals of a quiet revolution.
The court decided several delegation cases, applying the "intelligible
principle " test and upholding all of the delegations. n18 It evaluated several
appointments arrangements, largely applying the pre-existing framework. n19
Mistretta, n20 the Line-Item Veto Case, n21 and Clinton v. Jones n22 all
applied already established frameworks. The court can subtly change the
framework by applying it in a new way, but the outcomes in those three cases
are unremarkable. In Mistretta, the Court clearly perceived the question as
difficult. But, in light of the legitimacy of independent agencies (both the
work they do under the understanding of the non-delegation doctrine and that
their "independence" is constitutional), that result is far from shocking. The
Court invalidated the narrowly drawn line-item veto but, in [*51] doing so, the
Court applied the standard tools of analysis. Justice Stevens' opinion for the
Court, in fact, reads much like Chief Justice Burger's opinion in Chadha.
According to these two majorities, the legislative and the line-item veto ran
afoul of the bicameralism and presentment requirements of the Constitution. n23
Whether either "veto" violated the relevant Constitutional rules was open to
question, n24 but the similar decision-making method in the two cases is the
point here. Finally, Clinton v. Jones, for all its political salience, was a
routine application of principles developed in earlier cases. n25
Morrison is the only case that could not be described as ho-hum. That case
explicitly adjusted the rules about permissible removal arrangements that were
set forth in Myers v. United States n26 and Humphrey's Executor v. United
States. n27 Myers held that Congress could not require that a postmaster's
removal by the President be contingent on the advice and consent of the Senate.
n28 Although a dispute about a postmaster's removal might seem obscure, the
holding was consequential because it meant the judicially imposed demise of the
Tenure in Office Act. The Tenure in Office Act, of course, was an 1867 statute
dictating that an officer appointed with Senate consent held office until the
Senate approved the officer's successor. n29 President Johnson was impeached in
1868, but not convicted, for discharging the Secretary of War in violation of
the statute. n30 It was not until Myers in 1926 that the Court decided the
constitutionality of such an act. The Myers Court's vindication of Presidential
removal authority, however, was short lived. The holding was importantly
limited just nine years later, in 1935's Humphrey's Executor. There, the Court
held that Congress could, by providing commissioners of the Federal Trade
Commission a form of tenure, limit the President's ability to fire such a
Commissioner based on policy differences. n31 The Court in Humphrey's Executor
distinguished [*52] Myers as involving a "purely executive" officer. Until
Morrison, then, the constitutional line between Myers and Humphrey's was the
difference between "purely executive" officers (that the President had the
power to remove without any interference from Congress) and quasi-legislative
and quasi-judicial officers (where Congress could limit the President's removal
authority by providing tenure protection). n32
After Morrison, Congress's ability to limit the President's power of removal
no longer turns on whether the officer is exercising "purely executive"
authority. n33 After Morrison, the question is whether the tenure protection
interferes with the President's ability to perform his executive functions,
including his duty to "take care that the laws be faithfully executed." n34
This is an important change in the doctrine, and the result in the case - the
idea that there can be an "independent" prosecutor in the executive branch -
makes one sit up and take notice.
But Morrison does not a revolution in separation-of-powers doctrine make.
The doctrinal adjustment was already implicit in the arrangements sanctioned by
Humphrey's Executor. Independent agencies like the Federal Trade Commission, in
addition to their "quasi" legislative and judicial functions, also perform some
"purely executive" functions. To the extent that for-cause limitations could be
imposed on officials that performed any executive functions, even if they did
not perform solely executive functions, the Myers line was not fully respected.
Morrison admitted what had been true in practice.
Morrison also respected another part of the pre-existing Myers/Humphrey's
Executor framework. In addition to distinguishing between purely executive and
non-purely executive officers, that framework distinguished between direct
(Myers tenure-in-office act type arrangements where the Senate had to consent
to the removal) and indirect (Humphrey's Executor for-cause tenure protection)
congressional involvement with removal. The independent counsel's tenure was
protected by the indirect method and in that sense it is not surprising that
the Court viewed it as permissible. Finally, to focus directly on the
comparison between two areas of law that is the question of this paper, to the
extent that Morrison does represent important evolution in the doctrine, it is
away from, not toward, the evolution evident in the federalism cases. The
federalism cases are often defended as movement in the direction of a
historically sanctioned allocation of authority between the federal and state
governments. But Morrison moves away from, rather than toward, such historical
Perhaps this relative stasis in separation of powers law can be easily
explained. One might argue that federalism doctrines, until the Court adjusted
them, were inconsistent with a proper understanding of the constitution [*53]
(however one defines "proper") while separation of powers jurisprudence closely
tracked such understandings. But this is not satisfying. The federalism cases
are often defended as bringing the law into line with historically-sanctioned
understandings of the appropriate constitutional balance between the state and
federal governments. A similar case for reform of the law can be made in the
separation of powers area. Consider administrative and independent agencies,
perhaps the most obvious arrangements that are in tension with both textual and
historical constitutional commitments. Delegations of authority to these
entities outstrip any that early Congresses, much less Framers of the
Constitution, could possibly have imagined. Those agencies not only issue
general rules resolving questions that one might think should be addressed by
statutes (trade-offs between health benefit and cost, for instance), but they
are permitted to adjudicate individual controversies. The actions these
agencies perform are constitutionally permissible under the nondelegation
doctrine and the doctrines that permit Article I courts. Officers that direct
independent agencies can also be insulated from the President in various ways.
These present-day institutional arrangements are, at a minimum, in tension with
the text and the historical understanding of the provisions of the constitution
that touch on separation of powers. There are other examples as well.
Congress's now routine approval of omnibus bills diminishes the power of the
President's veto. n35 The scope and breadth of Presidential lawmaking, through
Executive Orders primarily, has grown dramatically over time. n36 There is thus
no [*54] shortage of examples of institutional arrangements and practices that
are hard to square with the text and the historical understanding of the
constitution. The Court's failure to revise separation of powers law, in other
words, cannot be explained as a product of correspondence between a proper
understanding of the constitution (as that is understood in the federalism
cases) and the Court's separation of powers jurisprudence. n37
In fact, in reviewing the Rehnquist Court's separation of powers cases, one
is struck by just how tame they are. In a period where the Court seems willing
to upset some old assumptions about the allocation of authority between the
federal and state governments, the Court shrinks from any interpretation that
would work a serious change in either the doctrine or in the structure of the
federal government. The only two outliers are Justice Thomas and Justice
Scalia. Justice Thomas, writing for himself, has asked whether the test that
has long served as the touchstone of the non-delegation doctrine - which asks
whether Congress has provided an "intelligible principle" to guide the exercise
of discretion - serves to prevent "cessions of legislative power." n38 "I
believe," he wrote, "that there are cases in which the principle is
intelligible and yet the significance of the delegated decision is simply too
great for the decision to be called anything other than "legislative.'" n39
Justice Thomas's doubts are a notable development, but it is equally notable
that he is alone. Justice Scalia has also played the lone wolf. He dissented by
himself in the cases validating the Independent Counsel Act n40 and the U.S.
Sentencing Commission. n41 He has also expressed qualified support for notions
of a unitary executive, arguments that have attracted few adherents. n42
[*55] Lack of innovation in separation of powers law was also not for lack
of opportunity. The Court had cases that it could have used as opportunities to
revise the law along any of the possible dimensions - the relationship between
the legislature and the executive, between the legislature and the courts, and
between the executive and the courts. There were a number of non-delegation
doctrine cases that presented opportunities to re-think that doctrine n43 and
several cases evaluating appointment and removal arrangements for officers that
could have permitted the Court to re-think its stance there as well. n44
III. Why No Revolution?
One might have thought that developments in separation of powers doctrine
would mimic developments in federalism law. If the evolution evident in
federalism doctrines is a result of evolving methods of interpretation - the
rise of more historically n45 or textually n46 minded constitutional
interpretation, for instance - wouldn't that also suggest changes in separation
of powers law? Some have explained federalism developments as part of the
Court's new-found confidence, even arrogance, in its exercise of judicial
review, a confidence that makes it more willing to invalidate the acts of the
legislature without angst about the counter-majoritarian nature of its
decisions. n47 But, if jurisprudential trends are changing or if the Court is
newly bold, such developments should affect other areas of law. In particular,
they should have implications for separation of powers doctrine. Federalism and
separation of powers provisions of the constitution are both "structural," that
is, they channel authority to government decisionmakers rather [*56] than place
substantive limits on the actions of any and all government decisionmaking.
Just as some have argued that the balance between federal and state power
should be resolved by politics, n48 so too have some argued that the division
of authority among the three branches of the national government should be left
to politics. n49 At least as a starting point, then, federalism and separation
of powers doctrines can both be considered apples. Why don't they ripen and
fall off the tree together?
This Part stakes out answers to that question. It identifies both internal
and external influences on separation of powers doctrine, suggesting that,
while there may be important analogies between the two areas of law, it is the
dis-anologies that help explain the distinctive patterns in the Rehnquist
* * * The first two arguments suggest that the Court is unlikely to forsake
judicial enforcement of many of the separation of powers provisions of the
Constitution. These arguments identify judicial incentives to protect the
exercise of judicial power that are in play in some separation of powers
controversies and factors that make certain separation of powers questions
eminently justiciable. These factors help explain why the Court is likely to be
continuously in the separation of powers business, and by that I mean relying
on doctrines that will sometimes result in the invalidation of the actions of
other governmental actors. As a result, the Court is unlikely to announce, as
in Garcia v. San Antonio Metropolitan Transit Authority, n50 the explicit
nonjusticiability of certain separation of powers questions or, as in the
combined effect of Wickard v. Filburn n51 and United States v. Darby, n52 to
implicitly state that anything goes. Given the factors identified below, in
other words, parts of separation of powers law will be more static across time
than federalism doctrines.
A. Judicial Incentives and the Protection of the Independent Judiciary
The most straightforward reason we are unlikely to see a full retreat from the
enforcement of separation of powers provisions of the Constitution is the
unique interest that the Court has in this field. To put the point simply: When
the Court perceives a threat to the exercise of federal judicial power, it will
act to protect the exercise of that authority. Fulfillment of [*57] that
function alone would count as a separation of powers jurisprudence. More
speculatively, I suggest that the Court's instinct to protect its own interests
may make it more willing to seriously entertain other separation of powers
If the Court perceives the exercise of judicial power to be threatened or
the judiciary compromised, the Court will act to protect itself. There are many
cases historically that provide evidence for that proposition, and there are a
striking number of cases in the Rehnquist Court that provide evidence for it as
well. The most straightforward is Plaut v. Spendthrift Farm, Inc., n53 where
the Court held that Congress's extension of the statute-of-limitations for a
class of securities fraud claims constituted an invasion of the judicial power
because it required the re-opening of final judgments. n54 Sometimes threats to
the judiciary do not come from statutes. In Young v. United States ex rel.
Vuitton et Fils, S.A., n55 the Court held that a federal court can appoint,
subject to some limitations, a private prosecutor in order to prosecute a
criminal contempt. Such authority, the Court reasoned, prevented court
dependency on the cooperation of the executive for the investigation and
prosecution of criminal contempts. n56
Protection of the interests of the judiciary also pops up in all sorts of
not-so-on-point situations. The Court's reading of Section 5 of the Fourteenth
Amendment in City of Boerne v. Flores bristles with indignation over Congress's
perceived attempt to challenge what the Court views to be its superiority in
the interpretation of the Constitution. n57 As a matter of [*58] statutory
interpretation, the Court held that the Federal Election Commission cannot seek
certiorari in the Supreme Court without the Solicitor General's advance
permission. n58 The Court held the same with respect to the private prosecutor
that it authorized District Courts to appoint in Young; in that case, the
holding went against the views of the Solicitor General himself. n59 These
rulings are easily explicable; they serve the interest of the Court by making
sure it hears a single, familiar, and credible voice. Finally, one last example
comes from the Court's invalidation of statutory restrictions on the types of
claims that Legal Services Corporation-funded lawyers can bring. There, the
Court reasoned that the restrictions were invalid in part because they might
limit the arguments that lawyers could make to a court. n60 If one is looking
for judicial attention to the interests of the courts, one finds it in all
sorts of places.
To understand some Rehnquist Court cases from this "court protection"
perspective is a little more complicated. The Court's Article III standing
cases, Lujan v. National Wildlife Federation, n61 for instance - can be
understood to be about the protection of the judiciary's interests. In Lujan,
the Court is declining to hear a category of cases, which might be considered
contrary to its interest in maximizing its power. But that is a naive
interpretation. n62 One must notice that the Court is deciding not to hear
cases that Congress, through broad citizen suit provisions, would like federal
courts to hear. One explanation for the standing cases is that the Court will
not hear cases that undermine what the Court views to be its appropriate role.
That is about protecting the judiciary even if, narrowly understood, it is
about not hearing a particular case.
Sustaining the U.S. Sentencing Commission is likewise hard to understand
from a "protection of the judiciary" perspective. The claims against that
Commission were that Congress delegated legislative power inappropriately (a
claim the Court easily dismissed) and, more particularly, that Congress could
not assign this particular task to an entity in the judicial branch because it
was not the exercise of a judicial power and the assignment threatened the
independence of the judiciary. How could sustaining such an arrangement protect
both general judicial interests and the specific exercise of the judicial
One can plausibly understand Mistretta as protecting judicial interests by
focusing on the internal hierarchy of the courts. A more objective sentencing
[*59] system is something that district court judges might resist, but not
necessarily something that appellate courts would resist. Objectivity in
sentencing makes review of sentencing decisions easier. If one thinks of
appellate courts as managers, the Sentencing Commission is a manager's dream.
All the better that it is housed in the judiciary and run in part by judges. As
for the Supreme Court's evaluation of the structure and location of the
Commission, the Court was concerned about the potential for the Commission to
threaten the independence or the integrity of the judicial branch. It was
simply not persuaded that the Commission presented such a threat.
Whether an outside observer can understand the standing cases, Mistretta or
Morrison, as consistent with the protection of judicial power or of the
judiciary as an institution is distinct from whether the judiciary perceives
itself to be protecting itself. It is not easy to construct a positive theory
of what counts as a threat to the judiciary and what does not. To take some of
the puzzling cases of the Rehnquist Court, the Court viewed the statute at
issue in Plaut v. Spendthrift Farm, Inc. n63 to invade the judicial power while
the statute at issue in Miller v. French n64 did not. Nor did the Court view
the courts' role in the appointment of the Independent Counsel, or the
structure and location of the Sentencing Commission, to be a threat. These
conclusions are puzzling to many. But it matters little whether we would
endorse the Court's implicit vision of what qualifies as an invasion of the
judicial power or a threat to the independence of the judiciary. That question
is distinct from the more basic point here: When the Court perceives such a
threat, it will rebuff it.
It matters for separation of powers law that the Court will reliably protect
what it perceives to be its interests. In the first place, as long as the Court
is willing to police the boundary between judicial power and legislative or
executive power and ask whether some assignment threatens the independence or
integrity of the judicial branch of government, then, voila, that is a
separation of powers jurisprudence. If the Court will always reliably protect
itself, in other words, there will never be a Garcia in certain parts of
separation of powers law.
Such court protection may have broader implications as well. When the Court
is policing the boundaries of judicial power and protecting the integrity of
the judicial branch, it is also more likely to be in the separation of powers
business generally speaking. That is, it will be more willing to consider, and
even protect, what it considers to be the interests of the other institutions
of the federal government. This claim seems plausible, though it cannot be
proven. If the Court is protecting its own authority (Plaut is an example) and
carefully inspecting arrangements to make sure its integrity and independence
are not undermined (Morrison, Mistretta), then it would be a little odd for the
Court to explicitly state or implicitly suggest that the [*60] boundaries of
the powers of other branches and the integrity of those branches are beyond
judicial ken. If this is right, the Court will hear the claim that the
line-item veto diminishes the authority of Congress; it will hear and take
seriously the claim that the Independent Counsel threatens to undermine the
executive by weakening the President's control over the exercise of executive
By comparison, there is no equivalent judicial interest in federalism
doctrines. At one time, perhaps there was. If the authority of the federal
courts were linked to the authority of the federal government more generally,
then federal courts interested in protecting their own stature and authority
would have an interest in expansive interpretations of federal legislative or
executive power. n65 But that connection seems to have been attenuated today.
The Court's conclusion in United States v. Lopez, for instance, that the
Gun-Free School Zones Act exceeds Congress's commerce power n66 does mean that
there will not be federal question cases arising under that statute in federal
courts. But this enforcement of the commerce power does not seem to imply any
limitation on the important prerogatives of federal courts, such as the scope
of judicial review, or the deference the Court owes to state and federal
B. The Eminent Justiciability of Certain Separation of Powers Questions
1. Appointment and Removal Arrangements. - Separation of powers doctrine has
long been populated with a large share of cases that evaluate how officials
exercising governmental power are appointed or removed. The Court has evaluated
statutes that prevent the President from firing an officer based on policy
difference (Humphrey's Executor, Morrison), that condition the President's
removal on the Senate's consent (Myers), that involve Congress or the judiciary
in the appointment or removal of the officer (Morrison, Mistretta, Buckley v.
Valeo, n67 Bowsher v. Synar n68), and that appoint a judge or a Member of
Congress to exercise governmental authority (Mistretta, Metropolitan Washington
Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc. n69). Over
the years, there have been many [*61] such arrangements and the Supreme Court
has been willing to evaluate their constitutionality.
Is this obsession with appointment and removal evidence of lawyers' capacity
for paying attention to the trees and not the forest? As a result of the
toothless nondelegation doctrine, the Court does not police what many
government officials are authorized to do, but is for some reason intensely
interested in the mechanics of their appointment and removal. As I argue below,
this criticism is off the mark; these cases should instead be understood as
evaluating part of the forest. But the point for present purposes is that the
existence of such arrangements and the Court's willingness to develop a body of
doctrine that evaluates them helps explain why important parts of separation of
powers doctrine have not gone through periods, as federalism doctrines have, of
explicit or implicit nonjusticiability.
A striking number of the Supreme Court's separation of powers cases have
always been about the appointment or removal of various officers. It surprises
many to find out that Humphrey's Executor, a pillar of the law making
independent agencies constitutional, turns on whether the appointment
arrangements-and, specifically, the restrictions on the President's authority
to remove such officers - for such officers are constitutional. Under
Humphrey's Executor, Congress can insulate officers who perform quasi-judicial
and quasi-legislative functions from the President by providing them a form of
tenure. n70 While less clear, Congress can also apparently limit the
President's appointment power by specifying bipartisanship (half from each
party) on multi-member commissions n71 or requiring the President to choose
from a limited list of appointees (Mistretta). But more direct Congressional
control over the officer, through actual appointment (Buckley), removal
(Bowsher), or consent to the removal by the President (Myers), it is clear,
does not comport with the Constitution. n72
This pattern of appointment and removal cases continued in the Rehnquist
Court. The crucial first holding in Morrison is that the independent counsel is
an "inferior" officer for purposes of the Appointments Clause, meaning that his
appointment does not require the advice and consent of the Senate. n73 Several
other Rehnquist Court cases, including Freytag [*62] v. Commissioner of
Internal Revenue, n74 Weiss v. United States, n75 and Edmond v. United States,
n76 raised questions about the line between a principal and inferior officer.
Mistretta involved a creative appointment arrangement of another sort. The
statute called for the appointment of three federal judges as Commissioners of
the Sentencing Commission. n77 Likewise too with Metropolitan Washington
Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc., where
Congress created a Board of Review that included Congressmen and had veto power
over the operations of Reagan National and Dulles Airports. n78
Leave aside for now why the rules about appointment and removal are what
they are. What is most significant is that the Court has been willing (at least
in the twentieth century) to evaluate appointment and removal arrangements,
identifying constitutionally proper and improper ones. Compare this steady
judicial activity with Garcia and Wickard/Darby's announcements that the Court
will not be in the business of identifying and enforcing limitations in those
areas. What explains the steady judicial activity?
The character of the Appointments Clause as a legal rule must help explain
the Court's involvement. n79 In contrast to many sources of law in federalism
doctrine (and some in separation of powers doctrine), the Appointments Clause
sets forth a rule that invites judicial enforcement. [*63] The clause sets
forth multiple classifications: principal officers who must be appointed with
the advice and consent of the Senate; inferior officers who may be appointed by
the President alone, by a court of law, or by a head of department (depending
on the dictates of Congress); and perhaps there is an implicit distinction
between officers (either principal or inferior) and employees. In terms of
clarity, the clause is not akin to the requirement that the President be
thirty-five years old and a resident of the United States for fourteen years.
n80 Nor is it as clear as its cousin, the Incompatibility Clause. n81 Even so,
the Appointments Clause is a different kind of legal rule than the Tenth
Amendment or Section 5 of the Fourteenth Amendment. It seems designed for
courts to answer questions about it. The provision is ambiguous enough to
generate cases - the difference between a superior officer and an inferior
officer, the difference between an officer and an employee, what counts as a
head of department or court of law - but not so open-ended as to permit any
interpretation at all.
As any survey of the Court's nonjusticiability cases makes clear, it takes
more than the existence of a constitutional rule of some specificity to explain
justiciability. n82 There are provisions of the Constitution that supply rules
arguably similar in character to the Appointments Clause but are nonetheless
nonjusticiable. n83 For instance, a plurality of the Supreme Court held
nonjusticiable a challenge to President Carter's notice that he would rescind a
treaty that had been approved by two-thirds of the Senate. n84 Some of the
arguments over the President's action were strikingly similar to the dispute
over the Tenure in Office Act. n85 The challengers claimed that the Senate's
advice and consent to the treaty implied the power to advise and [*64] consent
when the President rescinded the treaty. n86 But the Court determined that the
dispute was a political question and therefore nonjusticiable. I know of no
general theory of nonjusticiability and developing one is far beyond the scope
of this paper. What can be said is that the warning signs of nonjusticiability
- evaluation of the President's actions in the foreign affairs area or
scrutinizing Congress's internal processes - are absent in disputes over the
appointment and removal of officials. The more complete explanation for the
continued adjudication of appointment and removal cases, then, is the existence
of a certain kind of legal rule (like the Appointments Clause) and the absence
the usual warning signs of a credible nonjusticiability argument.
One needs more than a rule that judges will enforce, however, to generate
cases. One needs appointments arrangements that push at the boundaries of the
rule. Congress has more than satisfied this requirement historically and
continues to do so. To be sure, the legality of Congress's arrangements does
not always turn solely on the Appointments Clause. Congress has also rested
such arrangements on the necessary and proper power. And resistance to such
arrangements has been rooted in claims about infringement of executive power or
more general concerns about separation of powers. That said, many challenged
arrangements over the years, and in the Rehnquist Court as well, have required
evaluation of the Appointments Clause.
The Tenure in Office Act - which, in effect, required the Senate's consent
before an officer could be removed from office - is the granddaddy of these
"creative" arrangements. It was approved, in part, on a theory rooted in the
Appointments Clause. That argument was that the method of removal followed the
method of appointment and thus if the Senate provided advice and consent for
appointment it was also permitted to condition removal on its advice and
consent. Many other arrangements straightforwardly test the internal workings
of the Appointments Clause or its applicability. The Independent Counsel Act is
only constitutional if the counsel is an inferior officer for purposes of the
Appointments Clause. In Freytag, a special trial judge appointed by the Chief
Judge of the tax court must be an inferior officer and the Chief Judge must be
either a Court of Law or a head of department for the arrangement to comport
with the Appointments Clause. n87 In Buckley, Congress had attempted to appoint
government [*65] officials in ways that were inconsistent with the Appointments
Clause on many grounds; n88 the Court determined that, given the functions the
Federal Election Commissioners exercised, they were officers of the United
States and therefore had to be appointed consistently with the clause. n89
Why does Congress establish these arrangements? Because rules that structure
the appointment and removal of an officer help shape the incentives of that
officer. There is probably not a one-to-one relationship here; government
officials have many other pressures and demands on them that might on any given
occasion swamp the incentive created through appointment and removal rules. But
creative appointment and removal arrangements must have some effect otherwise
Congress would not keep adopting them. Congress's interest is to arrange it so
that the official will care about Congress's views (for example, the Tenure in
Office Act, Bowsher, or Buckley) or has insulation from the President (for
example, the independent counsel, independent agencies generally, or the U.S.
Sentencing Commission). Congress, in other words, adopts these arrangements for
reasons that do implicate separation of powers concerns. These are efforts to
assert Congressional influence over the officer or to insulate the officer from
an institutional competitor, the President.
In its narrowest form, the argument here is that the Court has been ready to
evaluate arrangements that explicitly test the reach of the Appointments Clause
and that such cases matter because they implicate separation of powers
concerns. I have also offered an explanation for why that is so, one rooted in
the character of the legal rule embodied in the Appointments Clause. But, even
if my explanation for the pattern of cases is not persuasive, it is the
existence of the pattern that is important.
[*66] As with the earlier argument about the protection of judicial
prerogatives, if the Court did nothing but evaluate claims under the
Appointments Clause, that would constitute a separation of powers doctrine. Put
the two together - protection of the judicial power and the integrity of the
judiciary, and evaluation of appointment or removal arrangements that involve
the Appointments Clause - and there is a large body of separation of powers
But the argument has a broader form as well. Given the Appointments Clause
cases that the Court will evaluate, the Court will also be inclined to evaluate
a broader set of appointment and removal arrangements, including those that do
not directly involve the clause. Assume that courts will generally consider
claims brought to them that directly involve the Appointments Clause. First,
such claims will often be bound up with other claims. The defense of the Senate
consent to removal in Myers was rooted in part in the Appointments Clause and
in part in the necessary and proper power. The claims against the Act were that
removal is an executive power and that Senate consent to removal interferes
with the exercise of executive power. If the Court rejects one claim (advice
and consent to removal is not implied by advice and consent to appointment) it
may at the same time be embracing another (advice and consent to removal
interferes with the exercise of executive power).
More than that, the holding in one Appointments Clause case takes on a life
of its own, doing work in other cases where the Appointments Clause is not
involved. Myers and Humphrey's Executor illustrate the point. In Myers the
Appointments Clause was at issue, but the Court rejected the argument in favor
of the executive power argument. Within a decade, the Court in Humphrey's
Executor evaluated Congress's limitation on the President's power to remove
at-will an officer of the Federal Trade Commission. Humphrey's did not involve
the Appointments Clause. Congress's limitation was defended as an exercise of
necessary and proper power. The statute was attacked on the ground that it
interfered with the executive power, an argument that was based heavily on
Myers 's holding that the removal restriction at issue there interfered with
executive power. In that context, it seems almost inconceivable that the Court
would hold the dispute nonjusticiable. One can make a similar point about
Morrison. Evaluation of the independent counsel required the Court to interpret
the Appointments Clause, but there were other questions in the case - the
validity of an interbranch appointment, the President's removal ability - that
did not involve the Clause but that would have been awkward for the Court to
If the existence of a specific rule such as the Appointments Clause (as well
as the absence of the usual signals for nonjusticiability) helps explain the
regular appearance of cases that adjudicate appointment and removal
arrangements, then the provisions of the constitution that touch on federalism
(for the most part) provide a contrast. The Tenth Amendment and Section 5 [*67]
of the Fourteenth Amendment provide the sharpest contrast. The meaning of those
provisions is created only after judges take it upon themselves to interpret
them by whatever method. The Commerce Clause is closer to a rule, but it is
still a far cry from the Appointments Clause. Indeed, of the provisions
associated with federalism, the Commerce Clause seems closest on the
generality/specificity dimension to the allocation of legislative power to the
Congress. The fact that the nondelegation principle is essentially
nonjusticiable and that the interpretation of the commerce power meant, for at
least some decades, that Congress could reach nearly any activity, is
supportive of, not resistant to, the claims made here. Both the nondelegation
doctrine and the commerce power rest on constitutional provisions that are
open-ended enough (when compared to other legal rules of interest here) to vest
a great deal of discretion in the interpreter, which leaves space for varying
interpretations, including effective nonjusticiability. In contrast to the
Vesting Clauses or the commerce power, a rule like the Appointments Clause is
much less likely to generate a Garcia or a Wickard/Darby - a rule of explicit
or implicit nonjusticiability.
2. The Existence of Comparatively Many Rules. - This point about the
rule-like nature of the Appointments Clause can be made more globally. When
compared to the provisions of the constitution that touch on federalism
doctrine, the separation of powers provisions of the constitution are comprised
of a large number of rules. Separation of powers commentators tend to focus on
the Vesting Clauses, which are, at their outer edges anyway, allocations of
authority that can be difficult to distinguish from one another and hence
difficult for judges to enforce in a straightforward way. n90 Even so, the
Vesting Clauses tell us more about what the rules are than the Tenth Amendment
or Section 5 of the Fourteenth Amendment.
But looking beyond the Vesting Clauses, the first three articles of the
constitution are literally riddled with "appointments clause-like" rules about
how the institutions of the national government will be designed and staffed.
Because governmental actors do not often take actions that violate the literal
terms of the Constitution, these provisions do not generate a lot of cases. But
their mere existence means, I think, that the Court is unlikely to announce
that the allocation of authority between the institutions of the national
government will be left to politics.
Of the rule-like provisions of the Constitution, the ones that have
generated some cases are the rules about bicameralism and presentment. Both the
legislative veto and the line-item veto were invalidated in opinions animated
by the conviction that the political branches had attempted to make an end run
around the constitutionally-mandated procedures by which legislation is to be
made. To the Court, the legislative veto permitted the enactment of legislation
by a subset of Congress without bicameralism and [*68] presentment. n91 To the
majority in the line-item veto case, there was a similar problem. n92 If
Congress could not constitutionally give the President an actual line-item
veto-defined as the ability to single out certain provisions of a legislative
package and refuse to affix his signature to those individual provisions, while
making the rest law-then Congress could not in effect do that same thing by
providing for a time lapse and calling the veto cancellation. Neither judicial
opinion is entirely satisfactory. It is contestable to say that the rejection
of Chadha's deportation was itself a legislative act; and it is contestable to
say that the President's cancellation authority was the equivalent of a repeal.
But that misses an important feature of the two decisions: The existence, and
arguable applicability, of the specific requirements that could be mechanically
enforced was important to the disposition of those cases.
To emphasize once again, the point here is quite narrow: Given the presence
of a fair number of constitutional rules about how institutions of the national
government are to work, rules that are specific enough that their application
can be relatively straightforward, it is unlikely that we would see a Court
opinion that explicitly or in effect treated questions about the allocation of
authority among the branches of government as questions to be decided by
* * * The two explanations offered so far are in the service of the rather
modest claim that, in some areas of separation of powers law, the Supreme Court
will consistently adjudicate controversies - protecting the exercise of
judicial power and evaluating alleged violations of certain types of
constitutional rules. In these areas, the Court is unlikely to ever retreat in
the way that it has with respect to important aspects of federalism doctrine.
Though modest, this claim may be important in explaining the disjunction
between the Rehnquist Court's movement in federalism doctrine and the lack of
movement in parts of separation of powers doctrine.
But the explanations offered so far do not explain the content of that
doctrine. Yes, the Court will be involved in adjudicating Appointments Clause
cases, but why has it settled on particular rules? The next set of arguments
focus on that question.
To do so, one must first draw conclusions about the substantive content of
separation of powers doctrine. I will focus my attention on the Court's
acceptance as a constitutional matter of the administrative state. This
substantive conclusion is reflected in many different doctrinal areas. In
important respects, the Court has resisted claims that the Constitution
establishes a unitary executive. While Congress is not permitted direct
involvement in the appointment or removal of executive officials, it is
apparently permitted to limit the President's appointment powers in general
ways and is definitely [*69] permitted to insulate certain officers from
removal at will by the President. Of more significance is that Congress can
delegate significant policymaking authority to expert bodies, mostly in the
executive but also in the judiciary, and the Court will not police those
delegations to determine whether they are so loosey-goosey as to constitute a
give-away of legislative authority. Despite many arguments in favor of
revitalization of the nondelegation doctrine, and many opportunities, the Court
will not - emphatically will not - revitalize that doctrine. This Part asks why
the substantive content of these parts of separation of powers law have not
changed in a period where the Court is willing to revisit some old commitments.
C. External Influences on Federalism and Separation of Powers Doctrine
Many have written on the external changes - economic, political, demographic,
sociological, intellectual - that have made the late twentieth century a period
where devolution to the states as a matter of policy and of law is possible.
Keith Whittington has provided one of the most comprehensive accounts. n93 He
first traces the forces that pushed toward a centralized, federal state in the
earlier part of the twentieth century - the rise of an expertise model of
governing, of the positive state committed to economic regulation and
redistribution, and of commitment to regulating public morality. n94 These
centralizing forces reached their height in the 1960s, but were then overtaken
by factors that both raised doubt about the efficacy and wisdom of centralized
action and rehabilitated the states. In tracing that changing environment on
federalism questions, Whittington first argues that many factors combined to
make liberalism recede as the dominant vision, and with liberalism went the
governing ideology that "underwrote the modern state." n95 So too did economic
forces - the rise of globalism, the structure of post-industrial economic
entities - combine to diminish the efficacy of any government's control over
the economy. n96 As the federal government's stature as a moral force
diminished and the states "gradually recovered [*70] public confidence," n97
the federal government no longer acted as keeper of the public morality.
Whittington does not argue that the factors he identifies made a devolutionary
trend in policy or law inevitable. But they do make it possible in a way that
he argues would not have been possible, say, in the 1940s, 1950s, or even the
Most would agree that separation of powers doctrines can be influenced by
trends such as the ones Whittington recounts as facilitating centralization and
then making decentralization possible. It is now a fairly conventional claim
that views, including judicial views, of Presidential power tend to expand
during wartime. n98 Events of the type Whittington and others identify must
have played a role in creating the view that administrative agencies operating
under broad delegations from the Congress were constitutionally acceptable. n99
Many of the forces Whittington identifies as pushing in the direction of a
centralized state suggested that the state should wield power through a
particular form, that is, the expert bureaucracy. n100 If such forces could
play a role in constitutionally blessing the administrative agency - a position
operationalized in law through a toothless nondelegation doctrine - could not
external events create conditions that would make that governmental structure
less appealing and hence less constitutionally acceptable?
Yes, of course they could, at least theoretically. But to understand why
that has not occurred, it is important first to clarify what such a factor
would have to suggest in order to influence the constitutional rules. Trends
capable of influencing views on delegation would have to do more than cast
[*71] doubt on regulation in general. That is because the alternative to
administrative agency regulation under vague mandates is surely not no
regulation. If a court invalidated a regulatory scheme on nondelegation
doctrine grounds, the likely result would be that Congress would re-adopt the
legislation and provide for private enforcement or it would cure the lack of
intelligible principle, re-enact the legislation, and re-delegate to the same
administrative agency. So factors that might have the capacity to influence
non-delegation rules would have to cast doubt, not on regualtion generally, but
on actions taken by administrative agencies.
The constitutional doctrine facilitating delegations to such entities has
stubbornly refused to move. Does this mean that the courts are enchanted by
administrative agencies? n101 To the contrary. If the New Deal period started
with enormous enthusiasm about the capacity for expert administration, that
attitude was quickly replaced by skepticism about the possibility of the
talented and public-spirited regulator. The agency official rather quickly came
to be viewed as incompetent or, worse, in the business of delivering rents to
the parties he was supposed to regulate. Judicial doctrines, mostly in the
field of administrative law, evolved rather dramatically to take account of
this new vision. n102
Why didn't such skepticism lead to a revision in the nondelegation doctrine?
Let me offer three admittedly speculative suggestions. First, the rise in
disenchantment with administration came at the wrong time given the overall
jurisprudential commitments of the Supreme Court. The concern [*72] that
agencies might be captured manifested itself in judicial doctrine by the mid to
late 1960s. But that was a period where the post New Deal settlement - about
the scope of federal power, about deference to social and economic legislation
- was not open for re-negotiation. A revitalized nondelegation doctrine,
remember, would mean sweeping invalidation of significant parts of the
apparatus of the federal government. For example, the EPA, the FCC, the FDA,
the FTC, the OSHA, and the SEC all administer some vague mandates; it is
conceivable that adherence to nondelegation doctrine would necessitate
invalidation of portions of each of those agencies' missions. But at the point
when skepticism of agency behavior seeped into the courts, such sweeping
judicial invalidation of parts of the federal government was not in the realm
of the possible. More than this, as just noted, it was not (and still is not)
clear what would be achieved by revitalizing the nondelegation doctrine and
invalidating major parts of the administrative state. Judicial invalidation of
parts of these agencies' missions may not have seemed much better. That
alternative was not, as discussed earlier, the end of regulation of those
fields. In the face of an invalidation, Congress would probably re-enact
statutes and have them privately enforced or re-delegate to the administrative
agency with more specific instructions.
Finally, the nondelegation doctrine was not the only space in which courts
could express their concerns about agency power. There were many outlets for
judicial skepticism because courts had sub-constitutional tools available to
tame that incompetent or captured agency. These were tools that courts used
with vigor. Through the everyday mechanisms of administrative law, courts
transformed what agencies were required to do in order to survive judicial
review of their actions. n103 Agency actions had to be transparent,
participatory, and reasonably justified for the court. n104 Once tamed, the
administrative agency does not seem a candidate for reform even when it does
become possible to reconsider old commitments.
D. The Normative/Political Valence of Federalism and Separation of Powers
Aside from those who describe the changing conditions that make movement
toward devolution possible, many commentators stake out more normative
positions on the Court's federalism decisions. They argue that the Court's
federalism revival is explained by some factor and then they either [*73] decry
or celebrate that development. Several commentators, for instance, have
characterized the Rehnquist Court federalism revival as politically
conservative. n105 Political conservatives are fans of federalism, so goes the
argument, because state governments are less likely to enact certain types of
regulation and wealth redistribution regimes. Given interjurisdictional
competition, for example, redistribution of wealth is systematically less
likely to occur at the state level. Others explain that the court has rightly
become more persuaded of the traditional virtues of a federalist
system-experimentation and inter-state competition yielding superior approaches
(races to the top), diversity (carrying the possibility of satisfying more
preferences), or the intrinsic value of decentralized government
These arguments paint too broadly. It is hard to take much away from the
checkerboard of the Court's federalism "revolution." Piece together the Court's
decisions on the Commerce Clause, Section 5 of the Fourteenth Amendment, the
anti-commandeering rule rooted in the Tenth Amendment, and state immunity from
damage actions rooted in the Eleventh Amendment. These movements in the
direction of the states are a strange mishmash that hardly add up to a
full-scale shift of government authority to the states. n107 Compared to the
results one might hope to achieve, or fear would result, from a comprehensive
devolution of federal authority to state governments, the Court's decisions
seem a thin reed indeed. Nonetheless, I shall take as a given that - at the
margins, as the economists like to say - federalism decisions can be
understood, as well as defended or critiqued, along such dimensions as
consistency with a politically conservative preference [*74] for state instead
of federal action, or for the traditional values of federalism -
experimentation, diversity, and localized decisionmaking.
What is striking about all these perspectives on federalism is that, despite
their differences, they are committed to the notion that limitations on federal
power, and comparative enhancement of state power, have predictable
consequences. They then bemoan or celebrate those consequences. But the shared
assumption is that it really matters whether states decide something or the
federal government decides something. The specific views underlying the
assumption are that states will be more politically conservative; they will
experiment by pursuing diverse responses to social problems, which can tell us
something about the best response or at least permit people to match with the
state regime that most suits their preferences; or states satisfy a deep need
for decisionmaking that is close to the people.
The shared assumption seems quite plausible. Shifting authority away from
federal actors and to state actors is to send authority to a systematically
different set of decisionmakers. State political systems are genuinely
different political systems than the national political system. Consider first
the formal differences one notices in a survey of state governmental
structures. Many governors have line-item veto authority; n108 many state
judiciaries are elected; n109 many states have traditions of referenda. n110
And the less formal differences are no less real. There are systematic
ideological and cultural differences that map on to states and regions of the
country. Levels of state regulation and state redistribution vary even in the
current regime, where there is strong pressure toward national uniformity.
Those who write about separation of powers believe that it really matters
whether, for instance, Congress or the executive branch decides some question.
And on many important levels, it does. The executive and the legislature are
structured and staffed differently. Not only are these institutions structured
differently, they have different jobs to do, different ways of doing those
jobs, and different internal norms. And from a democratic theory perspective,
the choice between Congress and an administrative agency is the choice between
decisionmakers with electoral connections and those without direct electoral
But those who think about separation of powers can exaggerate these
differences and the comparison to federalism well makes the point. To take up
the primary delegation question, if one compares the choice between [*75]
Congress and the executive on the one hand to the choice between the federal
government and state governments on the other, the consequences of the
intra-federal choice seem puny because the differences by comparison look
lilliputian. Compare two hypothetical cases: In one, the Supreme Court holds
that the Occupational Safety and Health Act is an unconstitutional delegation
of legislative power because it lacks an intelligible principle by which the
agency can implement the Act. Congress will have to re-write the Act with more
specific standards if the regime is to stand. In the other case, the Court
holds that there is no enumerated power that permits the federal government to
have a federal regime of occupational safety and health. No Congressional
re-drafting will solve the problem; occupational safety and health regimes, if
they are to exist at all, will exist at the state level only. Is there any
doubt that the latter would be revolutionary while the former would not? The
federal political system is first and foremost a federal system. When compared
to the federal/state choice, the incentives of decisionmakers in the federal
system-and especially the two democratic institutions-are more similar than
different; the constituencies that care about what government does are active
in, have access to, and influence in the whole range of federal institutions.
This matters because it means it is difficult to predict the outcome of a
shift of authority from one institution to the other. n111 If the President had
a line-item veto, would the world look a lot different? If Congress specified
regulatory trade-offs instead of administrative agencies specifying regulatory
trade-offs, would the world look a lot different? The answers to these
questions are far from clear. Those choices would channel decisionmaking to
different decisionmakers (to the President from Congress; to the Congress from
the agency) with different ways of doing business. But no matter where the
decision is lodged, the decisionmaker without the authority will continue to
exist, will express its views, and will remain a repeat player in a federal
system where there are thousands of occasions for inter-branch negotiation and
compromise. More than that, the constituencies that care about the choice that
is being made will energetically press their views to the decisionmaker, no
matter where he sits. It is for these reasons that the allocation of authority
between Congress and the executive, for instance, does not have the sort of
systematic valence as does the choice between the federal government and state
governments. And, without such predictable consequences to either celebrate or
worry about, it will be much harder for external forces to influence in major
ways doctrines like the nondelegation doctrine.
IV. Lessons of the Comparison
This comparison between federalism and separation of powers has some broader
lessons. One lesson is that we should be cautious of some of the global
explanations that have been offered for the Rehnquist Court's decisions. A turn
toward historically informed constitutional interpretation cannot explain what
has happened in separation of powers law. Nor can an explanation that
emphasizes the Court's confidence about its exercise of judicial review explain
the Court's resistance to revising some parts of separation of powers doctrine.
The most important lesson, though, is that federalism and separation of
powers are not siblings. They might not even be cousins. True, they are both
about channeling decisionmaking authority to particular institutions and they
are not about placing substantive limits on government decisionmaking
generally. But they are fundamentally different as a matter of positive law and
political economy. For those reasons, the internal and external factors that
generate the doctrine should be expected to produce different patterns. In
other words, the main lesson here is that the federalism and separation of
powers are apples and oranges. They will not ripen and fall off the tree
together and we should not expect them to.
n1. United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison,
529 U.S. 598 (2000).
n2. New York v. United States, 505 U.S. 144 (1992); Printz v. United States,
521 U.S. 898 (1997). But see Reno v. Condon, 528 U.S. 141 (2000) (rejecting
Tenth Amendment challenge to the Driver's Privacy Protection Act of 1994).
n3. Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Fla. Prepaid
Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999); Kimel
v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Bd. of Trs. of the Univ. of Ala. v.
Garrett, 531 U.S. 356 (2001).
n4. City of Boerne v. Flores, 521 U.S. 507 (1997); Morrison, 529 U.S. at
n5. From the beginning of the Rehnquist Court to today, other than Article
III standing cases, my count includes the following: Morrison v. Olson, 487
U.S. 654 (1988), Mistretta v. United States, 488 U.S. 361 (1989), Skinner v.
Mid-America Pipeline Co., 490 U.S. 212 (1989), Touby v. United States, 500 U.S.
160 (1991), Metropolitan Washington Airports Authority v. Citizens for the
Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991), Freytag v.
Commissioner, 501 U.S. 868 (1991), Weiss v. United States, 510 U.S. 163 (1994),
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995), Loving v. United States,
517 U.S. 748 (1996), Edmond v. United States, 520 U.S. 651 (1997), Clinton v.
Jones, 520 U.S. 681 (1997), Clinton v. City of New York, 524 U.S. 417 (1998),
Miller v. French, 530 U.S. 327 (2000), and Whitman v. American Trucking Ass'ns,
531 U.S. 457 (2001).
n6. The most important include: Lujan v. National Wildlife Federation, 497
U.S. 871 (1990), Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), Raines v.
Byrd, 521 U.S. 811 (1997), Steel Co. v. Citizens for a Better Environment, 523
U.S. 83 (1998); FEC v. Akins, 524 U.S. 11 (1998); Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), and Vermont
Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765
n7. Olson, 487 U.S. 654.
n8. Mistretta, 488 U.S. 361.
n9. City of New York, 524 U.S. 417.
n10. Jones, 520 U.S. 681.
n11. Plaut, 514 U.S. 211; see also Miller, 530 U.S. 327.
n12. United States v. Munoz-Flores, 495 U.S. 385 (1990).
n13. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001); Loving v. United
States, 517 U.S. 748 (1996); Touby v. United States, 500 U.S. 160 (1991);
Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212 (1989).
n14. Mistretta v. United States, 488 U.S. 361 (1989).
n15. Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft
Noise, Inc., 501 U.S. 252 (1991); Freytag v. Commissioner, 501 U.S. 868 (1991);
Weiss v. United States, 510 U.S. 163 (1994); Edmond v. United States, 520 U.S.
651 (1997). Morrison v. Olson, 487 U.S. 654 (1988), also involved the
Appointments Clause, and Morrison and Mistretta, 488 U.S. 361, both involved
n16. Clinton v. City of New York, 524 U.S. 417, 465 (1998) ("It is [the
nondelegation] doctrine, and not the Presentment Clause, that was discussed in
the Field opinion, and it is this doctrine, and not the Presentment Clause,
that is the issue presented by the statute before us here.") (Scalia, J.,
n17. The majority in the line-item veto case may have gestured toward this
argument when it noted, "our first President understood the text of the
Presentment Clause as requiring that he either "approve all the parts of a
Bill, or reject it in toto.'" Id. at 440. Whether the Court is invoking this
argument, it is a conventional one against a legislative veto. See M. Elizabeth
Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. Pa. L.
Rev. 603, 627 & n.69 (2001).
n18. Mistretta, 488 U.S. 361; Touby, 500 U.S. 160; Loving, 517 U.S. 748;
Whitman, 531 U.S. 457.
n19. Olson, 487 U.S. 654, which did revise the doctrine, is discussed in the
text, infra text accompanying notes 26-44. The other cases evaluating
appointments arrangements include: Mistretta, 488 U.S. 361, Metropolitan
Washington Airports, 501 U.S. 252, Freytag, 501 U.S. 868, Weiss, 510 U.S. 163,
and Edmond, 520 U.S. 651.
n20. 488 U.S. at 374 ("In light of our approval of these broad delegations,
we harbor no doubt that Congress' delegation of authority to the Sentencing
Commission is sufficiently specific and detailed to meet constitutional
requirements."); id. at 380 (outlining standard separation of powers test for
evaluation of an institutional arrangement); id. at 390 ("In light of this
precedent and practice, we can discern no separation-of-powers impediment to
the placement of the Sentencing Commission within the Judicial Branch."); id.
at 397 ("We find Congress' requirement of judicial service somewhat
troublesome, but we do not believe that the Act impermissibly interferes with
the functioning of the Judiciary."); id. at 404 ("In light of the foregoing
history and precedent, we conclude that the principle of separation of powers
does not absolutely prohibit Article III judges from serving on commissions
such as that created by the Act. "); id. at 409 ("We have never considered it
incompatible with the functioning of the Judicial Branch that the President has
the power to elevate federal judges from one level to another or to tempt
judges away from the bench with Executive Branch positions."); id. at 411 ("We
see no risk that the President's limited removal power will compromise the
impartiality of Article III judges serving on the Commission and, consequently,
no risk that the Act's removal provision will prevent the Judicial Branch from
performing its constitutionally assigned function of fairly adjudicating cases
and controversies."); id. at 412 ("We conclude that in creating the Sentencing
Commission - an unusual hybrid in structure and authority - Congress neither
delegated excessive legislative power nor upset the constitutionally mandated
balance of powers among the coordinate Branches. The Constitution's structural
protections do not prohibit Congress from delegating to an expert body located
within the Judicial Branch the intricate task of formulating sentencing
guidelines consistent with such significant statutory direction as is present
n21. City of New York, 524 U.S. at 438-40 (holding that the line-item veto
violates bicameralism and presentment requirements of Articles I and II).
n22. 520 U.S. 681, 692 (1997) ("Petitioner's principal submission - that in
"all but the most exceptional cases,' the Constitution affords the President
temporary immunity from civil damages litigation arising out of events that
occurred before he took office - cannot be sustained on the basis of
precedent." (citation omitted)); id. at 705 ("In sum, "it is settled law that
the separation-of-powers doctrine does not bar every exercise of jurisdiction
over the President of the United States.' If the Judiciary may severely burden
the Executive Branch by reviewing the legality of the President's official
conduct, and if it may direct appropriate process to the President himself, it
must follow that the federal courts have power to determine the legality of his
unofficial conduct." (citation omitted)).
n23. City of New York, 524 U.S. at 438 ("In both legal and practical effect,
the President has amended two Acts of Congress by repealing a portion of
each... . There is no provision in the Constitution that authorizes the
President to enact, to amend, or to repeal statutes."); INS v. Chadha, 462 U.S.
919, 956-57 (1983) ("Since it is clear that the action by the House under
244(c)(2) was not within any of the express constitutional exceptions
authorizing one House to act alone, and equally clear that it was an exercise
of legislative power, that action was subject to the standards prescribed in
n24. City of New York, 524 U.S. at 464-65 (line-item veto fully satisfies
bicameralism and presentment requirements) (Scalia, J., dissenting); E. Donald
Elliott, INS v. Chadha: The Administrative Constitution, the Constitution, and
the Legislative Veto, 1983 Sup. Ct. Rev. 125, 134 ("The legislative veto
"alters legal rights,' however, only because the Court chooses to characterize
its effect that way.").
n25. See supra note 22.
n26. 272 U.S. 52 (1926).
n27. 295 U.S. 602 (1935).
n28. Myers, 272 U.S. at 176.
n29. Tenure in Office Act, ch. 154, 14 Stat. 430 (1867).
n30. See generally Michael Les Benedict, The Impeachment and Trial of Andrew
Johnson (Harold M. Hyman ed., 1973).
n31. 295 U.S. 602.
n32. 487 U.S. at 688-89.
n33. Id. at 689.
n34. Id. at 689-90 (quoting U.S. Const. art. II, 3) (alterations in
n35. Judith A. Best, Budgetary Breakdown and the Vitiation of the Veto, in
The Fettered Presidency: Legal Constraints on the Executive Branch 119, 121-23
(L. Gordon Crovitz & Jeremy A. Rabkin eds., 1989) (observing that "the last
minute omnibus appropriations bill is virtually veto proof" because the
President, not Congress, will take the blame for a government shutdown); Steven
G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L.
Rev. 23, 79 (1995) (arguing that the President's power to exercise his
"national, anti-factional voice" in the appropriations process is reduced when
unrelated riders are added to an omnibus appropriations bill because of the
political consequences of a government shutdown resulting from a veto of the
bill over the riders); Michael J. Gerhardt, The Bottom Line on the Line-Item
Veto Act of 1996, 6 Cornell J.L. & Pub. Pol'y 233, 235 (1997) (discussing the
diminishment of the President's veto power due to omnibus legislation as one of
the reasons for support of line-item veto power in general and the Line-Item
Veto Act of 1996); Glen Robinson, Public Choice Speculations on the Item Veto,
74 Va. L. Rev. 403, 407-09 (1988) (explaining that bills that bundle public and
private goods together, including omnibus bills, are rarely vetoed because the
President is unwilling to incur the political costs resulting from failing to
approve the public goods provisions or has judged that the benefits of the bill
overall outweigh the costs of the offending private goods provisions); J.
Gregory Sidak & Thomas A. Smith, Four Faces of the Item Veto: A Reply to Tribe
and Kurland, 84 Nw. U. L. Rev. 437, 467-74 (1990) (asserting that omnibus bills
and other bundled bills diminish the President's veto power). But see Neal E.
Devins, In Search of the Lost Chord: Reflections on the 1996 Item Veto Act, 47
Case W. Res. L. Rev. 1605, 1619-23 (1997) (arguing that omnibus bills do not
weaken the President's veto power because, "an energetic President, through the
threatened use of his veto power, may take advantage of high stakes omnibus
legislation to enhance his bargaining position").
n36. Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and
Presidential Power 79-87 (2001) (concluding that executive orders have become
more substantive in nature over time, that the number of significant executive
orders issued each year has increased since the 1950s, and that "the percentage
of executive orders that deal with foreign affairs, executive branch
administration, and domestic policy has grown significantly since the 1930s");
Calabresi, supra note 35, at 30 (noting the "anti-Presidentialist" argument
that the President has "too much power over lawmaking," in part because of a
"much more aggressive presidential use of executive orders and signing
statements"); Tara L. Branum, President or King? The Use and Abuse of Executive
Orders in Modern-Day America, 28 J. Legis. 1 (2002) (observing that the scope
of executive orders has expanded historically, especially in times of crisis).
n37. I should note here that my focus is primarily in the domestic arena. I
am not taking on and evaluating separation of powers questions that arise in
the foreign affairs context. There is a large body of literature examining
those contexts. See, e.g., John K. Setear, The President's Rational Choice of a
Treaty 's Preratification Pathway: Article II, Congressional-Executive
Agreement, or Executive Agreement?, 31 J. Legal Stud. S5-39 (2002).
n38. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 487 (2001) (Thomas, J.,
n40. Morrison v. Olson, 487 U.S. 654, 697-734 (1988) (Scalia, J.,
n41. Mistretta v. United States, 488 U.S. 361, 413-27 (1989) (Scalia, J.,
n42. The most obvious case here is Justice Scalia's solo dissent in
Morrison. But there are others. See, e.g., Young v. United States ex rel.
Vuitton et Fils, S.A., 481 U.S. 787, 815 (1987) (Scalia, J., concurring)
(explaining that prosecution is an executive function and that is the reason
that a federal court cannot appoint private citizen to investigate and
prosecute criminal contempt); Printz v. United States, 521 U.S. 898, 922-23
(1997) (stating that the Brady Act is constitutionally problematic, inter alia,
because the President cannot control state officers who administer the law);
id. at 959-60 (calling Justice Scalia's Article II argument "colorful
hyperbole") (Stevens, J., dissenting); see also Vt. Agency of Natural Res. v.
United States ex rel. Stevens, 529 U.S. 765, 778 & n.8 (2000) (holding that qui
tam relators can have Art III standing, but reserving the question of whether
qui tam relators violate the Appointments Clause or the take care clause of
n43. Touby v. United States, 500 U.S. 160 (1991); Loving v. United States,
517 U.S. 748 (1996); Am. Trucking, 531 U.S. 457.
n44. Olson, 487 U.S. 654, is the most important case. There, the Court went
beyond the existing precedent rather than revised it. In FEC v. NRA Political
Victory Fund, 513 U.S. 88 (1994), the Court held that the FEC did not have the
authority to litigate on its own behalf in the Supreme Court. It was a
statutory, not constitutional, holding. Id. at 99. The challenges to the FEC
presented in the lower court were based on unitary executive theories. See FEC
v. NRA Political Victory Fund, 6 F.3d 821, 823-34 (D.C. Cir. 1993) (addressing
challenges to the statute's requirement of bi-partisan appointment, to the
FEC's independence of the President in its law enforcement activities, and to
the appointment by Congress of ex officio members of the Commission).
n45. See generally G. Edward White, The Arrival of History in Constitutional
Scholarship, 88 Va. L. Rev. 485 (2002) (documenting the growth and influence of
the role of history in legal scholarship generally and constitutional
n46. See generally Mark V. Tushnet, A Note on the Revival of Textualism in
Constitutional Theory, 58 S. Cal. L. Rev. 683 (1985).
n47. Larry D. Kramer, Forward, We the Court, 115 Harv. L. Rev. 4, 14 (2001)
( "The Rehnquist Court no longer views itself as first among equals, but has
instead staked its claim to being the only institution empowered to speak with
authority when it comes to the meaning of the Constitution.").
n48. Herbert Wechsler was the most famous exponent of this argument in the
modern era. See Herbert Wechsler, The Political Safeguards of Federalism, in
Principles, Politics, and Fundamental Law: Selected Essays 49 (1961). Larry
Kramer updated the argument. See Larry Kramer, Putting the Politics Back into
the Political Safeguards of Federalism, 100 Colum. L. Rev. 215 (2000).
n49. Jesse H. Choper, Judicial Review and the National Political Process: A
Functional Reconsideration of the Role of the Supreme Court (1980).
n50. 469 U.S. 528 (1985).
n51. 317 U.S. 111 (1942).
n52. 312 U.S. 100 (1941).
n53. 514 U.S. 211 (1995).
n54. Id. The statute at issue in Plaut was enacted in response to Lampf,
Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991), in which
the Supreme Court established a statute of limitations for certain securities
fraud suits; the suits had to be filed within one year after the discovery of
the facts constituting the basis for the claim and within three years after the
violation. Id. at 364. As a result of Lampf, some suits that had been timely
filed under the pre-Lampf regime had to be dismissed on the authority of Lampf.
Congress reversed the Lampf holding for cases that had been filed prior to
Lampf and were, under pre-Lampf rules, timely. Plaut, 514 U.S. at 213-15. Under
the statute, such suits could be reinstated upon the filing of a motion. 15
U.S.C. 78aa-1 (2000).
n55. 481 U.S. 787 (1987).
n56. Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787
(1987). United States v. Providence Journal Co., 485 U.S. 693 (1988) is the
follow-on case. Interestingly, in that case the Solicitor General argued that
the private prosecutor did not need his approval to seek certiorari. Id. at
n57. 521 U.S. 507, 535-36 (1997).
Our national experience teaches that the Constitution is preserved best when
each part of the Government respects both the Constitution and the proper
actions and determinations of other branches. When the Court has interpreted
the Constitution, it has acted within the province of the Judicial Branch,
which embraces the duty to say what the law is. Marbury v. Madison, 5 U.S. 137
(1 Cranch) 136, 177 (1803). When the political branches of Government act
against the background of a judicial interpretation of the Constitution already
issued, it must be understood that in the later cases and controversies the
Court will treat its precedents with the respect due them under settled
principles, including stare decisis, and contrary expectations must be
See Max Kidalov & Richard H. Seamon, The Missing Pieces of the Debate over
Federal Property Rights Legislation, 27 Hast. Const. L.Q. 1, 76 (1999) ("No one
can read Boerne without sensing the Court's indignation at Congress' attempt in
the RFRA to overrule Smith.").
n58. FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994).
n59. Providence Journal Co., 485 U.S. 693 at 698-99.
n60. Legal Serv. Co. v. Velazquez, 531 U.S. 533, 545-46 (2001).
n61. 497 U.S. 871 (1990).
n62. Daryl J. Levinson, Empire-Building Government in Constitutional Law,
118 Harv. L. Rev. (forthcoming 2004).
n63. 514 U.S. 211 (1995).
n64. 530 U.S. 327 (2000).
n65. See Michael J. Klarman, What's So Great About Constitutionalism?, 93
Nw. U. L. Rev. 145, 149-50 (1998) (noting that federal courts may have "an
abstract bias in favor of expanding the power of the government with which they
are affiliated" as well as "a concrete incentive to expand national government
power and thereby augment their own jurisdiction vis-a-vis state courts"
because an expansion of federal legislative power might result in the expansion
of federal judicial power); G. Edward White, Recovering Coterminous Power
Theory, 14 Nova L. Rev. 155, 168-69 (1989) (discussing the argument made by the
anti-Federalist commentator "Brutus" that the federal judiciary will expand the
power of the national government and its own jurisdiction by broadly
interpreting the powers set forth in Articles I and III).
n66. 514 U.S. 549, 561-68 (1995).
n67. 424 U.S. 1 (1976).
n68. 478 U.S. 714 (1986).
n69. 501 U.S. 252 (1991).
n70. Humphrey's Executor v. United States, 295 U.S. 602 (1935).
n71. FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994) (dismissing a
challenge to bi-partisanship requirements for want of jurisdiction).
n72. Buckley, 424 U.S. at 143 (holding that appointment by House and Senate
to FEC not constitutional nor is requirement that both houses approve all
appointments); Bowsher, 478 U.S. at 736 (finding it unconstitutional for
Congress to retain power to remove Comptroller General, who performs executive
function under Gramm-Rudman-Hollings Act); Myers v. United States, 272 U.S. 52
(1926) (holding that requiring the Senate to approve removal of postmaster
first class is unconstitutional).
n73. Morrison v. Olson, 487 U.S. 654, 670-73 (1988).
n74. 501 U.S. 868 (1991) (holding that a special trial judge appointed by
the chief judge of the Tax Court is an "inferior officer" and that the Tax
Court is a "Court of Law" for purposes of the Appointments Clause).
n75. 510 U.S. 163 (1994).
n76. 520 U.S. 651 (1997) (stating that judge of Coast Guard Court of
Criminal Appeals is an inferior officer for Appointments Clause purposes).
n77. Mistretta v. United States, 488 U.S. 361, 397-408 (1989).
n78. 501 U.S. 252 (1991).
n79. A generalized version of this claim would be that the character of
constitutional doctrine is explained by the character of the constitutional
text that is being interpreted. More particularly, the argument would be that
the more specific the constitutional rule, the less likely there is to be
judicial creativity and, with that, evolving constitutional doctrines. While
most would take the example in the text - President be thirty-five years of age
- as a noncontroversial example that generally supports the broader claim, the
broad claim cannot be correct. There are some obvious counter-examples that
disprove it. The Eleventh Amendment, which sets forth a classic rule but has
been interpreted as if it sets forth a standard about protection of state
sovereignty, is one counter example. Many constitutional theorists have written
on this question. For a characteristically thoughtful discussion of the claim
about the relationship between constitutional text and constitutional
interpretation by judges, see Frederick Schauer, Constitutional Invocations, 65
Fordham L. Rev. 1295 (1997).
The claim I am making is much narrower. My claim is that the existence of a
rule like the Appointments Clause helps explain the effective justiciability of
the appointments questions. It is not that the appointments rule is likely to
be enforced in some particular way - say, consistently with its "literal"
terms. If its literal terms are violated, I suspect it would be literally
enforced. ( Buckley v. Valeo, 424 U.S. 1 (1976), is a good example.) But the
bottom line claim here is not about the result that will be reached in
appointments cases; it is that the likely judicial response to the Appointments
Clause will be to enforce it in some way.
n80. U.S. Const. art. II, 1, cl. 5.
n81. Id. art. I, 6, cl. 2.
n82. The literature on this topic is so large that even the standard survey
footnote cannot do it justice. For a recent discussion and evaluation of the
political question doctrine, see Rachel E. Barkow, More Supreme than Court: The
Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102
Colum. L. Rev. 237 (2002).
n83. For example, the Court held nonjusticiable Judge Walter Nixon's
challenge to the procedures used by the Senate in his impeachment trial. The
Senate relied on a committee, which Judge Nixon argued violated the requirement
of Article I, section 3 that the "Senate shall have the sole Power to try all
Impeachments." See Nixon v. United States, 506 U.S. 224 (1993). There are also
the several lower court cases that have held nonjusticiable challenges to
military actions taken without a congressional declaration of war. See, e.g.,
Holtzman v. Schlesinger, 484 F.2d 1307 (3d Cir.), cert. denied, 416 U.S. 936
n84. Goldwater v. Carter, 444 U.S. 996 (1979). The Court did not have merits
briefing and argument. Instead, it granted certiorari, vacated the judgment
below, and remanded with instructions to dismiss the complaint. Then-Justice
Rehnquist wrote for a plurality to explain that the question was a political
one and therefore nonjusticiable. Id. at 1002.
n85. And some of them were not. The fact that the treaty contained an
explicit provision for termination by either party on one year's notice was
crucial to the lower court's disposition in the case on the merits. See
Goldwater v. Carter, 617 F.2d 697, 699 (D.C. Cir.), judgment vacated, 444 U.S.
n86. The argument is outlined in the D.C. Circuit's opinion. See Goldwater,
617 F.2d at 703 ("[The argument] is that, since the President clearly cannot
enter into a treaty without the consent of the Senate, the inference is
inescapable that he must in all circumstances seek the same senatorial consent
to terminate that treaty."). Interestingly, the court goes on to note that this
argument would mean that the Senate must approve the removal of an officer that
was appointed with advice and consent of the Senate, a position, the court
points out, that was rejected in Humphrey's Executor. Id.
n87. Freytag v. Commissioner, 501 U.S. 868 (1991); see also Weiss v. United
States, 510 U.S. 163 (1994) (classifying military officers serving as military
judges as inferior officers who are properly appointed based on their
commission from the President); Edmond v. United States, 520 U.S. 651 (1997)
(determining that judge of Coast Guard Court of Criminal Appeals is an inferior
officer and thus appointment by Secretary of Transportation is permissible).
n88. 424 U.S. at 113; see also id. at 118-41. There were six voting members.
Two were appointed by the President pro tempore of the Senate; two were
appointed by the Speaker of the House; and two were appointed by the President.
All six of the voting members had to be confirmed by both houses of Congress.
n89. Id. Some cases about the structure of an office do not involve the
Appointments Clause. The Court could evaluate the structure and appointment of
the Sentencing Commission without much consideration of the Appointments
Clause. And, while the clause speaks to the appointment of an officer, it does
not explicitly speak to the officer's removal. Although tenure-in-office
restrictions on removal were, as noted in the text, rooted in a negative
implication of the Appointments Clause, other cases were not defended on that
theory. Where Congress kept removal power, as in Bowsher v. Synar, the Court's
evaluation did have to involve the Appointments Clause. 478 U.S. 714, 765-766
(1986) (White, J., dissenting). And the several cases involving what I have
termed "indirect" restrictions on removal - illustrated by Humphrey's Executor
v. United States, 295 U.S. 602, 629 (1935) and Morrison v. Olson, 487 U.S. 654,
692-93 (1988) - were justified under the necessary and proper power. One could
conceivably understand them as a "lesser included power" to a tenure-in-office
power which was itself rooted in part on the Senate's role in advice and
consent. But they have not generally been defended on that ground.
n90. Magill, supra note 17, at 608-26.
n91. INS v. Chadha, 462 U.S. 919 (1983).
n92. Clinton v. City of New York, 524 U.S. 417 (1998).
n93. Keith E. Whittington, Dismantling the Modern State? The Changing
Structural Foundations of Federalism, 25 Hastings Const. L.Q. 483 (1998)
[hereinafter Whittington, Dismantling]; Keith E. Whittington, Taking What They
Give Us: Explaining the Court's Federalism Offensive, 51 Duke L.J. 477, 496-506
(2001) (explaining the shift in the Rehnquist's Court's attitude toward
federalism as a response to changing "economic and social conditions,"
increasing Presidential and intellectual support for federalism, and decreasing
public trust in the federal government) [hereinafter Whittington, Federalism
Offensive]; see also Howard Gillman, Reconnecting the Modern Supreme Court to
the Historical Evolution of American Capitalism, in The Supreme Court in
American Politics: New Institutionalist Interpretations 235, 241-46 (Howard
Gillman & Cornell Clayton eds., 1999) (explaining the New Deal shift in the
Court's federalism preferences as a result of changes in the national economy
due to industrialization and suggesting that the reemergence of federalism
associated with the Rehnquist Court may also be due to major economic changes,
such as globalization and decentralization).
n94. Whittington, Dismantling, supra note 93, at 490-503.
n95. Id. at 510.
n96. Id. at 511-16.
n97. Id. at 516. Christopher Schroeder supplements the account by pointing
to the ways in which distrust of the federal government has grown dramatically
in recent years. Christopher H. Schroeder, Causes of the Recent Turn in
Constitutional Interpretation, 51 Duke L.J. 307, 334-51 (2001).
n98. Joel R. Paul, The Geopolitical Constitution: Executive Expediency and
Executive Agreements, 86 Cal. L. Rev. 671, 681-83, 708-22, 748-66 (1998)
(arguing that the judiciary's acceptance of the argument of executive necessity
in foreign affairs and national security cases during the Cold War, and the
resulting entrenchment of deference to the executive in these areas, has led to
a "permanent expansion of executive power"); Jill Elaine Hasday, Civil War as
Paradigm: Reestablishing the Rule of Law at the End of the Cold War, 5 Kan.
J.L. & Pub. Pol'y 129, 130-32, 137-40 (1996) (comparing the expansive
understandings of executive power during the Civil War and the Cold War); Jules
Lobel, Emergency Power and the Decline of Liberalism, 98 Yale L.J. 1385,
1398-1412, 1418-21 (1989) (discussing the growth of executive power during the
twentieth century as a result of the Cold War and U.S. involvement in
international affairs (such as the drug war, Central America's instability in
the 1980s, and the Iran-Contra affair)); David P. Currie, The Constitution in
the Supreme Court: The Second World War, 1941-1946, 37 Cath. U. L. Rev. 1, 4-21
(1987) (discussing Supreme Court cases dealing with executive and legislative
powers during World War II).
n99. Cynthia R. Farina, Statutory Interpretation and the Balance of Power in
the Administrative State, 89 Colum. L. Rev. 452, 479-87 (1989) (tracing the
development of the nondelegation doctrine in the twentieth century and its
application to administrative agencies); Thomas W. Merrill, Capture Theory and
the Courts: 1967-1983, 72 Chi.-Kent L. Rev. 1039, 1056-59, 1104-06 (1997)
(discussing the public interest understanding of administrative agencies and
its influence on the nondelegation doctrine).
n100. Whittington, Dismantling, supra note 93, at 490-93; G. Edward White,
The Constitution and the New Deal 94-129 (2000).
n101. Eric Claeys has thoughtfully argued that the Supreme Court's case law
can be explained by commitment to a progressive theory of apolitical
administration. When apolitical administration is advanced, the Court upholds
the arrangement; when apolitical administration is undermined, the Court
invalidates the arrangement. See Eric R. Claeys, Progressive Political Theory
and Separation of Powers on the Burger and Rehnquist Courts (forthcoming 2005),
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=480691 (last
visited Sept. 16, 2004). As I suggest in the text, I think the argument misses
the serious skepticism of agency decisionmaking that is now reflected in
administrative law doctrines.
n102. Merrill, supra note 99, at 1059-68, 1075-1112 (discussing the shift in
the dominant understanding of administrative agencies from public trust to
capture theory and the resulting consequences for legal doctrines concerning
agencies); Reuel E. Schiller, Rulemaking's Promise: Administrative Law and
Legal Culture in the 1960s and 1970s, 53 Admin. L. Rev. 1139, 1142, 1149-55
(2001) (explaining federal court decisions of the 1960s and '70s that
heightened review of agency actions and required agencies to engage in
rulemaking, in part, as a response to criticism that agencies had become
"arbitrary, inefficient, and inevitability captured by the interests they were
supposed to regulate") [hereinafter Schiller, Rulemaking's Promise]; Reuel E.
Schiller, Enlarging the Administrative Polity: Administrative Law and the
Changing Definition of Pluralism, 53 Vand. L. Rev. 1389, 1417-42 (2000)
(describing the decline of "interest group pluralism" and subsequent efforts by
courts to make the administrative process more participatory through the
doctrines of judicial review, administrative process, and standing)
[hereinafter Schiller, Enlarging the Administrative Polity]; Richard B.
Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669,
1670, 1712-60 (1975) (identifying the change in attitude towards the
traditional administrative state and describing the resulting development of
legal doctrines by federal judges to insure fair representation of parties
affected by the actions of administrative agencies).
n103. See M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U.
Chi. L. Rev. (forthcoming 2004).
n104. See Stewart, supra note 102, at 1717-22 (discussing the requirements
of administrative process and adequate consideration of interests, the rights
of participation by individuals in agency proceedings, and the expansion of
standing); Merrill, supra note 99, at 1074-1103 (discussing the expansion of
the "availability" and "scope" of judicial review of administrative actions);
Schiller, Enlarging the Administrative Polity, supra note 102, at 1417-42. Such
sub-constitutional activity continues apace. See Motor Vehicle Mfrs. Ass'n,
Inc. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29 (1983); Chevron U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
n105. See, e.g., Herman Schwartz, The States' Rights Assault on Federal
Authority, in The Rehnquist Court: Judicial Activism on the Right 155-67
(Herman Schwarz ed., 2002) (asserting that the Rehnquist Court's federalism
jurisprudence is a "states' rights resurgence" and should be understood as a
masked "assault on those shortchanged by birth and by fortune").
n106. Steven G. Calabresi, Federalism and the Rehnquist Court: A Normative
Defense, 574 Annals Am. Acad. Pol. & Soc. Sci. 24, 27-28 (2001) (recounting the
traditional arguments in favor of federalism (satisfaction of preferences,
healthy competition between jurisdictions, increased policy experimentation,
and greater accountability)). In Calabresi's view, federalism "merely perfects
the Madisonian constitutional system, which pits differently assembled
majorities in different constituencies against each other in the hope that the
true popular will thus emerge and prevail." Id. at 35; see also John O.
McGinnis, Reviving Tocqueville's America: The Rehnquist Court's Jurisprudence
of Social Discovery, 90 Cal. L. Rev. 485, 489, 511 (2002) (arguing that the
Rehnquist Court is engaged in a revival of federalism that can be described as
part of its jurisprudence of "decentralization and private ordering of social
n107. Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist
Court 's Federalism Decisions, 69 U. Chi. L. Rev. 429, 468 (2002) (describing
the Rehnquist Court's federalism cases as a "mixed picture"). "If the Supreme
Court is implementing a federalism revolution, it is thus distinctively a
lawyers' revolution. Though the rhetoric is sometimes audacious, few landmarks
have toppled. Much of the significance, if not the devil himself, inhabits the
details." Id. at 494; see also John C. Jeffries, Jr., In Praise of the Eleventh
Amendment and Section 1983, 84 Va. L. Rev. 47, 47-54 (1998) (explaining the
impotence of the Eleventh Amendment as "a structural constraint on the powers
of the federal government").
n108. Louis Fisher & Neal Devins, How Successfully Can the States' Item Veto
Be Transferred to the President?, 75 Geo. L.J. 159, 166-67 (1986) (describing
the different types of veto power that states have authorized their governors
n109. Steven P. Croley, The Majoritarian Difficulty: Elected Judiciaries and
the Rule of Law, 62 U. Chi. L. Rev. 689, 725 (1995).
n110. Nathaniel A. Persily, The Peculiar Geography of Direct Democracy: Why
the Initiative, Referendum and Recall Developed in the American West, 2 Mich.
L. & Pol'y Rev. 11 (1997); Harry N. Scheiber, Forward, The Direct Ballot and
State Constitutionalism, 28 Rutgers L.J. 787 (1997).
n111. The argument here is more comprehensively developed elsewhere. See
Magill, supra note 17, at 632-49.
SYMPOSIUM: THE REHNQUIST COURT: SEPARATION OF POWERS AND THE REHNQUIST COURT:
THE CENTRALITY OF CLINTON V. CITY OF NEW YORK
Northwestern University Law Review
99 Nw. U.L. Rev. 77
NAME: Steven G. Calabresi*
BIO: * George C. Dix Professor of Law, Northwestern University School of Law.
... First, she argues that judicial policing of constitutional federalism
boundaries occurs with no relation to judicial policing of constitutional
separation of powers boundaries. ... The Court showed some solicitude during
these years for constitutional federalism in its post-Younger v. Harris cases,
but mainly federalism seemed to be either dead or one vote shy of a majority
during the high Burger Court years. ... If Professor Magill were right that the
Supreme Court is always likely to police separation of powers boundaries to
protect judicial power, surely it would do so in this area. ... Schechter
Poultry and Carter Coal were thus not only nondelegation doctrine cases, they
were also, in the words of Clinton v. City of New York, bicameralism and
presentment cases. ... Why did everyone miss the fact that Clinton v. City of
New York was the blockbuster separation of powers case of the Rehnquist years?
Why was it not immediately recognized as this Court's separation of powers
Lopez? The answer is that people missed the significance of the case partly
because Scalia's dissent confused them as to what the conservative position in
the case was and partly because the Court modestly styled its decision as a
bicameralism and presentment case denying that it was the nondelegation
doctrine decision it truly was. ...
In The Revolution that Wasn't, Professor Elizabeth Magill advances three
themes that I wish to express only partial agreement with. n1 First, she argues
that judicial policing of constitutional federalism boundaries occurs with no
relation to judicial policing of constitutional separation of powers
boundaries. n2 Second, she argues that the Court will always protect the
judiciary from separation of powers invasions by the political branches. n3 And
third, she argues that nothing much has happened during the Rehnquist Court
years on the separation of powers front. n4 I will attempt to show in this
Comment that each of these assertions is only partly true. While there is an
important kernel of truth in Professor Magill's claims, there are significant
things we can appreciate about the relation of the Court's federalism and
separation of powers case law by understanding the ways in which Magill's
claims prove to be overstated. I will address each of her three claims in
separate parts below.
First, Professor Magill advances the striking thesis that during the
Rehnquist Court years there has been a revolution in the Court's handling of
federalism cases but that there has been no comparable revolution in its
handling of separation of powers cases. Magill points to leading federalism
decisions such as United States v. Lopez, n5 United States v. Morrison, n6 City
of Boerne v. Flores, n7 New York v. United States, n8 Printz v. United States,
n9 and Seminole Tribe v. Florida, n10 as evidence of the Court's revolution in
[*78] federalism cases. She contends that because there are no blockbuster
separation of powers cases that are the equivalents of these federalism
blockbusters, the Court's rising interest in federalism has not been matched by
a rising interest in separation of powers. n11 This suggests, she implies, that
the rising interest in federalism on the Court is due less to the Rehnquist
Court being more originalist, since that would have presumably led to a
reinvigoration of separation of powers as well. n12 Rather, she implies the
Court's added interest in federalism must be due to reduced public confidence
in centralized governmental power as a way of dealing with social problems. n13
One way of testing Professor Magill's thesis that federalism and separation
of powers do not rise and fall together is by looking at time periods prior to
the Rehnquist Court and asking whether the two areas of case law rose or fell
together during those prior periods. Looking at the period between 1937 and the
beginning of the Rehnquist Court in 1986, one finds that Professor Magill's
contention that there is no relation between judicial policing of federalism
and of separation of powers is at most only half true. Between 1937 and 1976,
there are at least three major separation of powers and only one major
federalism case - a case that was in fact overturned by the passage of a
constitutional amendment. The separation of powers cases are: Youngstown v.
Sawyer (the Steel Seizure decision), n14 Powell v. McCormick, n15 and the
Richard Nixon Watergate Tapes Case, n16 while the federalism case is Oregon v.
Mitchell, n17 the case striking down a federal statute giving eighteeen
year-olds the right to vote in state elections.
During the thirty-nine year period between 1937 and 1976, it is probably
fair to say that while structural constitutional law in general came close to
dying out, there was always more vigor left in the Court's separation of powers
case law than there was left in the Court's federalism case law. Of these four
cases, the Steel Seizure Case was probably always viewed as the most important
and canonical. It was always taught in constitutional law courses as a leading
case during this period and it stood for the assumption that there was a
judicially policeable line over how much power presidents could assert without
being backed up by congressional legislation. The other two separation of
powers cases were also extremely important. Thus, Powell v. McCormick resulted
in the seating of Adam Clayton Powell, a leading African-American politician,
as a member of the House of Representatives, while United States v. Nixon
rather single-handedly brought Richard M. Nixon's ill-starred tenure as
president to an end. Oregon v. [*79] Mitchell, striking down the
eighteen-year-old vote in state elections was comparatively of less real-world
significance since it was overturned by the Twenty-Sixth Amendment.
Nonetheless, it is worth noting that of the four key structural Supreme Court
opinions between 1937 and 1976, Oregon v. Mitchell was the only one where the
Court invalidated an Act of Congress! In none of the three separation of powers
decisions between 1937 and 1976, the Steel Seizure Cases, Powell v. McCormick,
and United States v. Nixon, did the Court invalidate an act of Congress.
In sum, assessing overall the fate of separation of powers cases and
federalism cases between 1937 and 1976, one would probably conclude that both
died out to some extent together, although separation of powers always remained
more lively than federalism. Thus, this period in our history provides only
partial support for Magill's thesis.
The next period to consider are the ten years from 1976 to 1986: the high
Burger Court years. During this period there is a striking revitalization of
separation of powers case law, and a much more tentative revitalization of
constitutional federalism. The key starting point of this period is the
bicentennial year of 1976 when the Court greatly revitalized both separation of
powers with its Appointments Clause ruling in Buckley v. Valeo, n18 and
constitutional federalism with its landmark ruling in National League of Cities
v. Usery. n19 Both Buckley and National League of Cities were decisions of
great importance. In 1976, at least, separation of powers and federalism both
rose together from the ashes of the New Deal.
Over the next ten years, however, separation of powers flourished on the
Burger Court while federalism languished. In the separation of powers area,
there were major pro-separation of powers decisions: INS v. Chadha, n20
striking down the legislative veto provisions of some 200 federal statutes;
Marathon Pipeline, n21 invalidating Congress's creation of scores of federal
bankruptcy judges; Dames & Moore v. Regan, n22 which many think implicitly
departs from the Steel Seizure decision; and Bowsher v. Synar, n23 striking
down the Gramm-Rudman-Hollings deficit Control Act, a major act of Congress. In
contrast, the federalism area during the years between 1976 and 1986 saw
backward slippage as the Court narrowly overruled National League of Cities v.
Usery in Garcia v. San Antonio Metropolitan Transit Authority. n24 The Court
showed some solicitude during these years for constitutional federalism in its
post-Younger v. Harris n25 cases, but [*80] mainly federalism seemed to be
either dead or one vote shy of a majority during the high Burger Court years.
This ten year period when separation of powers flourished and federalism
languished provides the most support for Magill's thesis that the two lines of
case law do not always rise and fall together. It also helps set up the
expectations which lead Magill to conclude that there has not been a separation
of powers revolution during the Rehnquist Court years. n26 Compared to the
Burger Court's separation of powers case law, the Rehnquist Court looks like a
bust. That being said, I will try to show below that separation of powers has
been far more lively on the Rehnquist Court than federalism was during the
Garcia Burger Court years.
What do the totality of the opinions between 1937 and 1986 tell us about
whether federalism and separation of powers rise and fall together? Basically,
there are only two major federalism rulings during these years: Oregon v.
Mitchell, overturned by the Twenty-Sixth Amendment; and National League of
Cities v. Usery, overturned by Garcia. In contrast, there are at least eight
major separation of powers rulings during this period, none of which were
overturned by amendment or by a later case. These decisions again were:
Youngstown, Powell v. McCormick, the Nixon Tapes Case, Buckley v. Valeo,
Marathon Pipeline, INS v. Chadha, Dames & Moore v. Regan, and Bowsher v. Synar.
In all eight of these cases, the Court did something major in the separation of
powers area and it stuck, while relatively speaking, little or nothing was
happening in the federalism area. This is striking because the political
movement away from Big Government, certainly during the years between 1968 and
1986, which Magill credits for the Rehnquist Court's federalism case law, was
salient and evident. Why then was separation of powers so vigorous and
federalism so dead between 1937 and 1986, even in the face of a political
movement away from forces favoring centralized Big Government decision-making?
The answer to that question lies in the passage early in this century of the
Seventeenth Amendment, n27 which eliminated the role of the State Legislatures
in electing United States Senators in favor of popular election of Senators. I
submit that this fundamental constitutional change eliminated the key
institutional safeguard that gave the States some leverage over the selection
process for United States Supreme Court Justices. After the adoption of the
Seventeenth Amendment, United States Supreme Court Justices were biased
referees in federalism cases because they were picked by a national official,
the President, with no check from state governments through the Senate. I would
suggest that constitutional federalism died out post-1937 as the effects of the
Seventeenth Amendment cemented themselves in place. Post-Seventeenth Amendment,
the Supreme Court inevitably became [*81] a more pro-federal power institution
than it had been at the height of the Hammer v. Dagenhart n28 era.
In contrast, the Seventeenth Amendment did not tip the Court toward being a
more pro-president or pro-Congress institution. The current Justices are split
in their sentiments, with some being very pro-President, like Justice Scalia,
and others being very pro-Congress, like Chief Justice Rehnquist. For this
reason, separation of powers case law never died out between 1937 and 1986 in
the way that federalism case law died out. Some of the nationalists on the
Court were always pro-Presidency Justices - Fred Vinson, for example, or
Antonin Scalia - while others like Robert Jackson and William Rehnquist were
pro-Congress. This is why I submit that the High Court's separation of powers
case law was more vigorous than the Court's federalism case law from 1937 to
1986 and is likely to continue to be so.
Professor Magill further claims that the Court is always likely to vigorously
police the separation of powers because it will want to protect the Article III
judiciary from incursions by the two political branches. n29 This claim makes a
lot of intuitive sense, but unfortunately it turns out just not to be true.
Consider first the High Court's decisions on congressional power to set up
legislative, non-Article III tribunals to hear federal cases. If ever there
were an issue on which Justices ought to circle the wagons in defense of
Judicial power, surely this is that issue. By claiming power to set up non-life
tenured, non-Article III tribunals to hear core federal cases, Congress
directly diminishes the power of the Article III courts to perform their core
function. If Professor Magill were right that the Supreme Court is always
likely to police separation of powers boundaries to protect judicial power,
surely it would do so in this area.
Surprisingly, the high Burger Court, which was in general very protective of
separation of powers, turned out in the end to be very unprotective of judicial
power when it came to congressional creation of non-Article III legislative
tribunals. The Burger Court started out somewhat promisingly in this field with
the Marathon Pipeline decision, where four Justices, in an opinion by Justice
Brennan, suggested that legislative courts were generally constitutionally
problematic and should be limited to the three areas where they had
historically been allowed. Though Justice Brennan's opinion in Marathon was a
separation of powers afficionado's dream, it unfortunately garnered only four
votes. Two additional Justices, Rehnquist and O'Connor, helped to make up the
Marathon Pipeline majority, but they did [*82] so only on narrow federalism
grounds and in subsequent cases, it became clear that Brennan's views on
legislative courts were far from having five votes. In Commodity Futures
Trading Commission v. Schor, n30 where the non-Article III Commodities Future
Trading Commission was given the power to hear state law counterclaims, Justice
O'Connor wrote an opinion for the Court joined by Rehnquist, in which she
upheld congressional creation of legislative courts so long as they did not
interfere "too much" with core judicial powers. Schor was a major decision in
the legislative courts area, and it remains controlling case law to the present
day. Thus, even at a time when the Burger Court was active in the separation of
powers field, the Court bungled its key opportunity to protect the judiciary
from incursions by Congress through separation of powers doctrine.
Second, if Professor Magill were correct that the judiciary is particularly
likely to police the separation of powers to promote its own interests, one
would expect the standing decisions over the last several decades to expand
notions of standing in order to expand the number of questions on which the
federal courts can rule. Broad standing notions as in Flast v. Cohen n31
clearly expanded judicial power, so presumably in the thirty-six years since
1968 we should have seen a broadening of standing doctrine as the imperial
judiciary became more assertive. Instead, we have seen exactly the opposite
trend in standing doctrine. While there have been many ups and downs in
standing doctrine over the last thirty-six years, the broad trend has been
toward a narrower, judicial-power reducing, standing doctrine. In retrospect,
Flast v. Cohen marks an apex in judicial power from which the Court has worked
steadily to move away.
Finally, the Court has been unprotective of the right of jury trial in
administrative law proceedings, notwithstanding the explicit mandate of the
Seventh Amendment. The Seventh Amendment could be read as a major barrier to
trying factual disputes in administrative agencies before administrative law
judges ("ALJs") instead of before Article III district judges sitting together
with a jury. The Court, however, has declined to read the Seventh Amendment
broadly as protecting judicial power in leading cases such as Atlas Roofing.
n32 As a result, ALJs are able to decide all sorts of important factual
questions that arguably should be heard by federal district judges sitting with
juries. Once again, contrary to Professor Magill's thesis, the Supreme Court
has done a poor job of protecting judicial prerogatives in cases involving the
right to jury trial. One can always explain this away by pointing to the
natural tension between judges and juries and hypothesizing that Article III
Supreme Court Justices have no reason to care about the right to jury trial.
However, moving large categories of fact-finding decisions [*83] from Article
III district courts sitting with juries to ALJs clearly diminishes the overall
power of the Article III courts taken as a whole.
This brings me to my third point of partial disagreement with Professor
Magill: Her claim that little has happened on the Rehnquist Court in separation
of powers compared with federalism. n33 Once again, I think the claim is
partially true but is overstated. Compared with the high Burger Court, it is
true that the Rehnquist Court has been relatively quiet in the separation of
powers area and relatively active in the federalism area. Of course, using the
high Burger Court as one's point of comparison is inherently misleading because
that Court was especially pro-separation of powers and especially weak on
federalism in the Garcia context. Nonetheless, it is fair to say that, whereas
between 1937 and 1976 and between 1976 and 1986 separation of powers cases
outnumbered federalism cases by more than three to one, during the Rehnquist
years the ratio has at times almost seemed to be reversed. Something has
happened to reduce the salience of separation of powers case law.
That something is as follows: It is noteworthy that almost all the Rehnquist
Court's major federalism decisions have been decided on five-to-four votes with
the barest possible majority on the nine member Court. It is also clear that of
the five conservative Justices, the two leaders seem to be Chief Justice
William H. Rehnquist and Associate Justice Antonin Scalia. Rehnquist is clearly
the political leader of the Court and the chief afficionado of constitutional
federalism. Scalia is the best writer and most brilliant jurist and theorist on
the Court. He is the chief separation of powers afficionado and is something of
a rival to the Chief for the hearts and minds of young conservatives.
I submit that the reason the Rehnquist Court has been quieter on separation
of powers than federalism is because these two chief figures on the Court have
opposite leanings in separation of powers cases. Scalia's leanings are almost
always pro-executive power. The formative moments in his legal development were
running the pro-executive power Office of Legal Counsel ("OLC") in the Justice
Department and reviewing administrative agency decisions as a judge on the D.C.
Circuit. All of these experiences left Scalia with a decided pro-executive
power bias that always asserts itself in separation of powers cases.
Chief Justice Rehnquist's formative separation of powers experience,
however, was serving as a law clerk to Justice Jackson in the Steel Seizure
Case, perhaps the most noteworthy pro-Congress separation of powers opinion of
all time! Rehnquist has written enthusiastically about this formative
experience and it seems to have cemented in him a pro-Congress [*84] bias in
separation of powers cases that may explain his votes in Morrison v. Olson n34
and in Mistretta. n35 While Rehnquist shares with Scalia the experience of
having headed up OLC, it is possible that holding this post under the
notoriously lawless Richard M. Nixon left Rehnquist even more skeptical of
claims of executive power. Indeed, Rehnquist's tenure at OLC is mainly
memorable today for the principled stand against impoundment which he took - a
stand that opposed a Nixonian claim of executive power.
Finally, Rehnquist's pro-Congress bias in separation of powers cases may be
in part a result of his strong pro-State bias in federalism cases. As between
the presidency and the Congress, there is no doubt that the presidency is the
more nationalist branch of government and the Congress is the more pro-State
power branch. Presidents are elected nationwide and serve a national
constituency, while congressmen and senators serve state and local
constituencies. Thus, Rehnquist's strong pro-state bias may further incline him
toward pro-Congress decisions on the High Court.
It is my opinion from serving as a Supreme Court law clerk that Rehnquist is
aware of the fact that he is less pro-separation of powers than either his
predecessor Chief Justice Warren Burger or Justice Scalia. I was present at
Rehnquist's dedication of the bust of his predecessor Warren Burger at a large
ceremony held in the great hall of the Court. In his remarks at that ceremony,
Rehnquist said that his predecessor would be remembered as a great exponent of
the separation of powers, and he said this in a way that made me think as a law
clerk that he did not consider himself to be an exponent of the separation of
powers to the same degree. That, I think, has turned out to be true. The reason
why there has been less of a separation of powers revolution on the Rehnquist
Court is that the two leading figures on that Court, Rehnquist and Scalia, are
divided as to their allegiances in separation of powers cases. Rehnquist is
destined to be forever pro-Congress while Scalia is pro-president.
This then brings me to my final point of disagreement with Professor
Magill's paper and that is with her assertion that nothing has happened in the
separation of powers area on the Rehnquist Court. I disagree with this
assertion and would point to two revolutionary developments in separation of
powers case law during the Rehnquist years. While I agree with Professor Magill
that these two developments are not as big a revolution as has occurred in the
federalism area, I still think they are revolutionary developments that portend
the ending of the post-1937 New Deal settlement.
The first development of revolutionary significance on the Rehnquist Court
is the development of Chevron deference in administrative law cases. n36 While
this development may have as much to do with the way the D.C. Circuit has read
Chevron as with what the Court said in that case, it is [*85] nonetheless true
that the Rehnquist years have seen a consolidation in Chevron deference to
agencies on how to interpret the statutes they are enforcing. This deference
has moved power from courts to agencies and so it is another core separation of
powers development in which the judiciary has not aggrandized itself. It is
fair to say that Justice Scalia has been a proponent of Chevron deference and,
by and large, he has gotten his way on this issue when the High Court has
The second and even more revolutionary separation of powers decision of the
Rehnquist Court is Clinton v. City of New York, n37 a case which Magill
discusses but the importance of which she somewhat understates. n38 In this
case, a six-to-three majority of the Court struck down the line item veto
statute, which purported to delegate to the president power to cancel lines of
spending on the ground that those presidential acts of cancellation were really
repeals which had to be accomplished through bicameralism and presentment. My
view of Clinton v. City of New York is that it is in reality a non-delegation
doctrine case masquerading as a bicameralism and presentment case. I think it
is the hidden separation of powers blockbuster of the Rehnquist years, as
important to separation of powers case law as Lopez is to the Court's
federalism case law. In saying this, I must immediately acknowledge that the
Court denied in Clinton v. City of New York that it was deciding that case on a
non-delegation rationale. The Court's mere denial however cannot avoid the fact
that Clinton really was a non-delegation decision. Saying that it wasn't is not
enough to make that so.
Justices Scalia, Breyer, and O'Connor seem to recognize the revolutionary
significance of Clinton v. City of New York in their dissents to that case.
Scalia clearly views the decision as an unprecedented application of the
nondelegation doctrine, a doctrine he vigorously opposes on the separation of
powers ground that there is no bright line the Court can draw as to how much of
a delegation is too much. Scalia not only dissents in Clinton v. City of New
York, he actually dissents from the bench, thus repeating in oral remarks his
reasons for dissenting. Scalia reserves for unusual occasions the decision to
dissent from the bench so the fact he employs that technique in this case
suggests the importance he attaches to it.
First, one might ask why is Clinton v. City of New York a nondelegation
case? The answer is that the Court describes the case as involving the granting
of an impermissible amount of power to the president - power which the Court
says can only be exercised with bicameralism and presentment. This is the exact
language of the nondelegation doctrine. When the old pre-Roosevelt Court struck
down two delegations of power by Congress to the executive, what the Court was
saying was that the actions those statutes delegated gave power to the
executive so important that such action [*86] had to be done with bicameralism
and presentment. Schechter Poultry n39 and Carter Coal n40 were thus not only
nondelegation doctrine cases, they were also, in the words of Clinton v. City
of New York, bicameralism and presentment cases. The fact of the matter is that
the antecedents to Clinton v. City of New York are Schechter Poultry and Carter
Coal. This case was as big a deal as its pre-New Deal predecessors.
Second, Clinton v. City of New York involved a statute as important as the
National Industrial Recovery Act, which the Court struck down in Schechter
Poultry. Just as that statute was the key legislative enactment of the New Deal
political movement, the Line Item Veto Act was the key legislative enactment of
the Newt Gingrich Republican Congress. Both statutes involved a major cession
of power by Congress to the executive branch and both statutes were struck down
in what are in essence nondelegation doctrine decisions by the Supreme Court.
Why did everyone miss the fact that Clinton v. City of New York was the
blockbuster separation of powers case of the Rehnquist years? Why was it not
immediately recognized as this Court's separation of powers Lopez? The answer
is that people missed the significance of the case partly because Scalia's
dissent confused them as to what the conservative position in the case was and
partly because the Court modestly styled its decision as a bicameralism and
presentment case denying that it was the nondelegation doctrine decision it
Does this more modest styling of the decision limit the case's substantive
impact? Probably a little bit. It is fair to conclude that the Court called its
decision a bicameralism and presentment case rather than a nondelegation
doctrine case because the Court did not intend to hand down decisions of this
kind every year. The Court probably wanted to strike down the Line Item Veto
Act as an unusually broad delegation without calling into question the organic
statutes of all the alphabet soup post-New Deal administrative agencies.
But before we dismiss the revolutionary potential of Clinton v. City of New
York, one must remember that even the fearsome old Supreme Court struck down
only two statutes on nondelegation doctrine grounds. This has always been a
doctrine that the Court was willing to apply once in a generation but not on an
ongoing basis for year-in-and-year-out review of congressional legislative
court decisions. Clinton v. City of New York is this Court's Schechter Poultry
and unlike Lopez, the Chief actually got six votes for his position in the
separation of powers area compared to a usual five votes in the federalism
area. Best of all, from his perspective, the revolutionary nature of his
victory was totally missed because everyone was confused into missing it by
Justice Scalia's angry dissent from the bench.
What does the future hold with respect to separation of powers case law
versus federalism case law? I submit the two will rise and fall to some degree
together, but I think separation of powers case law is likely to do better over
the long run than federalism case law for the same reason it generally did
better during the years between 1937 and 1986. The Court is basically
pro-national power but it is divided between Justices who are pro-Congress and
those who are pro-President. Probably the biggest change in the Court's
separation of powers case law is likely to come from the fact that, more and
more, the Court is reflecting the politics of the distant past. Historically,
vacancies on the High Court used to arise once every two years which meant that
at any given point in time a president usually had some sympathetic Justices
who he had appointed on the Court to hear a case in which his Administration
was involved. Today, we live in a world where ten years have gone by since the
last vacancy on the Supreme Court and we have a president, George W. Bush, who
has not appointed a single Justice. I submit that in this new era where the
Justices are staying longer and where more years are passing between vacancies,
the Court is more likely to be pro-Congress and anti-the incumbent President.
In that respect, too, then big pro-Congress separation of powers rulings like
Youngstown and Clinton v. City of New York are what we should expect. It is
thus probably no surprise that the Bush Administration did not fare especially
well in the three 2004 decisions in the War Against Terrorism Cases.
n1. M. Elizabeth Magill, The Revolution that Wasn't, 99 Nw. U. L. Rev. 47
n2. Id. at 55-56.
n3. Id. at 56-60.
n4. Id. at 49-55.
n5. 514 U.S. 549 (1995).
n6. 529 U.S. 598 (2000).
n7. 521 U.S. 507 (1997).
n8. 505 U.S. 144 (1992).
n9. 521 U.S. 898 (1997).
n10. 517 U.S. 44 (1996).
n11. Magill, supra note 1, at 54-55.
n12. Id. at 55.
n13. Id. at 55-56.
n14. 343 U.S. 579 (1952).
n15. 395 U.S. 486 (1969).
n16. United States v. Nixon, 418 U.S. 683 (1974).
n17. 400 U.S. 112 (1970).
n18. 424 U.S. 1 (1976).
n19. 426 U.S. 833 (1976).
n20. 462 U.S. 919 (1983).
n21. 458 U.S. 50 (1982).
n22. 453 U.S. 654 (1981).
n23. 478 U.S. 714 (1986).
n24. 469 U.S. 528 (1985).
n25. 401 U.S. 37 (1971).
n26. Magill, supra note 1, at 55.
n27. U.S. Const. amend. XVII.
n28. 247 U.S. 251 (1918).
n29. Magill, supra note 1, at 56-60.
n30. 478 U.S. 833 (1986).
n31. 392 U.S. 83 (1968).
n32. Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 430
U.S. 442 (1977).
n33. Magill, supra note 1, at 48-49.
n34. 487 U.S. 654 (1988).
n35. Mistretta v. United States, 488 U.S. 361 (1989).
n36. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
n37. 524 U.S. 417 (1998).
n38. Magill, supra note 1, at 49.
n39. 295 U.S. 495 (1935).
n40. 298 U.S. 238 (1936).
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