Select Page

Constitutional Law I
Villanova University School of Law
Brennan, Patrick McKinley




The Separation of Powers and Checks and Balances

1. Chapter 8: Separation OF Powers

1. Federal government has three branches: Legislature (Article I), Executive Power (Article II), and the Judicial Power (Article III)

2. Controversies of the last century have revealed a tension dealing with the separation of powers.

2. Separation of Powers v. Checks and Balances

1. Separation of Powers: the notion that all three branches shall be separate from each other shall concentrate on their respective function.

2. Checks and Balances: the notion that each of the three branches shall have some influence on how the other two branches perform their specialized roles.

2. Supreme court depends on the cooperation of other branches. The other branches have substantial control over the federal court system. (pg. 1052 paragraph 3)

3. Congress depends on the president to pass their bill before it becomes a law, and the Supreme Court has the power to deem a congressional bill as unconstitutional.

1. Execution and interpretation of the laws left to the executive and judicial branches.

4. Framers were well aware of the tension between the separation of powers and the system of checks and balances:

1. rather than resolve the problem, they sought to justify it.

2. Madison read these sources to suggest that the optimal protections of citizens’ liberty lay in a strategy combining separation of powers with checks and balances.

1. A system where different branches would have to cooperate was deemed more effective than a system where branches were simply competing with each other.

3. Ensuring Efficacy vs. Preventing Tyranny

1. main policy mentioned in ratification debates was the prevention of tyranny. Separation of powers strategies are a negative way of protecting against tyranny, by ensuring that circumstances do not unduly encourage it.

1. Separation of rule-making, rule executing, and rule-adjudicating branches of government gives citizens some protection from being persecuted unfairly.

1. Less danger of factional vendettas.

2. When Legislature enacts statutes, others enforce the statutes. 2 advantages:

1. Legislature will be more reluctant to pass unfair statutes.

2. If unfair laws are passed, they might be implemented in a way that limits their tyrannical nature.

2. Checks and balances strategies represent a more positive way of protecting against tyranny: by requiring the cooperation of more than a single branch to take action, it is more likely that the action will be reasonable and just.

1. Two policies, against tyranny and in favor of efficacy(the capacity to produce an effect) are sometimes in question.

2. Today we worry more about presidential tyranny than we worry about legilsative tyranny.

1. Constitution is vague about checks on executive branch and the judiciary.

4. Political vs. Judicial Enforcement of Separation of Powers:

1. It is not clear that Supreme court should have much of a role in deciding separation of powers disputes.

1. Commentators and judges remain deeply divided over the wisdom of judicial review for separation of powers issues.

1. The gravest danger to the separation of powers come in periods of emergency or alarm.—precisely the time when the political organs are least likely to resist.

5. Formalist vs. Functionalist Reasoning:

1. There a several different strategies the Court could take if it wants to police the Constitution’s boundaries:

1. ex. the court could strictly enforce the lines apparently drawn in the Constitution.

2. Constitutional Formalism: has the advantage of providing rules for national decision-making that the Court might find easy to discern and implement.

1. President is in charge of executive functions, and if he tries to make rather than execute laws he will be overruled.

2. Congress does all the legislating, and if it tries to meddle in executive functions it will be overruled.

3. The courts do all the adjudicating, and if they try to make policy they will be overruled.

1. Problem with Formalism: not always clear what boundaries and rules for federal government decision-making are embodied in the constitution.

3. Functionalist Approach: would sacrifice or soften some of the Constitutional lines to permit “necessary” government action unless such action generally threatens our freedoms.

1. Problem: it is not always clear what situations justify a departure from the apparent commands of the Constitution.

2. Whether the deviation from Constitutional lines long-term benefits outweigh its long-term costs, including the rule of law costs of occasional deviation from formal commands.

4. Hybrid Functional-Formalist: I

1. Courts can decide for formalist reasons that it will enforce some of the constitutional boundaries strictly

2. and, for equally functionalist reasons that it will relax other boundaries to accommodate government in the modern regulatory state,

3. or it could decide to enforce the textual boundaries and then add some functionalist restrictions of its own.

6. Horizontal (Functional) vs. Vertical (Political) Approaches:

1. Both theories approach the problem horizontally:

1. Which branch is vested with the authority to do something (formalist)?

2. Which branch is most capable of doing it(functionalist)?

2. Victoria Nourse also argues that we should approach the issues vertically: an example of representation-reinforcing theory of separation of powers.

1. Looks at constituencies and incentives.

1. President has a national constituency

2. Congress contains local and state constituencies.

7. Fixed vs. Evolving Rules:

1. Not only have events blurred some of the lines suggested by the Constitution, but they have motivated what might be considered major challenges in the constitutional balance.

1. Because many separation of powers issues are not justiciable, much of the evolution has occurred within the political process, with little or no input from the Supreme Court.

2. Cases in this chapter illustrate the allure of a constitutional rule of adverse possession:

1. If Congress has acquiesced in a presidential unsurpation of power over a period of years, that evidence significantly supports the constitutional acceptability of that practice once it reaches the Supreme Court.

8. Gerhard Casper: An Essay in Separation of Powers: Some Early Versions and Practices

9. Article VI of Maryland Declaration of Rights 1776:

1. “Legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other.”

2. Similar formulations appear elsewhere.

10. Use of phrase “separation of powers” in bills from various states recognizes a common linkage between the concept of liberty and the separation of powers.

11. Motesquieu:

1. “When the legislative and executive powers are united in the same person, or in the same body of magistracy, there can be then no liberty; because apprehension may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”

2. “Again, there is no liberty if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge may behave with the violence of an oppressor.”

3. Separation is a necessary, if not sufficient, condition of liberty. It’s absence promotes tyranny.

12. The most distinct feature of early constitutions was dependance of the executive on the legislative branch on four counts:

1. Only New York, New Hampshire, and Mass. Provided for the election of governors by voters.

2. Only Mass and NY recognized an overidable veto.

3. All states provided for or recognized some kind of executive or privy council.

4. States distributed the power of appointments in various ways, but legislative controls predominated.

13. State of NH emphasizes separation, coordination, and cooperation.

14. Hamilton: “recognized that the Confederation’s structure was contrary to the most approved and well founded maxims of free government which require that the legislative, executive, and judicial authorities should be deposited in distinct separate hands.”

15. The constitutional text itself, although implying the notion of distinct branches, did not invoke the separation of powers as principle.

Notes on Early Interactions Between the Branches of the National Government, 1790-1798

16. The leading players, early on, were framed by separation of powers ideas because their actions would set precedent for future leaders.

1. Decision of 1789: Consideration of a bill to create a Department of Foreign Affairs

1. Debate over who should have the power to remove the Head of that department from office.

2. St. Clair Investigation: Proposal that president should begin investigation into the st. clair disaster, but it was overruled and power was vested in the house to enact a committee.

17. Sometimes, there was a good deal of inter-branch communication:

1. Barbary Powers Situation: inter-branch mingling to deal with the issue at hand.

2. French Raid of Foreign American Commerce: Adams sought help from congress for funding of ships, etc. to engage in a quasi-war with the French.

18. Judicial Branch sometimes intermingled with the executive branch as well.

Section 1: The Issue of Executive Aggrandizement (The Imperial Presidency)

19. In the beginning, president Washington acted only with the advice of Congress, but later on he began acting more independently.

1. Especially in matter of military and foreign policy.

2. Even more true of his successors.

1. Louisiana Purchase

2. Monroe Doctrine

3. Mexican-American War

4. Civil War.

20. President has a huge “First Mover” advantage.

1. People actually voted for aggressive rather than passive presidential candidates.

21. Imperial Presidency became apparent in the Franklin D. Roosevelt era, during New Deal and WW2

22. Three different contexts where the Imperial Presidency has raised serious Constitutional Concerns:

1. President’s alleged unsurpation of legislative powers in domestic affairs.

2. President’s alleged unsurpation of legislative powers in foreign affairs.

3. President’s insistence that his office immunizes him from judicial process applicable to other citizens or even other federal officials.

23. Truman presidency presented the first two issues: Committed US to Korean War without a congressional declaration of war and, during the course of the war, seized the steel industry without congressional authorization.

24. Last issue was pressed by President Richard Nixon’s dramatic fall from power in 1974.

The General Post-New Deal Framework

Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952)(Black)

1. Facts: The Korean war effort increased the demand for steel. Disputes arose between steel industry management and labor that culminated in an announcement of a strike by the union. President Truman authorized Secretary of Commerce Sawyer to take possession of the steel industry and keep the mills operating.

2. Issue Does the President of the United States have executive power under the war powers clause of the U.S. Constitution, or any implied powers gleaned therefrom, to authorize the Secretary of Commerce to seize the nation’s steel mills?

3. Holding and Rule (Black): No. The President does not have implicit or explicit executive power under the war powers clause of the U.S. Constitution, or any implied powers gleaned therefrom, to authorize the Secretary of Commerce to seize the nation’s steel mills.

1. The court held that there was no explicit statute or act of Congress which authorized the President to act in such a manner. The only two statutes which authorized the acquisition of personal and real property were not met here. Not only were such acts unauthorized, Congress specifically refused to grant such authorization. The court held that in order for the President to have this authority, it must be found somewhere explicitly in the Constitution, or implicitly in some historical context or foundation.

2. The President cannot order policy; he can only suggest it. Congress can approve any proposal for regulation, policy, settlement of disputes, wages, and working conditions. None of this is delegated to the President. Under a textual approach to interpreting the Con

the road are found in Vehicle Code Section 1204, et seq.”

B. Notes on the War Powers Resolution – Is it constitutional

Topic Notes:

Scholars are divided as to whether the President has constitutional authority to defend the US preemptively (attacking opponents before they can attack us). They compare:

(1) Deliberations at the Philadelphia Convention, where the delegates were thinking in a functional, institutionalist way. They wanted the President to be able to respond quickly and not have his hands tied in those situations.

(2) Deliberations at the Ratification Debates, where one representative favored Congressional war making power.

(3) Practice and Precedent: Washington and Adams administrations conducted hostilities without consulting Congress, but did consult with it upon sending troops; the quasi-war with France resulted in the no consultation before sending troops; Civil War consisted of no Congressional consultation

30. Dames & Moore v. Regan (1981): a suit by parties suing Iran were barred by a joint agreement between nations; parties were referred to a US-Iran Tribunal. Rehnquist used Jackson’s concurring opinion in the Steel Seizure case to provide the framework for the reasoning of why the case would not be tried after the agreement was made. Powell dissented b/c he thought under the 5th amendment, the parties were due just compensation.


1. Hamdi v. Rumsfeld (2004)(O’Connor)

2. Synopsis of Rule of Law. “Because it is undisputed that Hamdi was capture in a zone of active combat in a foreign theater of conflict, the submitted declaration is a sufficient basis upon which to conclude that the Commander in Chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the United States Constitution.”

3. Facts. Congress passed Authorization for Use of Military Force (AUMF). Petitioner Hamdi was captured in Afghanistan shortly after 9/11. Hamdi is an American citizen, and was classified as an “enemy combatant.” After a period of petitions, motions, and counter-motions, Hamdi filed for a writ of habeas corpus. The Special Advisor to the Under Secretary of Defense for Policy, Michael Mobbs, issued a response, outlining the Government’s position. The district court found the “Mobbs declaration” insufficient in supporting the Government’s case.

4. Issue. (1) Does the federal government have the authority to detain american citizens indefinitely without a criminal charge or a congressional suspension of habeus? () Whether the Executive has the authority to detain citizens who qualify as “enemy combatants?” “Whether a declaration by a Special Advisor to the Under Secretary of Defense for Policy setting forth what the government contends were the circumstances of Hamdi’s capture was sufficient by itself to justify his detention.” (3) What, if any, process must the Court afford to detained citizens who dispute their combatant status, like Hamdi?

5. Held. Yes. First, the Court of Appeals for the Fourth Circuit acknowledged that the Constitution creates “war powers” that invest “the President, as Commander in Chief, with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conducts of war…” The Court also noted that since Article III of the Constitution does not have any sort of war powers analog, “the Supreme Court has shown great deference to the political branches” in war matters. However, the Court noted that this deference is “not unlimited,” and that habeas corpus is still valid. The Court found that is must approach this case by balancing the tension of individual rights and national security interests.

1. The federal gov does not have the power to detain without criminal process of habeas suspension.

2. (prohibited detaining of a citizen unless pursuant to an act of Congress) Congress’s Authorization for Use of Military Force that was passed pursuant to September 11

3. On Issue 2, the Court ruled that Hamdi was entitled to Due Process at least to have his habeus corpus petition heard in federal court. The procedures required are to be determined by the three part balancing test in Mathews v. Eldridge which instructs courts to weigh (1) the importance of the interest to the individual, (2) the ability of additional procedures to to reduce the risk of an erroneous deprivation, (3) and the government’s interests.

1. Dissent (Scalia): disagreed with the plurality’s Mr. Fix It mentality and would not balance away citizens rights.

4. The Court rejected Hamdi’s assertion that 18 U.S.C. § 4001 prohibited his incarceration, in light of the broad authorization Congress granted the President post 9/11.

5. The Court rejected Hamdi’s assertion of the Geneva Convention because it is not self-executing and does not “create private rights of action in the domestic courts of the signatory countries.”

6. The Court rejected Hamdi’s petition as a matter of law because the order required substantial factual information from the government. The Court found that impossible because of security concerns, and the impracticality of demanding factual analysis during battle.