Appendix: The Constitutional Separation of Powers between the President and Congress

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This memorandum provides an overview of the constitutional issues that periodically arise concerning the relationship between the executive and legislative branches of the federal government. Although that relationship is shaped in part by the policy and political concerns of the President and Congress of the day, the political interaction between the President and Congress takes place within an enduring constitutional framework that confers powers and responsibilities on both elected branches. In this memorandum we discuss the general principles underlying separation of powers analysis, and we address certain specific questions that have arisen in the past. Any set of examples is necessarily illustrative rather than exhaustive, however, and the Office of Legal Counsel is always available to assist in reviewing legislation or other congressional action for potential separation of powers issues. [1]

I

GENERAL PRINCIPLES

The Constitution reflects a fundamental conviction that governmental "power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it." The Federalist No. 48, at 332 (James Madison) (Jacob E. Cooke ed., 1961), quoted in Metropolitan Washington Airports Auth. ("MWAA") v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 273 (1991). The founders, not content to rely on paper definitions of the rights secured to the people, "viewed the principle of separation of powers as a vital check against tyranny." Buckley v. Valeo, 424 U.S. 1, 121 (1976) (per curiam). In order to safeguard liberty, therefore, the Constitution creates three distinct branches of government--Congress, the President, and the federal judiciary--and assigns to them differing roles in the exercise of the government's powers. The resulting division of governmental authority is not a mere set of housekeeping rules indicating which branch presumptively performs which functions ; it is, rather, a fundamental means by which the Constitution attempts to ensure free, responsible, and democratic government. See MWAA, 501 U.S. at 272 ("The ultimate purpose of this separation of powers is to protect the liberty and security of the governed."). The constitutional separation of powers advances this central purpose by "assur[ing] full, vigorous, and open debate on the great issues affecting the people"; [2] by "placing both substantive and procedural limitations on each [branch]"; [3] and by maintaining a "system of ... checks and balances" among the three branches. [4]

Although the structure of the Constitution is designed to obviate the danger to liberty posed by each of the branches, [5] the founders were particularly concerned with the Congress's potential for improvident or overreaching action: "the tendency of republican governments is to an aggrandizement of the legislat[ure] at the expense of the other departments." The Federalist No. 49, at 315-16 (James Madison) (Clinton Rossiter ed., 1961), cited in United States v. Brown, 381 U.S. 437, 444 n.17 (1965). Many specific aspects of the Constitution's separation of governmental powers embody the founders' "profound conviction . . . that the powers conferred on Congress were the powers to be most carefully circumscribed" and the founders' recognition of the particular "'propensity"' of the legislative branch "'to invade the rights of the Executive."' INS v. Chadha, 462 U.S. 919, 947 (1983) (quoting The Federalist No. 73, at 442 (Alexander Hamilton) (Clinton Rossiter ed., 1961)). Executive branch lawyers thus have a con stitutional obligation, one grounded not in parochial institutional interests but in our fundamental duty to safeguard the liberty of the people, to assert and maintain the legitimate powers and privileges of the President against inadvertent or intentional congressional intrusion. As Attorney General William Mitcheli put it long ago:

Since the organization of the Government, Presidents have felt bound to insist upon the maintenance of the Executive functions unimpa[i]red by legislative encroachment, just as the legislative branch has felt bound to resist interferences with its power by the Executive. …