And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
This is the 13th installment of a new series on the U.S. Constitution and the Bill of Rights. For more on the Constitution, you can check out my earlier episodes on the Legal Lad Constitution page at quickanddirtytips.com, as well as my new book, The Naked Constitution: What the Founders Said, and Why it Still Matters.
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Checks and Balances
In a previous episode of this series, we saw how the Constitution’s framers divided government power between the state and federal governments. In this episode, we look at the division of government power among different branches of government. The Constitution creates a system of three separate branches of government: legislative (Article I), executive (Article II), and judicial (Article III). The Founding Fathers were deeply influenced by political philosophers such as Montesquieu who believed that dividing power results in checks and balances that protect individuals against potential government abuses.
Congress vs. The Executive Branch
As with many areas of constitutional law, the devil is in the details. For example, there is sometimes a fuzzy line between the legislative function of enacting laws and the executive function of implementing laws. At times, Congress will pass legislation that is purposely vague, leaving it up to the executive branch to write up detailed (and often unpopular) regulations. Under the non-delegation doctrine (articulated by the Supreme Court in J.W. Hampton, Jr., & Co. v. United States (1928)), Congress cannot delegate its legislative duties to the executive. Instead, Congress’s legislation must provide federal agencies with an “intelligible principle” upon which to base regulations. In practice, Courts rarely, if ever, strike down legislation as a violation of this doctrine. Many federal agencies operate today under very broad mandates from Congress.
The Unitary Executive vs. Independent Agencies
Article II of the Constitution states that “the executive power shall be vested in a President of the United States of America.” Under a doctrine known as the “unitary executive,” Article II is understood to mean that the president must be able to exercise control over all officials responsible for carrying out federal law. The president has express authority to appoint federal officials, and it was originally assumed that the president also has implicit power to fire federal officials.
Over the years, however, Congress developed different ideas. Beginning in the early 20th century, Congress began creating administrative agencies whose officers were insulated from presidential control. In a 1935 decision known as Humphrey’s Executor v. United States, the Supreme Court upheld the power of Congress to create independent administrative agencies. According to the Court, such agencies need not be subject to presidential control because they are not purely executive in nature; but rather, “quasi legislative and quasi judicial.” The legacy of the Humphrey’s decision can be seen in much of the alphabet soup of federal agencies, such as the SEC, EPA, and FTC. Congress also has the power to appoint “independent counsels” to investigate and prosecute crimes—a typically executive function – which the Supreme Court upheld in 1988.
Meanwhile, various commentators accuse the courts themselves of violating separation of powers. The term “judicial activism” was coined in the 1940s to describe the philosophy of some of the New Deal-era justices. In a nutshell, activism involves judges usurping – or appearing to usurp – the rightful powers of the other branches. Judges who strike down laws passed by legislatures are often accused of “judicial legislation.” This is a criticism, by the way, that comes from both ends of the political spectrum, depending on the law being discussed. Indeed, judicial activism is sometimes referred to as a court striking down a law that you happen to like!
Courts have also been accused of invading the executive branch’s powers. Courts have an inherent power to impose what are known as “equitable remedies,” meaning that they can order people to do things or refrain from doing things. Using these powers, some federal courts have taken over the management of various government entities, such as schools, prisons, and housing authorities.
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