Black's Law Dictionary,
Sixth Edition, p. 1365:
"Separation of powers. The governments of the states and
the United States are divided into three departments or branches: the
legislative, which is empowered to make laws, the executive which is
required to carry out the laws, and the judicial which is charged with
interpreting the laws and adjudicating disputes under the laws.
Under this constitutional doctrine of "separation of powers," one branch
is not permitted to encroach on the domain or exercise the powers of
another branch. See U.S. Constitution, Articles I-III. See
also Power (Constitutional Powers)."
[Black's Law Dictionary, Sixth Edition, p. 1365]
“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression [sound familiar?].
There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”
[. . .]
In what a situation must the poor subject be in those republics! The same body of magistrates are possessed, as executors of the laws, of the whole power they have given themselves in quality of legislators. They may plunder the state by their general determinations; and as they have likewise the judiciary power in their hands, every private citizen may be ruined by their particular decisions.”
[The Spirit of Laws, Charles de Montesquieu, Book XI, Section 6, 1758;
SOURCE: http://famguardian.org\Publications\SpiritOfLaws\sol_11.htm]
The foundation of our
republican form of government
is the notion of "separation of powers". In the legal field, this
is called "the separation of powers doctrine". The U.S. Supreme
Court confirmed the purpose of the separation of powers doctrine
in the case of U.S. v. Lopez;
514 U.S. 549 (1995): :
We start with first principles. The Constitution creates a Federal
Government of enumerated powers. See U.S. Const., Art.
I, 8. As James Madison wrote, "[t]he powers delegated by the proposed
Constitution to the federal government are few and defined.
Those which are to remain in the State governments are numerous
and indefinite." The Federalist No. 45, pp. 292-293 (C. Rossiter
ed. 1961). This constitutionally mandated division
of authority "was adopted by the Framers to ensure
protection of our fundamental liberties." Gregory v. Ashcroft, 501
U.S. 452, 458 (1991) (internal quotation marks omitted). "Just as
the separation and independence of the coordinate
branches of the Federal Government serves to prevent the accumulation
of excessive power in any one branch, a healthy balance
of power between the States and the Federal Government will reduce
the risk of tyranny and abuse from either front."
Ibid.
The founders believed that men were
inherently corrupt. They believed that where power concentrates,
so does tyranny. To prevent tyranny, they separated our government
in two distinct ways:
1. State v. Federal separation.
2. Separation of powers within the above two distinct governments:
2.1. Executive
2.2. Legislative
2.3. Judicial
They put the states
in competition with each other for citizens and commerce, so that
when one state became two oppressive by having taxes that were too
high or too many laws, people would move to a better state where
they had more freedom and lower taxes. This would ensure that the
states that were most oppressive would have the fewest citizens
and the worst economy. They also put the federal government in charge
of foreign commerce only, so that the only way it could increase
its revenues was to promote, not discourage or restrict, commerce
with foreign nations. If the taxes on foreign commerce were too
high, people would simply buy more domestic goods and the federal
government would shrink. It was naturally self-balancing.
The founders also put branches within
each government in competition with each other: Executive, Legislative,
and Judicial. They ensured that each branch had distinct functions
that could not be delegated to another branch of government.
Each branch would then jealously guard its power and jurisdiction
to ensure that it was not invaded or undermined by the other branch.
This ensured that there would always be a balance of powers so that
the system was self-regulating and the balance of powers would be
maintained.
Thomas Jefferson, one of our most
important founding fathers, confirmed the purpose of the separation
of powers between state and federal governments. He confirmed
that the purpose of the federal government was to regulate commerce
and interaction with foreign countries and that it never
had the authority or jurisdiction to invade within states,
either through legislation or through police powers:
"The extent of our country was so great, and its former division
into distinct States so established, that we thought
it better to confederate [U.S. government] as to foreign affairs
only. Every State retained its self- government
in domestic matters, as better qualified to direct them to the good
and satisfaction of their citizens, than a general government so
distant from its remoter citizens and so little familiar with the
local peculiarities of the different parts."
--Thomas Jefferson to A. Coray, 1823. ME 15:483
"I believe the States can best govern our home concerns, and
the General Government our foreign ones." -- Thomas
Jefferson to William Johnson, 1823. ME 15:450
"My general plan [for the federal government] would be, to
make the States one as to everything connected with
foreign nations, and several as to everything purely domestic."
--Thomas Jefferson to Edward Carrington, 1787. ME 6:227
"Distinct States, amalgamated into one as to their foreign
concerns, but single and independent as to their internal
administration, regularly organized with a legislature
and governor resting on the choice of the people and enlightened
by a free press, can never be so fascinated by the arts of one man
as to submit voluntarily to his usurpation. Nor can they be constrained
to it by any force he can possess. While that may paralyze the single
State in which it happens to be encamped, [the] others, spread over
a country of two thousand miles diameter, rise up on every side,
ready organized for deliberation by a constitutional legislature
and for action by their governor, constitutionally the commander
of the militia of the State, that is to say, of every man in it
able to bear arms." --Thomas Jefferson to A. L. C. Destutt de Tracy,
1811. ME 13:19
You can read the above quotes from
Thomas Jefferson on our website at:
http://famguardian.org/Subjects/Politics/ThomasJefferson/jeff1050.htm
The interesting thing to note about
the above quotes from Jefferson, is that our system of federal taxation
is entirely consistent with the above statements. For instance,
Article 1, Section 8, Clause 3 of the U.S. Constitution limits federal
taxation powers to commerce with foreign nations and between, but
not within, states. 26 CFR § 1.861-8(f) also reveals that the only
specific sources of "gross income" that are taxable under Subtitle
A of the Internal Revenue Code are those associated with Domestic
International Sales Corporations (DISC) and Foreign Sales Corporations
(FSCs), both of whom are involved in commerce with foreign countries
only.
Those federal politicians, legislators,
and judges intent on becoming tyrants or expanding their power must
break down the separation of powers established by the founders
above if they want to concentrate power or take away powers from
the states. They have done this over the years mainly by the following
means, which we devote nearly the entirety of this book to exposing
and explaining:
1. Confusing the definitions of words to make the separation of
powers between state and federal unclear. For instance:
1.1. Confusing the definitions of "state" and "State".
1.2. Confusing the definition of "United States"
1.3. Not defining the word "foreign" in the Internal Revenue Code
2. Obfuscating the distinctions between "U.S. citizen" and "U.S.
national" status. "U.S. citizens" were born in the federal
United States while "U.S. nationals" were born in states of the
Union.
3. Refusing to acknowledge or recognize the limits of federal jurisdiction
within federal courtrooms.
4. Suppressing any evidence or debate in courtrooms on the nature
of separation of powers.
5. Using the proceeds of extorted or illegally-collected federal
income tax revenues to break down the separation of powers
between states and the federal government. For instance, depriving
states of federal revenues who do not do what the federal government
wants them to do. This is called "privilege-induced slavery". We
explain later in section 6.1 that this kind of artifice has been
thoroughly exploited to create a de facto government that is completely
at odds with the de jure separation of powers required by our Constitution.
6. Discrediting and slandering legal professionals who bring attention
to the separation of powers between state and federal jurisdiction
by calling them "frivolous" or "incompetent" and/or pulling their
license to practice law. The framing of Congressman Traficant and
Congressman George Hansen are examples of this kind of political
persecution by abusing the legal system as a tool of persecution.
7. Paying people in the legal publishing business to obfuscate the
definitions of words. We show later in section 6.8 several instances
of such corruption.
8. Making the laws found in the U.S. Code so confusing that the
average American can’t rely on his own understanding of them to
know what the law requires. Instead, he must compelled to rely on
a high-paid expert, such as a judge or lawyer, both of whom have
a conflict of interest in expanding their power, to say what the
law really requires. This transforms our society from a "society
of laws and not men" into a "society of men".
The United States proposes three
alternative views of the constitutional line separating state and
federal authority. While each view concedes that Congress generally
may not compel state governments to regulate pursuant to federal
direction, each purports to find a limited domain in which such
coercion is permitted by the Constitution.
First, the United States argues that
the Constitution's prohibition of congressional directives to state
governments can be overcome where the federal interest is sufficiently
important to justify state submission. This argument contains a
kernel of truth: in determining whether the Tenth Amendment limits
the ability of Congress to subject state governments to generally
applicable laws, the Court has, in some cases, stated that it will
evaluate the strength of federal interests in light of the degree
to which such laws would prevent the State from functioning as a
sovereign; that is, the extent to which such generally applicable
laws would impede a state government's responsibility to represent
and be accountable to the citizens of the State. See, e.g., EEOC
v. [505 U.S. 144, 178] Wyoming,
460 U.S., at 242 , n. 17; Transportation Union v. Long Island
R. Co.,
455 U.S., at 684 , n. 9; National League of Cities v. Usery,
426 U.S., at 853 . The Court has more recently departed from
this approach. See, e.g., South Carolina v. Baker,
485 U.S., at 512 -513; Garcia v. San Antonio Metropolitan Transit
Authority,
469 U.S., at 556 -557. But whether or not a particularly strong
federal interest enables Congress to bring state governments within
the orbit of generally applicable federal regulation, no Member
of the Court has ever suggested that such a federal interest would
enable Congress to command a state government to enact state regulation.
No matter how powerful the federal interest involved, the Constitution
simply does not give Congress the authority to require the States
to regulate. The Constitution instead gives Congress the authority
to regulate matters directly, and to pre-empt contrary state regulation.
Where a federal interest is sufficiently strong to cause Congress
to legislate, it must do so directly; it may not conscript state
governments as its agents.
Second, the United States argues
that the Constitution does, in some circumstances, permit federal
directives to state governments. Various cases are cited for this
proposition, but none support it. Some of these cases discuss the
well established power of Congress to pass laws enforceable in state
courts. See Testa v. Katt,
330 U.S. 386 (1947); Palmore v. United States,
411 U.S. 389, 402 (1973); see also Second Employers' Liability
Cases,
223 U.S. 1, 57 (1912); Claflin v. Houseman,
93 U.S. 130, 136 -137 (1876). These cases involve no more than
an application of the Supremacy Clause's provision that federal
law "shall be the supreme Law of the Land," enforceable in every
State. More to the point, all involve congressional regulation of
individuals, not congressional requirements that States regulate.
Federal statutes enforceable in state courts do, in a sense, direct
state judges to enforce them, but this sort of federal "direction"
of state judges is mandated by the text of the Supremacy [505 U.S.
144, 179] Clause. No comparable constitutional provision
authorizes Congress to command state legislatures to legislate.
Additional cases cited by the United
States discuss the power of federal courts to order state officials
to comply with federal law. See Puerto Rico v. Branstad,
483 U.S. 219, 228 (1987); Washington v. Washington State Commercial
Passenger Fishing Vessel Assn.,
443 U.S. 658, 695 (1979); Illinois v. City of Milwaukee,
406 U.S. 91, 106 -108 (1972); see also Cooper v. Aaron,
358 U.S. 1, 18 -19 (1958); Brown v. Board of Education,
349 U.S. 294, 300 (1955); Ex parte Young,
209 U.S. 123, 155 -156 (1908). Again, however, the text of the
Constitution plainly confers this authority on the federal courts,
the "judicial Power" of which "shall extend to all Cases, in Law
and Equity, arising under this Constitution, [and] the Laws of the
United States . . .; [and] to Controversies between two or more
States; [and] between a State and Citizens of another State." U.S.
Const., Art. III, 2. The Constitution contains no analogous grant
of authority to Congress. Moreover, the Supremacy Clause makes federal
law paramount over the contrary positions of state officials; the
power of federal courts to enforce federal law thus presupposes
some authority to order state officials to comply. See Puerto Rico
v. Branstad, supra, at 227-228 (overruling Kentucky v. Dennison,
24 How. 66 (1861)).
In sum, the cases relied upon by
the United States hold only that federal law is enforceable in state
courts, and that federal courts may, in proper circumstances, order
state officials to comply with federal law, propositions that by
no means imply any authority on the part of Congress to mandate
state regulation.
Third, the United States, supported
by the three sited regional compacts as amici, argues that the Constitution
envisions a role for Congress as an arbiter of interstate disputes.
The United States observes that federal courts, and this Court in
particular, have frequently resolved conflicts among States. See,
e.g., Arkansas v. Oklahoma,
503 U.S. 91 [505 U.S. 144, 180] (1992); Wyoming
v. Oklahoma,
502 U.S. 437 (1992). Many of these disputes have involved the
allocation of shared resources among the States, a category perhaps
broad enough to encompass the allocation of scarce disposal space
for radioactive waste. See, e.g., Colorado v. New Mexico,
459 U.S. 176 (1982); Arizona v. California,
373 U.S. 546 (1963). The United States suggests that, if the
Court may resolve such interstate disputes, Congress can surely
do the same under the Commerce Clause. The regional compacts support
this argument with a series of quotations from The Federalist and
other contemporaneous documents, which the compacts contend demonstrate
that the Framers established a strong National Legislature for the
purpose of resolving trade disputes among the States. Brief for
Rocky Mountain Low-Level Radioactive Waste Compact et al. as Amici
Curiae 17, and n. 16.
While the Framers no doubt endowed
Congress with the power to regulate interstate commerce in order
to avoid further instances of the interstate trade disputes that
were common under the Articles of Confederation, the Framers did
not intend that Congress should exercise that power through the
mechanism of mandating state regulation. The Constitution established
Congress as "a superintending authority over the reciprocal trade"
among the States, The Federalist No. 42, p. 268 (C. Rossiter ed.
1961), by empowering Congress to regulate that trade directly, not
by authorizing Congress to issue trade-related orders to state governments.
As Madison and Hamilton explained, "a sovereignty over sovereigns,
a government over governments, a legislation for communities, as
contradistinguished from individuals, as it is a solecism in theory,
so in practice it is subversive of the order and ends of civil polity."
Id., No. 20, at 138.
B
The sited state respondents focus
their attention on the process by which the Act was formulated.
They correctly [505 U.S. 144, 181] observe that public
officials representing the State of New York lent their support
to the Act's enactment. A Deputy Commissioner of the State's Energy
Office testified in favor of the Act. See Low-Level Waste Legislation:
Hearings on H.R. 862, H.R. 1046, H.R. 1083, and H.R. 1267 before
the Subcommittee on Energy and the Environment of the House Committee
on Interior and Insular Affairs, 99th Cong., 1st Sess., 97-98, 190-199
(1985) (testimony of Charles Guinn). Senator Moynihan of New York
spoke in support of the Act on the floor of the Senate. 131 Cong.Rec.
38423 (1985). Respondents note that the Act embodies a bargain among
the sited and unsited States, a compromise to which New York was
a willing participant, and from which New York has reaped much benefit.
Respondents then pose what appears at first to be a troubling question:
how can a federal statute be found an unconstitutional infringement
of state sovereignty when state officials consented to the statute's
enactment?
The answer follows from an understanding
of the fundamental purpose served by our Government's federal structure.
The Constitution does not protect the sovereignty of States for
the benefit of the States or state governments as abstract political
entities, or even for the benefit of the public officials governing
the States. To the contrary,
the Constitution divides authority between federal and state governments
for the protection of individuals. State sovereignty is not just
an end in itself: "Rather, federalism secures to citizens the liberties
that derive from the diffusion of sovereign power." Coleman v. Thompson,
501 U.S. 722, 759 (1991)
(BLACKMUN, J., dissenting). "Just as the separation and independence
of the coordinate branches of the Federal Government serve to prevent
the accumulation of excessive power in any one branch, a healthy
balance of power between the States and the Federal Government will
reduce the risk of tyranny and abuse from either front." Gregory
v. [505 U.S. 144, 182] Ashcroft,
501 U.S., at 458 .
See The Federalist No. 51, p. 323. (C. Rossiter ed. 1961).
Where Congress exceeds
its authority relative to the States, therefore, the departure from
the constitutional plan cannot be ratified by the "consent" of state
officials. An analogy to the separation of powers among the branches
of the Federal Government clarifies this point. The Constitution's
division of power among the three branches is violated where one
branch invades the territory of another, whether or not the encroached-upon
branch approves the encroachment. In Buckley v. Valeo,
424 U.S. 1, 118 -137 (1976), for instance, the Court held that
Congress had infringed the President's appointment power, despite
the fact that the President himself had manifested his consent to
the statute that caused the infringement by signing it into law.
See National League of Cities v. Usery,
426 U.S., at 842 , n. 12. In INS v. Chadha,
462 U.S. 919, 944 -959 (1983), we held that the legislative
veto violated the constitutional requirement that legislation be
presented to the President, despite Presidents' approval of hundreds
of statutes containing a legislative veto provision. See id., at
944-945. The constitutional authority of Congress cannot be expanded
by the "consent" of the governmental unit whose domain is thereby
narrowed, whether that unit is the Executive Branch or the States.
State officials thus
cannot consent to the enlargement of the powers of Congress beyond
those enumerated in the Constitution. Indeed, the facts
of this case raise the possibility that powerful incentives might
lead both federal and state officials to view departures from the
federal structure to be in their personal interests. Most citizens
recognize the need for radioactive waste disposal sites, but few
want sites near their homes. As a result, while it would be well
within the authority of either federal or state officials to choose
where the disposal sites will be, it is likely to be in the political
interest of each individual official to avoid being held accountable
to the voters for the choice of location. If [505 U.S. 144, 183]
a federal official is faced with the alternatives of choosing a
location or directing the States to do it, the official may well
prefer the latter, as a means of shifting responsibility for the
eventual decision. If a state official is faced with the same set
of alternatives - choosing a location or having Congress direct
the choice of a location - the state official may also prefer the
latter, as it may permit the avoidance of personal responsibility.
The interests of public officials thus may not coincide with the
Constitution's intergovernmental allocation of authority. Where
state officials purport to submit to the direction of Congress in
this manner, federalism is hardly being advanced.
Nor does the State's prior support
for the Act estop it from asserting the Act's unconstitutionality.
While New York has received the benefit of the Act in the form of
a few more years of access to disposal sites in other States, New
York has never joined a regional radioactive waste compact. Any
estoppel implications that might flow from membership in a compact,
see West Virginia ex rel. Dyer v. Sims,
341 U.S. 22, 35 -36 (1951) (Jackson, J., concurring), thus do
not concern us here. The fact that the Act, like much federal legislation,
embodies a compromise among the States does not elevate the Act
(or the antecedent discussions among representatives of the States)
to the status of an interstate agreement requiring Congress' approval
under the Compact Clause. Cf. Holmes v. Jennison, 14 Pet. 540, 572
(1840) (plurality opinion). That a party collaborated with others
in seeking legislation has never been understood to estop the party
from challenging that legislation in subsequent litigation.
[New
York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d.
120 (1992)]
It may be stated then, as a general
rule inherent in the American constitutional system, that, unless
otherwise expressly provided or incidental to the powers conferred,
the Legislature cannot exercise either executive or judicial power;
the executive cannot exercise either legislative or [277 U.S. 189,
202] judicial power; the judiciary cannot exercise either
executive or legislative power. The existence in the various Constitutions
of occasional provisions expressly giving to one of the departments
powers which by their nature otherwise would fall within the general
scope of the authority of another department emphasizes, rather
than casts doubt upon, the generally inviolate character of this
basic rule.
[Springer
v. Government of the Philippines, 277 U.S. 189 (1928)]
The Constitution provides that "[a]ll
legislative Powers herein granted shall be vested in a Congress
of the United [500 U.S. 165] States." U.S.Const., Art. I, § 1. From
this language, the Court has derived the nondelegation doctrine:
that Congress may not constitutionally delegate its legislative
power to another Branch of government. "The nondelegation doctrine
is rooted in the principle of separation of powers that underlies
our tripartite system of Government." Mistretta v. United States,
488 U.S. 361, 371 (1989).
We have long recognized that the
nondelegation doctrine does not prevent Congress from seeking assistance,
within proper limits, from its coordinate Branches. Id. at 372.
Thus, Congress does not violate the Constitution merely because
it legislates in broad terms, leaving a certain degree of discretion
to executive or judicial actors. So long as Congress
lay[s] down by legislative act
an intelligible principle to which the person or body authorized
to [act] is directed to conform, such legislative action is
not a forbidden delegation of legislative power.
J.W. Hampton, Jr., & Co. v. United
States, 276 U.S. 394, 409 (1928).
[Touby v. United States, 500 U.S.
160(1991)]
The Government's second suggestion
- that judicial intervention in this case is unwarranted because
the case does not involve individual rights - reduces to the claim
that a person suing in his individual capacity has no direct interest
in our constitutional system of separation of powers, and thus has
no corresponding right to demand that the Judiciary ensure the integrity
of that system. This argument is simply irrelevant [495 U.S. 385,
394] to the political question doctrine. That doctrine
is designed to restrain the Judiciary from inappropriate interference
in the business of the other branches of Government; the identity
of the litigant is immaterial to the presence of these concerns
in a particular case. And we are unable to discern how, from the
perspective of interbranch relations, the asserted lack of connection
between Origination Clause claims and individual rights means that
adjudication of such claims would necessarily entail less respect
for the House than would judicial consideration of challenges based
on constitutional provisions more obviously tied to civil liberties.
Furthermore, and more fundamentally,
the Government's claim that compliance with the Origination Clause
is irrelevant to ensuring individual rights is in error.
This Court has repeatedly emphasized that "`the Constitution diffuses
power the better to secure liberty.'" Morrison, supra, at 694 (quoting
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 635 (1952) (Jackson, J., concurring)). See also
Morrison, supra, at 697 (SCALIA, J., dissenting) ("The Framers of
the Federal Constitution . . . viewed the principle of separation
of powers as the absolutely central guarantee of a just Government").
Recognizing this, the Court has repeatedly adjudicated separation-of-powers
claims brought by people acting in their individual capacities.
See, e. g., Mistretta, supra (adjudicating claim that United States
Sentencing Commission violates separation of powers on direct appeal
by an individual defendant who had been sentenced pursuant to guidelines
created by the Commission).
What the Court has said of the allocation
of powers among branches is no less true of such allocations within
the Legislative Branch. See, e. g., Chadha, supra, at 948-951 (bicameral
National Legislature essential to protect liberty); The Federalist
No. 63 (defending bicameral Congress on ground that each House will
keep the other in check). The Constitution allocates different powers
and responsibilities to the House and Senate. Compare, e. g., U.S.
Const., Art. II, [495 U.S. 385, 395] 2, cl. 2 (giving
Senate "Advice and Consent" power over treaties and appointment
of ambassadors, judges, and other officers of the United States),
with Art. I, 7, cl. 1 (stating that "[a]ll Bills for raising Revenue
shall originate in the House of Representatives"). The authors of
the Constitution divided such functions between the two Houses based
in part on their perceptions of the differing characteristics of
the entities. See The Federalist No. 58 (defending the decision
to give the origination power to the House on the ground that the
Chamber that is more accountable to the people should have the primary
role in raising revenue); The Federalist No. 64 (justifying advice
and consent function of the Senate on the ground that representatives
with longer terms would better serve complex national goals). At
base, though, the Framers' purpose was to protect individual rights.
As James Madison said in defense of that Clause: "This power over
the purse may, in fact, be regarded as the most complete and effectual
weapon with which any constitution can arm the immediate representatives
of the people, for obtaining a redress of every grievance, and for
carrying into effect every just and salutary measure." The Federalist
No. 58, p. 359 (C. Rossiter ed. 1961). Provisions for the separation
of powers within the Legislative Branch are thus not different in
kind from provisions concerning relations between the branches;
both sets of provisions safeguard liberty.
[United
States v. Munoz-Flores, 495 U.S. 385 (1990)]
Even before the birth of this country,
separation of powers was known to be a defense against tyranny.
Montesquieu, The Spirit of the Laws 151-152 (T. Nugent trans. 1949);
1 W. Blackstone, Commentaries *146-*147, *269-*270. Though faithful
to the precept that freedom is imperiled if the whole of legislative,
executive, and judicial power is in the same hands, The Federalist
No. 47, pp. 325-326 (J. Madison) (J. Cooke ed. 1961), the Framers
understood that a
hermetic sealing off of the three
branches of Government from one another would preclude the establishment
of a Nation capable of governing itself effectively,
Buckley v. Valeo, 424 U.S. 1, 120-121
(1976) (per curiam).
While the Constitution diffuses
power the better to secure liberty, it also contemplates that
practice will integrate the dispersed powers into a workable
government. It enjoins upon its branches separateness but interdependence,
autonomy but reciprocity.
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 635 (1952) (Jackson, J., concurring). [517 U.S. 757]
Although separation of powers "`d[oes]
not mean that these [three] departments ought to have no partial
agency in, or no controul over the acts of each other,'" Mistretta
v. United States, 488 U.S. 361, 380-381 (1989) (quoting The Federalist
No. 47, supra, at 325-326 (emphasis deleted)), it remains a basic
principle of our constitutional scheme that one branch of the Government
may not intrude upon the central prerogatives of another. See Plaut
v. Spendthrift Farms, 514 U.S. 211, 225-226 (1995) (Congress may
not revise judicial determinations by retroactive legislation reopening
judgments); Bowsher v. Synar, 478 U.S. 714, 726 (1986) (Congress
may not remove executive officers except by impeachment); INS v.
Chadha, 462 U.S. 919, 954-955 (1983) (Congress may not enact laws
without bicameral passage and presentment of the bill to the President);
United States v. Klein, 13 Wall. 128, 147 (1872) (Congress may not
deprive court of jurisdiction based on the outcome of a case or
undo a Presidential pardon). Even when a branch does not arrogate
power to itself, moreover, the separation of powers doctrine requires
that a branch not impair another in the performance of its constitutional
duties. Mistretta v. United States, supra, 397-408 (examining whether
statute requiring participation of Article III judges in the United
States Sentencing Commission threatened the integrity of the Judicial
Branch); Nixon v. Administrator of General Services, 433 U.S. 425,
445 (1977) (examining whether law requiring agency control of Presidential
papers disrupted the functioning of the Executive).
Deterrence of arbitrary or tyrannical
rule is not the sole reason for dispersing the federal power among
three branches, however. By allocating specific powers and responsibilities
to a branch fitted to the task, the Framers created a National Government
that is both effective and accountable. Article I's precise rules
of representation, member qualifications, bicameralism, and voting
procedure make Congress the branch most capable of responsive and
[517 U.S. 758] deliberative lawmaking. See Chadha, supra, at 951.
Ill-suited to that task are the Presidency, designed for the prompt
and faithful execution of the laws and its own legitimate powers,
and the Judiciary, a branch with tenure and authority independent
of direct electoral control. The clear assignment of power to a
branch, furthermore, allows the citizen to know who may be called
to answer for making, or not making, those delicate and necessary
decisions essential to governance.
Another strand of our separation
of powers jurisprudence, the delegation doctrine, has developed
to prevent Congress from forsaking its duties. Loving invokes this
doctrine to question the authority of the President to promulgate
RCM 1004. The fundamental precept of the delegation doctrine is
that the lawmaking function belongs to Congress, U.S.Const., Art.
I, § 1, and may not be conveyed to another branch or entity. Field
v. Clark, 143 U.S. 649, 692 (1892). This principle does not mean,
however, that only Congress can make a rule of prospective force.
To burden Congress with all federal rulemaking would divert that
branch from more pressing issues, and defeat the Framers' design
of a workable National Government. Thomas Jefferson observed, "Nothing
is so embarrassing nor so mischievous in a great assembly as the
details of execution." 5 Works of Thomas Jefferson 319 (P. Ford
ed. 1904) (Letter to E. Carrington, Aug. 4, 1787). See also A. L.
A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529-530
(1935) (recognizing "the necessity of adapting legislation to complex
conditions involving a host of details with which the national legislature
cannot deal directly"). This Court established long ago that Congress
must be permitted to delegate to others at least some authority
that it could exercise itself. Wayman v. Southard, 10 Wheat. 1,
42 (1825).
"The true distinction . . . is between
the delegation of power to make the law, which necessarily involves
a discretion as to what it shall be, and conferring authority [517
U.S. 759] or discretion as to its execution, to be exercised under
and in pursuance of the law. The first cannot be done; to the latter
no valid objection can be made."
Field, supra, at 693-694, quoting
Cincinnati, W. & Z. R. Co. v. Commissioners of Clinton County, 1
Ohio St. 77, 88-89 (1852).
[Loving
v. United States, 517 U.S. 748 (1996)]
In Europe, the Executive is almost
synonymous with the Sovereign power of a State; and, generally,
includes legislative and judicial authority. When, therefore, writers
speak of the sovereign, it is not necessarily in exclusion of the
judiciary; and it will often be found, that when the Executive affords
a remedy for any wrong, it is nothing more than by an exercise of
its judicial authority. Such is the condition of power in that quarter
of the world, where it is too commonly acquired by force, or fraud,
or both, and seldom by compact. In America, however, the case is
widely different. Our
government is founded upon compact. Sovereignty was, and is, in
the people. It was entrusted by them, as far as was necessary
for the purpose of forming a good government, to the Federal Convention;
and the Convention executed their trust, by effectually separating
the Legislative, Judicial, and Executive powers; which, in the contemplation
of our Constitution, are each a branch of the sovereignty.
The well-being of the
whole depends upon keeping each department within its limits.
In the State government, several instances have occurred where a
legislative act, has been rendered inoperative by a judicial decision,
that it was unconstitutional; and even under the Federal government
the judges, for the same reason, have refused to execute an act
of Congress. FN*
When, in short, either
branch of the government usurps that part of the sovereignty, which
the Constitution assigns to another branch, liberty ends, and tyranny
commences.
[The
Betsey, 3 U.S. 6 (1794)]
"The state governments, in their separate powers and independent sovereignties,
in their reserved powers, are just as much beyond the jurisdiction and
control of the National Government as the National Government in its
sovereignty is beyond the control and jurisdiction of the state government."
"...a State has the same
undeniable and unlimited jurisdiction over all persons and things within
its territorial limits, as any foreign nation..."
[Mayer,
etc. of the City of New York v. Miln., 36 U.S. 102, 11 Pet. 102, 9 L.Ed.
648 (1837)]
"No legislature can bargain away the public health or the public morals.
The people themselves cannot do it, much less their servants."
(See police power)
[New
Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 667 (1885)]
Syllabus of case
"The States between each other are sovereign and independent.
They are distinct and separate sovereignties, except so far as they
have parted with some of the attributes of sovereignty by the Constitution.
They continue to be nations,
with all their rights, and under all their national obligations, and
with all the rights of nations in every particular; except in the surrender
by each to the common purposes and objects of the Union, under the Constitution.
The rights of each State, when not so yielded up, remain absolute."
[Bank
of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 10 L.Ed. 274 (1839)]
“Such a statement presupposes that some functions of one branch may be performed by another branch without subverting the Constitution. That there is some interference between the branches does not undermine the separation of powers; rather, it gives vitality to the concept of checks and balances critical to our notion of democracy. The rise of the administrative agency in response to the increasing role of government in our society has raised new questions relating to the separation of powers. Because an administrative agency typically exercises many types of power, including some resembling that exercised by the legislative, judicial, and executive branches, a strict interpretation of the separation of powers doctrine would make the existence and functioning of such agencies nearly impossible. On the other hand, a too liberal interpretation could severely undermine the basis of our democratic system. Courts have often validated the exercise of power by administrative agencies by characterizing it as "quasi-judicial" or "quasi-legislative" and permitting a delegation of powers to an agency so long as it was accompanied by adequate standards to act as a check on agency activity. By so limiting the powers of agencies, separation of powers is to some extent maintained. Yet, we are still concerned that continual growth and expansion of these powers may result in a significant impingement on the judiciary branch.”
[Wulff v. Tax Court of Appeals, 288 N.W.2d. 221, 223 (Minn. 1979)]
The American development
of divided sovereign powers, which "shatter[ed] . . .
the categories of government that had dominated Western thinking
for centuries," id. at 385,
was made possible only
by a recognition that the ultimate sovereignty rests in the people
themselves. See id. at 530 (noting that because "none of these arguments
about `joint jurisdictions' and `coequal sovereignties' convincingly
refuted the Antifederalist doctrine of a supreme and indivisible
sovereignty," the Federalists could succeed only by emphasizing
that the supreme power "`resides in the PEOPLE, as the fountain
of government'" (citing 1 Pennsylvania and the Federal Constitution,
1787-1788, p. 302 (J. McMaster & F. Stone, eds. 1888) (quoting James
Wilson))).{45} The people possessing this plenary bundle of specific
powers [517 U.S. 152] were free to parcel them out to different
governments and different branches of the same government as they
saw fit. See McDonald, Novus Ordo Seclorum at 278. As
James Wilson emphasized, the location of ultimate sovereignty in
the People meant that
[t]hey can distribute one portion of power to the more contracted
circle called State governments; they can also furnish another proportion
to the government of the United States.
1 Pennsylvania and the Federal Constitution, 1787-1788, supra at
302.{46}
Under such a scheme, Alexander Hamilton explained,
[i]t does not follow . . . that each of the portions of powers delegated
to [the national or state government] is not sovereign with regard
to its proper objects.
Hamilton, Opinion on the Constitutionality of an Act to Establish
a Bank, in 8 Papers of Alexander Hamilton 98 (Syrett ed. 1965) (emphasis
in original).{47} A necessary consequence of this view was that
"the Government of the United States has sovereign power as to its
declared purposes & trusts." Ibid. Justice Iredell was to make the
same observation in his Chisholm dissent, commenting that
[t]he United States are sovereign as to all the powers of government
actually surrendered: each State in the Union is sovereign, as to
all the powers reserved.
2 Dall. at 434. And to the same point was Chief Justice Marshall's
[517 U.S. 153] description of the National and State Governments
as "each sovereign, with respect to the objects committed to it,
and neither sovereign with respect to the objects committed to the
other." McCulloch v. Maryland, 4 Wheat. 316, 410 (1819).
[Seminole
Tribe of Florida v. Florida, 517 U.S. 44 (1996), SOUTER,
Dissenting]
Under the Articles of Confederation
the National Government had the power to issue commands to the several
sovereign states, but it had no authority to govern individuals
directly. Thus, it raised an army and financed its operations by
issuing requisitions to the constituent members of the Confederacy,
rather than by creating federal agencies to draft soldiers or to
impose taxes.
That method of governing proved to
be unacceptable, not because it demeaned the sovereign character
of the several States, but rather because it was cumbersome and
inefficient. Indeed, a confederation that allows each of its members
to determine the ways and means of complying with an overriding
requisition is obviously more deferential to state sovereignty concerns
than a national government that uses its own agents to impose its
will directly on the citizenry. The basic change in the character
of the government that the Framers conceived was designed to enhance
the power of the national government, not to provide some new, unmentioned
immunity for state officers. Because indirect control over individual
citizens ("the only proper objects of government") was ineffective
under the Articles of Confederation, Alexander Hamilton explained
that "we must extend the authority of the Union to the persons of
the citizens." The Federalist No. 15, at 101 (emphasis added).
Indeed, the historical materials
strongly suggest that the Founders intended to enhance the capacity
of the federal government by empowering it--as a part of the new
authority to make demands directly on individual citizens--to act
through local officials. Hamilton made clear that the new Constitution,
"by extending the authority of the federal head to the individual
citizens of the several States, will enable the government to employ
the ordinary magistracy of each, in the execution of its laws."
The Federalist No. 27, at 180. Hamilton's meaning was unambiguous;
the federal government was to have the power to demand that local
officials implement national policy programs. As he went on to explain:
"It is easy to perceive that this will tend to destroy, in the common
apprehension, all distinction between the sources from which [the
state and federal governments] might proceed; and will give the
federal government the same advantage for securing a due obedience
to its authority which is enjoyed by the government of each State."
Ibid. 4
More specifically, during the debates
concerning the ratification of the Constitution, it was assumed
that state agents would act as tax collectors for the federal government.
Opponents of the Constitution had repeatedly expressed fears that
the new federal government's ability to impose taxes directly on
the citizenry would result in an overbearing presence of federal
tax collectors in the States. 5
Federalists rejoined that this problem would not arise because,
as Hamilton explained, "the United States . . . will make use of
the State officers and State regulations for collecting" certain
taxes. Id., No. 36, at 235. Similarly, Madison made clear that the
new central government's power to raise taxes directly from the
citizenry would "not be resorted to, except for supplemental purposes
of revenue . . . and that the eventual collection, under the immediate
authority of the Union, will generally be made by the officers .
. . appointed by the several States." Id.,No. 45, at 318.
6
The Court's response to this powerful
historical evidence is weak. The majority suggests that "none of
these statements necessarily implies . . . Congress could impose
these responsibilities without the consent of the States." Ante,
at 10-11 (emphasis omitted). No fair reading of these materials
can justify such an interpretation. As Hamilton explained, the power
of the government to act on "individual citizens"--including "employ[ing]
the ordinary magistracy" of the States--was an answer to the problems
faced by a central government that could act only directly "upon
the States in their political or collective capacities." The Federalist,
No. 27, at 179-180. The new Constitution would avoid this problem,
resulting in "a regular and peaceable execution of the law of the
Union." Ibid.
This point is made especially clear
in Hamilton's statement that "the legislatures, courts, and magistrates,
of the respective members, will be incorporated into the operations
of the national government as far as its just and constitutional
authority extends; and will be rendered auxiliary to the enforcement
of its laws." Ibid. (second emphasis added). It is hard to imagine
a more unequivocal statement that state judicial and executive branch
officials may be required to implement federal law where the National
Government acts within the scope of its affirmative powers.
7
The Court makes two unpersuasive
attempts to discount the force of this statement. First, according
to the majority, because Hamilton mentioned the Supremacy Clause
without specifically referring to any "congressional directive,"
the statement does not mean what it plainly says. Ante, at 12. But
the mere fact that the Supremacy Clause is the source of the obligation
of state officials to implement congressional directives does not
remotely suggest that they might be " `incorporat[ed] into the operations
of the national government' " before their obligations have been
defined by Congress. Federal law establishes policy for the States
just as firmly as laws enacted by state legislatures, but that does
not mean that state or federal officials must implement directives
that have not been specified in any law.
8 Second, the majority suggests
that interpreting this passage to mean what it says would conflict
with our decision in New York v. United States. Ante, at 12. But
since the New York opinion did not mention Federalist No. 27, it
does not affect either the relevance or the weight of the historical
evidence provided by No. 27 insofar as it relates to state courts
and magistrates.
Bereft of support in the history
of the founding, the Court rests its conclusion on the claim that
there is little evidence the National Government actually exercised
such a power in the early years of the Republic. See ante, at 5.
This reasoning is misguided in principle and in fact. While we have
indicated that the express consideration and resolution of difficult
constitutional issues by the First Congress in particular "provides
`contemporaneous and weighty evidence' of the Constitution's meaning
since many of [its] Members . . . `had taken part in framing that
instrument,' " Bowsher v. Synar,
478 U.S. 714, 723 -724 (1986) (quoting Marsh v. Chambers,
463 U.S. 783, 790 (1983)), we have never suggested that the
failure of the early Congresses to address the scope of federal
power in a particular area or to exercise a particular authority
was an argument against its existence. That position, if correct,
would undermine most of our post-New Deal Commerce Clause jurisprudence.
As Justice O'Connor quite properly noted in New York, "[t]he Federal
Government undertakes activities today that would have been unimaginable
to the Framers."
505 U.S., at 157 .
More importantly, the fact that Congress
did elect to rely on state judges and the clerks of state courts
to perform a variety of executive functions, see ante, at 5-6, is
surely evidence of a contemporary understanding that their status
as state officials did not immunize them from federal service. The
majority's description of these early statutes is both incomplete
and at times misleading.
For example, statutes of the early
Congresses required in mandatory terms that state judges and their
clerks perform various executive duties with respect to applications
for citizenship. The First Congress enacted a statute requiring
that the state courts consider such applications, specifying that
the state courts "shall administer" an oath of loyalty to the United
States, and that "the clerk of such court shall record such application."
Act of Mar. 26, 1790, ch. 3, §1, 1 Stat. 103 (emphasis added). Early
legislation passed by the Fifth Congress also imposed reporting
requirements relating to naturalization on court clerks, specifying
that failure to perform those duties would result in a fine. Act
of June 18, 1798, ch. 54, §2, 1 Stat. 567 (specifying that these
obligations %shall be the duty of the clerk" (emphasis added)).
Not long thereafter, the Seventh Congress mandated that state courts
maintain a registry of aliens seeking naturalization. Court clerks
were required to receive certain information from aliens, record
that data, and provide certificates to the aliens; the statute specified
fees to be received by local officials in compensation. Act of Apr.
14, 1802, ch. 28, §2, 2 Stat. 154-155 (specifying that these burdens
"shall be the duty of such clerk" including clerks "of a . . . state"
(emphasis added)). 9
Similarly, the First Congress enacted
legislation requiring state courts to serve, functionally, like
contemporary regulatory agencies in certifying the seaworthiness
of vessels. Act of July 20, 1790, ch. 29, §3, 1 Stat. 132-133. The
majority casts this as an adjudicative duty, ante, at 6, but that
characterization is misleading. The law provided that upon a complaint
raised by a ship's crew members, the state courts were (if no federal
court was proximately located) to appoint an investigative committee
of three persons "most skilful in maritime affairs" to report back.
On this basis, the judge was to determine whether the ship was fit
for its intended voyage. The statute sets forth, in essence, procedures
for an expert inquisitorial proceeding, supervised by a judge but
otherwise more characteristic of executive activity.
10
The Court assumes that the imposition
of such essentially executive duties on state judges and their clerks
sheds no light on the question whether executive officials might
have an immunity from federal obligations. Ante, at 6. Even assuming
that the enlistment of state judges in their judicial role for federal
purposes is irrelevant to the question whether executive officials
may be asked to perform the same function--a claim disputed below,
see infra, at 32--the majority's analysis is badly mistaken.
We are far truer to the historical
record by applying a functional approach in assessing the role played
by these early state officials. The use of state judges and their
clerks to perform executive functions was, in historical context,
hardly unusual. As one scholar has noted, "two centuries ago, state
and local judges and associated judicial personnel performed many
of the functions today performed by executive officers, including
such varied tasks as laying city streets and ensuring the seaworthiness
of vessels." Caminker, State Sovereignty and Subordinacy: May Congress
Commandeer State Officers to Implement Federal Law?, 95 Colum. L.
Rev. 1001, 1045, n. 176 (1995). And, of course, judges today continue
to perform a variety of functions that may more properly be described
as executive. See, e.g., Forrester v. White,
484 U.S. 219, 227 (1988) (noting "intelligible distinction between
judicial acts and the administrative, legislative, or executive
functions that judges may on occasion be assigned to perform").
The majority's insistence that this evidence of federal enlistment
of state officials to serve executive functions is irrelevant simply
because the assistance of "judges" was at issue rests on empty formalistic
reasoning of the highest order. 11
The Court's evaluation of the historical
evidence, furthermore, fails to acknowledge the important difference
between policy decisions that may have been influenced by respect
for state sovereignty concerns, and decisions that are compelled
by the Constitution. 12 Thus,
for example, the decision by Congress to give President Wilson the
authority to utilize the services of state officers in implementing
the World War I draft, see Act of May 18, 1917, ch. 15, §6, 40 Stat.
80-81, surely indicates that the national legislature saw no constitutional
impediment to the enlistment of state assistance during a federal
emergency. The fact that the President was able to implement the
program by respectfully "request[ing]" state action, rather than
bluntly commanding it, is evidence that he was an effective statesman,
but surely does not indicate that he doubted either his or Congress'
power to use mandatory language if necessary.
13 If there were merit to the
Court's appraisal of this incident, one would assume that there
would have been some contemporary comment on the supposed constitutional
concern that hypothetically might have motivated the President's
choice of language. 14
The Court concludes its review of
the historical materials with a reference to the fact that our decision
in INS v. Chadha,
462 U.S. 919 (1983), invalidated a large number of statutes
enacted in the 1970's, implying that recent enactments by Congress
that are similar to the Brady Act are not entitled to any presumption
of validity. But in Chadha, unlike this case, our decision rested
on the Constitution's express bicameralism and presentment requirements,
id., at 946, not on judicial inferences drawn from a silent text
and a historical record that surely favors the congressional understanding.
Indeed, the majority's opinion consists almost entirely of arguments
against the substantial evidenceweighing in opposition to its view;
the Court's ruling is strikingly lacking in affirmative support.
Absent even a modicum of textual foundation for its judicially crafted
constitutional rule, there should be a presumption that if the Framers
had actually intended such a rule, at least one of them would have
mentioned it. 15
The Court's "structural" arguments
are not sufficient to rebut that presumption. The fact that the
Framers intended to preserve the sovereignty of the several States
simply does not speak to the question whether individual state employees
may be required to perform federal obligations, such as registering
young adults for the draft, 40 Stat. 80-81, creating state emergency
response commissions designed to manage the release of hazardous
substances, 42 U.S.C. §§ 11001 11003, collecting and reporting data
on underground storage tanks that may pose an environmental hazard,
§6991a, and reporting traffic fatalities, 23 U.S.C. § 402(a), and
missing children, 42 U.S.C. § 5779(a), to a federal agency.
16
As we explained in Garcia v. San
Antonio Metropolitan Transit Authority,
469 U.S. 528 (1985):%[T]he principal means chosen by the Framers
to ensure the role of the States in the federal system lies in the
structure of the Federal Government itself. It is no novelty to
observe that the composition of the Federal Government was designed
in large part to protect the States from overreaching by Congress."
Id., at 550-551. Given the fact that the Members of Congress are
electedby the people of the several States, with each State receiving
an equivalent number of Senators in order to ensure that even the
smallest States have a powerful voice in the legislature, it is
quite unrealistic to assume that they will ignore the sovereignty
concerns of their constituents. It is far more reasonable to presume
that their decisions to impose modest burdens on state officials
from time to time reflect a considered judgment that the people
in each of the States will benefit therefrom.
Indeed, the presumption of validity
that supports all congressional enactments
17 has added force with respect
to policy judgments concerning the impact of a federal statute upon
the respective States. The majority points to nothing suggesting
that the political safeguards of federalism identified in Garcia
need be supplemented by a rule, grounded in neither constitutional
history nor text, flatly prohibiting the National Government from
enlisting state and local officials in the implementation of federal
law.
Recent developments demonstrate that
the political safeguards protecting Our Federalism are effective.
The majority expresses special concern that were its rule not adopted
the Federal Government would be able to avail itself of the services
of state government officials "at no cost to itself." Ante, at 23;
see also ante, at 31 (arguing that "Members of Congress can take
credit for `solving' problems without having to ask their constituents
to pay for the solutions with higher federal taxes"). But this specific
problem of federal actions that have the effect of imposing so called
"unfunded mandates" on the States has been identified and meaningfully
addressed by Congress in recent legislation.
18 See Unfunded Mandates Reform
Act of 1995, Pub. L. 104-4, 109 Stat. 48.
The statute was designed "to end
the imposition, in the absence of full consideration by Congress,
of Federal mandates on State . . . governments without adequate
Federal funding, in a manner that may displace other essential State
. . . governmental priorities." 2 U. S. C. A. §1501(2) (Supp. 1997).
It functions, inter alia, by permitting Members of Congress to raise
an objection by point of order to a pending bill that contains an
"unfunded mandate," as defined by the statute, of over $50 million.
19 The mandate may not then be
enacted unless the Members make an explicit decision to proceed
anyway. See Recent Legislation, Unfunded Mandates Reform Act of
1995, 109 Harv. L. Rev. 1469 (1996) (describing functioning of statute).
Whatever the ultimate impact of the new legislation, its passage
demonstrates that unelected judges are better off leaving the protection
of federalism to the political process in all but the most extraordinary
circumstances. 20
Perversely, the majority's rule seems
more likely to damage than to preserve the safeguards against tyranny
provided by the existence of vital state governments. By limiting
the ability of the Federal Government to enlist state officials
in the implementation of its programs, the Court creates incentives
for the National Government to aggrandize itself. In the name of
State's rights, the majority would have the Federal Government create
vast national bureaucracies to implement its policies. This is exactly
the sort of thing that the early Federalists promised would not
occur, in part as a result of the National Government's ability
to rely on the magistracy of the states. See, e.g., The Federalist
No. 36, at 234-235 (Hamilton); id., No. 45, at 318(Madison).
21
With colorful hyperbole, the Court
suggests that the unity in the Executive Branch of the Federal Government
"would be shattered, and the power of the President would be subject
to reduction, if Congress could . . . require . . . state officers
to execute its laws." Ante, at 23-24. Putting to one side the obvious
tension between the majority's claim that impressing state police
officers will unduly tip the balance of power in favor of the federal
sovereign and this suggestion that it will emasculate the Presidency,
the Court's reasoning contradicts New York v. United States.
22
That decision squarely approved of
cooperative federalism programs, designed at the national level
but implemented principally by state governments. New York disapproved
of a particular method of putting such programs into place, not
the existence of federal programs implemented locally. See New York,
505 U.S., at 166 ("Our cases have identified a variety of methods
. . . by which Congress may urge a State to adopt a legislative
program consistent with federal interests"). Indeed, nothing in
the majority's holding calls into question the three mechanisms
for constructing such programs that New York expressly approved.
Congress may require the States to implement its programs as a condition
of federal spending, 23 in order
to avoid the threat of unilateral federal action in the area,
24 or as a part of a program that
affects States and private parties alike.
25 The majority's suggestion in
response to this dissent that Congress' ability to create such programs
is limited, ante, at 24, n. 12, is belied by the importance and
sweep of the federal statutes that meet this description, some of
which we described in New York. See id., at 167-168 (mentioning,
inter alia, the Clean Water Act, the Occupational Safety and Health
Act of 1970, and the Resource Conservation and Recovery Act of 1976).
Nor is there force to the assumption
undergirding the Court's entire opinion that if this trivial burden
on state sovereignty is permissible, the entire structure of federalism
will soon collapse. These cases do not involve any mandate to state
legislatures to enact new rules. When legislative action, or even
administrative rule making, is at issue, it may be appropriate for
Congress either to pre-empt the State's lawmaking power and fashion
the federal rule itself, or to respect the State's power to fashion
its own rules. But this case, unlike any precedent in which the
Court has held that Congress exceeded its powers, merely involves
the imposition of modest duties on individual officers. The Court
seems to accept the fact that Congress could require private persons,
such as hospital executives or school administrators, to provide
arms merchants with relevant information about a prospective purchaser's
fitness to own a weapon; indeed, the Court does not disturb the
conclusion that flows directly from our prior holdings that the
burden on police officers would be permissible if a similar burden
were also imposed on private parties with access to relevant data.
See New York,
505 U.S., at 160 ; Garcia v. San Antonio Metropolitan Transit
Authority,
469 U.S. 528 (1985). A structural problem that vanishes when
the statute affects private individuals as well as public officials
is not much of a structuralproblem.
Far more important than the concerns
that the Court musters in support of its new rule is the fact that
the Framers entrusted Congress with the task of creating a working
structure of intergovernmental relationships around the framework
that the Constitution authorized. Neither explicitly nor implicitly
did the Framers issue any command that forbids Congress from imposing
federal duties on private citizens or on local officials. As a general
matter, Congress has followed the soundpolicy of authorizing federal
agencies and federal agents to administer federal programs. That
general practice, however, does not negate the existence of power
to rely on state officials in occasional situations in which such
reliance is in the national interest. Rather, the occasional exceptions
confirm the wisdom of Justice Holmes' reminder that "the machinery
of government would not work if it were not allowed a little play
in its joints." Bain Peanut Co. of Tex. v. Pinson,
282 U.S. 499, 501 (1931).
Finally, the Court advises us that
the "prior jurisprudence of this Court" is the most conclusive support
for its position. Ante, at 26. That "prior jurisprudence" is New
York v. United States. 26 The
case involved the validity of a federal statute that provided the
States with three types of incentives to encourage them to dispose
of radioactive wastes generated within their borders. The Court
held that the first two sets of incentives were authorized by affirmative
grants of power to Congress, and therefore "not inconsistent with
the Tenth Amendment."
505 U.S., at 173 , 174. That holding, of course, sheds no doubt
on the validity of the Brady Act.
The third so called "incentive" gave
the States the option either of adopting regulations dictated by
Congress or of taking title to and possession of the low level radioactive
waste. The Court concluded that, because Congress had no power to
compel the state governments to take title to the waste, the "option"
really amounted to a simple command to the States to enact and enforce
a federal regulatory program. Id., at 176. The Court explained:
"A choice between two unconstitutionally
coercive regulatory techniques is no choice at all. Either way,
`the Act commandeers the legislative processes of the States
by directly compelling them to enact and enforce a federal regulatory
program,' Hodel v. Virginia Surface Mining & Reclamation Assn.,
Inc., supra, at 288, an outcome that has never been understood
to lie within the authority conferred upon Congress by the Constitution."
Ibid.
After noting that the "take title
provision appears to be unique" because no other federal statute
had offered "a state government no option other than that of implementing
legislation enacted by Congress," the Court concluded that the provision
was "inconsistent with the federal structure of our Government established
by the Constitution." Id., at 177.
Our statements, taken in context,
clearly did not decide the question presented here, whether state
executive officials--as opposed to state legislators--may in appropriate
circumstances be enlisted to implement federal policy. The "take
title" provision at issue in New York was beyond Congress' authority
to enact because it was "in principle . . . no different than a
congressionally compelled subsidy from state governments to radioactive
waste producers,"
505 U.S., at 175 , almost certainly a legislative act.
The majority relies upon dictum in
New York to the effect that "[t]he Federal Government may not compel
the States to enact or administer a federal regulatory program."
Id., at 188 (emphasis added); see ante, at 35. But that language
was wholly unnecessary to the decision of the case. It is, of course,
beyond dispute thatwe are not bound by the dicta of our prior opinions.
See, e.g., U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership,
513 U.S. 18, 24 (1994) (Scalia, J.) ("invoking our customary
refusal to be bound by dicta"). To the extent that it has any substance
at all, New York's administration language may have referred to
the possibility that the State might have been able to take title
to and devise an elaborate scheme for the management of the radioactive
waste through purely executive policymaking. But despite the majority's
effort to suggest that similar activities are required by the Brady
Act, see ante, at 28-29, it is hard to characterize the minimal
requirement that CLEOs perform background checks as one involving
the exercise of substantial policymaking discretion on that essentially
legislative scale. 27
Indeed, Justice Kennedy's recent
comment about another case that was distinguishable from New York
applies to these cases as well:
"This is not a case where the
etiquette of federalism has been violated by a formal command
from the National Government directing the State to enact a
certain policy, cf. New York v. United States,
505 U.S. 144 (1992), or to organize its governmental functions
in a certain way, cf. FERC v. Mississippi,
456 U.S., at 781 , (O'Connor, J., concurring in judgment
in part and dissenting in part)." Lopez,
514 U.S., at 583 (Kennedy, J., concurring).
In response to this dissent, the
majority asserts that the difference between a federal command addressed
to individuals and one addressed to the State itself "cannot be
a constitutionally significant one." Ante, at 32. But as I have
already noted, n. 16, supra, there is abundant authority in our
Eleventh Amendment jurisprudence recognizing a constitutional distinction
between local government officials, such as the CLEO's who brought
this action, and State entities that are entitled to sovereign immunity.
To my knowledge, no one has previously thought that the distinction
"disembowels," ante, at 32-33, the Eleventh Amendment.
28
Importantly, the majority either
misconstrues or ignores three cases that are more directly on point.
In FERC, we upheld a federal statute requiring state utilities commissions,
inter alia, to take the affirmative step of considering federal
energy standards in a manner complying with federally specified
notice and comment procedures, and to report back to Congress periodically.
The state commissions could avoid this obligation only by ceasing
regulation in the field, a "choice" that we recognized was realistically
foreclosed, since Congress had put forward no alternative regulatory
scheme to govern this very important area.
456 U.S., at 764 , 766, 770. The burden on state officials that
we approved in FERC was far more extensive than the minimal, temporary
imposition posed by the Brady Act.
29
Similarly, in Puerto Rico v. Branstad,
483 U.S. 219 (1987), we overruled our earlier decision in Kentucky
v. Dennison, 24 How. 66 (1861), and held that the Extradition Act
of 1793 permitted the Commonwealth of Puerto Rico to seek extradition
of a fugitive from its laws without constitutional barrier. The
Extradition Act, as the majority properly concedes, plainly imposes
duties on state executive officers. See ante, at 8. The majority
suggests that this statute is nevertheless of little importance
because it simply constitutes an implementation of the authority
granted the National Government by the Constitution's Extradition
Clause, Art. IV, §2. But in Branstad we noted ambiguity as to whether
Puerto Rico benefits from that Clause, which applies on its face
only to "States." Avoiding the question of the Clause's applicability,
we held simply that under the Extradition Act Puerto Rico had the
power to request that the State of Iowa deliver up the fugitive
the Commonwealth sought.
483 U.S., at 229 -230. Although Branstad relied on the authority
of the Act alone, without the benefit of the Extradition Clause,
we noted no barrier to our decision in the principles of federalism--despite
the fact that one Member of the Court brought the issue to our attention,
see id., at 231(Scalia, J., concurring in part and concurring in
judgment). 30
Finally, the majority provides an
incomplete explanation of our decision in Testa v. Katt,
330 U.S. 386 (1947), and demeans its importance. In that case
the Court unanimously held that state courts of appropriate jurisdiction
must occupy themselves adjudicating claims brought by private litigants
under the federal Emergency Price Control Act of 1942, regardless
of how otherwise crowded their dockets might be with state law matters.
That is a much greater imposition on state sovereignty than the
Court's characterization of the case as merely holding that "state
courts cannot refuse to apply federal law," ante, at 30. That characterization
describes only the narrower duty to apply federal law in cases that
the state courts have consented to entertain.
The language drawn from the Supremacy
Clause upon which the majority relies ("the Judges in every State
shall be bound [by federal law], any Thing in the Constitution or
Laws of any state to the Contrary notwithstanding"), expressly embraces
that narrower conflict of laws principle. Art. VI, cl. 2. But the
Supremacy Clause means far more. As Testa held, because the "Laws
of the United States . . . [are] the supreme Law of the Land," state
courts of appropriate jurisdiction must hear federal claims whenever
a federal statute, such as the Emergency Price Control Act, requires
them to do so. Ibid.
Hence, the Court's textual argument
is quite misguided. The majority focuses on the Clause's specific
attention to the point that "Judges in every State shall be bound."
Ibid. That language commands state judges to "apply federal law"
in cases that they entertain, but it is not the source of their
duty to accept jurisdiction of federal claims that they would prefer
to ignore. Our opinions in Testa, and earlier the Second Employers'
Liability Cases, rested generally on the language of the Supremacy
Clause, without any specific focus on the reference to judges.
31
The majority's reinterpretation of
Testa also contradicts our decision in FERC. In addition to the
holding mentioned earlier, see supra, at 30, we also approved in
that case provisions of federal law requiring a state utilities
commission to "adjudicate disputes arising under [a federal] statute."
FERC,
456 U.S., at 760 . Because the state commission had "jurisdiction
to entertain claims analogous to those" put before it under the
federal statute, ibid., we held that Testa required it to adjudicate
the federal claims. Although the commission was serving an adjudicative
function, the commissioners were unquestionably not "judges" within
the meaning of Art. VI, cl. 2. It is impossible to reconcile the
Court's present view that Testa rested entirely on the specific
reference to state judges in the Supremacy Clause with our extension
of that early case in FERC. 32
Even if the Court were correct in
its suggestion that it was the reference to judges in the Supremacy
Clause, rather than the central message of the entire Clause, that
dictated the result in Testa, the Court's implied expressio unius
argument that the Framers therefore did not intend to permit the
enlistment of other state officials is implausible. Throughout our
history judges, state as well as federal, have merited as much respect
as executive agents. The notion that the Framers would have had
no reluctance to "press state judges into federal service" against
their will but would have regarded the imposition of a similar--indeed,
far lesser-- burden on town constables as an intolerable affront
to principles of state sovereignty, can only be considered perverse.
If such a distinction had been contemplated by the learned and articulate
men who fashioned the basic structure of our government, surely
some of them would have said so. 33
[Printz
v. United States, 521 U.S. 898 (1997)]
Whatever power the United States
Constitution envisions for the Executive in its exchanges with other
nations or with enemy organizations in times of conflict, it most
assuredly envisions a role for all three branches when individual
liberties are at stake. Mistretta v. United States, 488 U.S. 361,
380 (1989) (it was "the central judgment of the Framers of the Constitution
that within our political scheme, the separation of governmental
powers into three coordinate Branches is essential to the preservation
of liberty"); Home Building & Loan Assn. v. Blaisdell, 290 U.S.
398, 426 (1934) (The war power "is a power to wage war successfully,
and thus it permits the harnessing of the entire energies of the
people in a supreme cooperative effort to preserve the nation. But
even the war power does not remove constitutional limitations safeguarding
essential liberties"). Likewise we have made clear that unless Congress
acts to suspend it, the Great Writ of habeas corpus allows the Judicial
Branch to play a necessary role in maintaining this delicate balance
of governance, serving as an important judicial check on the Executive's
discretion in the realm of detentions. See St. Cyr, 533 U.S. at
301 ("At its historical core, the writ of habeas corpus has served
as a means of reviewing the legality of Executive detention, and
it is in that context that its protections have been strongest").
Thus, while we do not question that our due process assessment must
pay keen attention to the particular burdens faced by the Executive
in the context of military action, it would turn our system of checks
and balances on its head to suggest that a citizen could not make
his way to court with a challenge to the factual basis for his detention
by his government simply because the Executive opposes making available
such a challenge. Absent suspension of the writ by Congress, a citizen
detained as an enemy combatant is entitled to this process.
[Hamdi v. Rumsfeld, 542 U.S. 507
(2004)]
If a federal agency were to exercise
an analogous power to review the decisions of federal courts, the
arrangement would violate the well established rule that the judgments
of Article III courts cannot be revised by the Executive or Legislative
Branches. See <|2 Dall. 409|>Hayburn's Case, 2 Dall. 409, <|2 Dall.
410|>410, n. (1792) ("'[B]y the Constitution, neither the Secretary
[of] War, nor any other Executive officer, nor even the Legislature,
are authorized to sit as a court of errors on . . . judicial acts
or opinions . . . '"); see also Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211 (1995). The principle that judicial decisions cannot
be reopened at the whim of the Executive or the Legislature is essential
to preserving separation of powers and judicial independence. Judges
cannot, without sacrificing the autonomy of their office, put onto
the scales of justice some predictive judgment about the probability
that an administrator might reverse their rulings.
The Court today denies state judicial
systems the same judicial independence it has long guarded for itself
-- only that the injury here is worse. Under the majority's holding,
decisions by state courts would be subject to being overturned,
not just by any agency, but by an agency established by a different
sovereign. We should be reluctant to interpret a congressional statute
to deny to States the judicial independence guaranteed by their
own constitutions. See Buckalew v. Holloway, 604 P.2d 240, 245 (Alaska
1979) ("There is no doubt that judicial independence was a paramount
concern of the delegates [to the Alaska Constitutional Convention]");
see also, e.g., Cal.Const., Art. III, § 3 ("The powers of state
government are legislative, executive, and judicial. Persons charged
with the exercise of one power may not exercise either of the others
except as permitted by this Constitution"); see also 7 B. Witkin,
Summary of [540 U.S. 513] California Law 159160 (9th ed. 1988) ("[Under]
the principle of separation of powers . . . , one [department] cannot
exercise or interfere with the functions of either of the others").
The Federal Government is free, within its vast legislative authority,
to impose federal standards. For States to have a role, however,
their own governing processes must be respected. New York v. United
States, 505 U.S. 144 (1992). If, by some course of reasoning, state
courts must live with the insult that their judgments can be revised
by a federal agency, the Court should at least insist upon a clear
instruction from Congress. That directive cannot be found here.
Cf. Gregory v. Ashcroft, 501 U.S. 452, <|502 U.S. 460|>460 (1991)
("[I]f Congress intends to alter the usual constitutional balance
between the States and the Federal Government, it must make its
intention to do so unmistakably clear in the language of the statute"
(internal quotation marks omitted)).
[Alaska
Department of Environmental Conservation v. EPA, 540 U.S. 461 (2004)]
The particular facts of this case
underscore the need for care on the part of the plaintiff in identifying,
and by the court in determining, the claim for relief underlying
the "access to court" plea. The action alleged on the part of all
the Government defendants (the State Department and NSC defendants
sued for denial of access and the CIA defendants who would have
been timely sued on the underlying claim but for the denial) was
apparently taken in the conduct of foreign relations by the National
Government. Thus, if there is to be judicial inquiry, it will raise
concerns for the separation of powers in trenching on matters committed
to the other branches. See Department of Navy v. Egan, 484 U.S.
518, 529 (1988) ("`[F]oreign policy [is] the province and responsibility
of the Executive'"); Chicago & Southern Air Lines, Inc. v. Waterman
S.S. Corp., 333 U.S. 103, 111 (1948) ("[T]he very nature of executive
decisions as to foreign policy is political, not judicial"). Since
the need to resolve such constitutional issues ought to be avoided
where possible, cf. Department of Housing and Urban Development
v. Rucker, 535 U.S. 125, 134-135 (2002); Ashwander v. TVA, 297 U.S.
288, 345-348 (1936) (Brandeis, J., concurring), the trial court
should be in a position as soon as possible in the litigation to
know whether a potential constitutional ruling may be obviated because
the allegations of denied access fail to state a claim on which
relief could be granted.
[Christopher v. Harbury, 536 U.S.
403 (2002)]
A nation cannot plunder its own treasury
without putting its Constitution and its survival in peril. The
statute before us, then, is of first importance, for it seems undeniable
the Act will tend to restrain persistent excessive spending. Nevertheless,
for the reasons given by JUSTICE STEVENS in the opinion for the
Court, the statute must be found invalid. Failure of political will
does not justify unconstitutional remedies.
I write to respond to my colleague
JUSTICE BREYER, who observes that the statute does not threaten
the liberties of individual citizens, a point on which I disagree.
See post at 496-497. The argument is related to his earlier suggestion
that our role is lessened here because the two political branches
are adjusting their own powers between themselves. Post at 472,
482-483. To say the
political branches have a somewhat free hand to reallocate their
own authority would seem to require acceptance of two premises:
first, that the public good demands it, and second, that liberty
is not at risk. The former premise is inadmissible. The Constitution's
structure requires a stability which transcends the convenience
of the moment. See Metropolitan Washington Airports Authority
v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252,
276-277 (1991); Bowsher v. Synar, [524 U.S. 450] 478 U.S. 714, 736
(1986); INS v. Chadha, 462 U.S. 919, 944-945, 958-959 (1983); Northern
Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 73-74
(1982). The latter premise, too, is flawed. Liberty is always at
stake when one or more of the branches seek to transgress the separation
of powers.
Separation of powers
was designed to implement a fundamental insight: concentration of
power in the hands of a single branch is a threat to liberty.
The Federalist states the axiom in these explicit terms:
The accumulation of
all powers, legislative, executive, and judiciary, in the same
hands . . . may justly be pronounced the very definition of
tyranny.
The Federalist No. 47, p. 301 (C.
Rossiter ed., 1961). So convinced were the Framers that liberty
of the person inheres in structure that at first they did not consider
a Bill of Rights necessary. The Federalist No. 84, pp. 513, 515;
G. Wood, The Creation of the American Republic 1776-1787, pp. 536-543
(1969). It was at Madison's insistence that the First Congress enacted
the Bill of Rights. R. Goldwin, From Parchment to Power 75-153 (1997).
It would be a grave mistake, however, to think a Bill of Rights
in Madison's scheme then, or in sound constitutional theory now,
renders separation of powers of lesser importance. See Amar, The
Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1132 (1991).
In recent years, perhaps, we have
come to think of liberty as defined by that word in the Fifth and
Fourteenth Amendments, and as illuminated by the other provisions
of the Bill of Rights. The conception of liberty embraced by the
Framers was not so confined.
They used the principles
of separation of powers and federalism to secure liberty in the
fundamental political sense of the term, quite in addition to the
idea of freedom from intrusive governmental acts. The
idea and the promise were that, when the people delegate some degree
of control to a remote central authority, one branch of government
ought not possess the power to shape their destiny without a sufficient
check from the other two.
In this vision, liberty
demands limits on the ability of any one [524 U.S. 451] branch to
influence basic political decisions. Quoting Montesquieu,
the Federalist Papers made the point in the following manner:
"When the legislative
and executive powers are united in the same person or body,"
says he, "there can be no liberty, because apprehensions may
arise lest the same monarch or senate should enact tyrannical
laws to execute them in a tyrannical manner." Again:
"Were
the power of judging joined with the legislative, the life and
liberty of the subject would be exposed to arbitrary control,
for the judge would then be the legislator. Were it joined to
the executive power, the judge might behave with all the violence
of an oppressor."
The Federalist No. 47, supra, at
303.
It follows that, if a citizen who
is taxed has the measure of the tax or the decision to spend determined
by the Executive alone, without adequate control by the citizen's
Representatives in Congress, liberty is threatened. Money is the
instrument of policy, and policy affects the lives of citizens.
The individual loses liberty in a real sense if that instrument
is not subject to traditional constitutional constraints.
The principal object of the statute,
it is true, was not to enhance the President's power to reward one
group and punish another, to help one set of taxpayers and hurt
another, to favor one State and ignore another. Yet these are its
undeniable effects. The law establishes a new mechanism which gives
the President the sole ability to hurt a group that is a visible
target in order to disfavor the group or to extract further concessions
from Congress. The law is the functional equivalent of a line item
veto, and enhances the President's powers beyond what the Framers
would have endorsed.
It is no answer, of course, to say
that Congress surrendered its authority by its own hand; nor does
it suffice to point out that a new statute, signed by the President
or [524 U.S. 452] enacted over his veto, could restore to Congress
the power it now seeks to relinquish. That a congressional cession
of power is voluntary does not make it innocuous.
The Constitution is
a compact enduring for more than our time, and one Congress cannot
yield up its own powers, much less those of other Congresses to
follow. See Freytag v. Commissioner, 501 U.S. 868, 880 (1991); cf.
Chadha, supra, at 942, n. 13. Abdication of responsibility is not
part of the constitutional design.
Separation of powers helps to ensure
the ability of each branch to be vigorous in asserting its proper
authority. In this respect, the device operates on a horizontal
axis to secure a proper balance of legislative, executive, and judicial
authority. Separation of powers operates on a vertical axis as well,
between each branch and the citizens in whose interest powers must
be exercised. The citizen has a vital interest in the regularity
of the exercise of governmental power. If this point was not clear
before Chadha, it should have been so afterwards. Though Chadha
involved the deportation of a person, while the case before us involves
the expenditure of money or the grant of a tax exemption, this circumstance
does not mean that the vertical operation of the separation of powers
is irrelevant here. By increasing the power of the President beyond
what the Framers envisioned, the statute compromises the political
liberty of our citizens, liberty which the separation of powers
seeks to secure.
The Constitution is not bereft of
controls over improvident spending. Federalism is one safeguard,
for political accountability is easier to enforce within the States
than nationwide. The other principal mechanism, of course, is control
of the political branches by an informed and responsible electorate.
Whether or not federalism and control by the electorate are adequate
for the problem at hand, they are two of the structures the Framers
designed for the problem the statute strives to confront. The Framers
of the Constitution [524 U.S. 453] could not command statesmanship.
They could simply provide structures from which it might emerge.
The fact that these mechanisms, plus the proper functioning of the
separation of powers itself, are not employed, or that they prove
insufficient, cannot validate an otherwise unconstitutional device.
With these observations, I join the opinion of the Court.
[Clinton
v. City of New York, 524 U.S. 417 (1998)]
Delegation of Power
Petitioner argues that, in delegating
the power to promulgate sentencing guidelines for every federal
criminal offense to an independent Sentencing Commission, Congress
has granted the Commission excessive legislative discretion in violation
of the constitutionally based nondelegation doctrine. We do not
agree.
The nondelegation doctrine is rooted
in the principle of separation of powers that underlies our tripartite
system of Government. The Constitution provides that "[a]ll legislative
Powers herein granted shall be vested in a Congress of the United
States," U.S.Const., Art. I, § 1, and we long have insisted that
"the integrity and maintenance of [488 U.S. 372] the system of government
ordained by the Constitution" mandate that Congress generally cannot
delegate its legislative power to another Branch. Field v. Clark,
143 U.S. 649, 692 (1892). We also have recognized, however, that
the separation of powers principle, and the nondelegation doctrine
in particular, do not prevent Congress from obtaining the assistance
of its coordinate Branches. In a passage now enshrined in our jurisprudence,
Chief Justice Taft, writing for the Court, explained our approach
to such cooperative ventures:
In determining what [Congress] may
do in seeking assistance from another branch, the extent and character
of that assistance must be fixed according to common sense and the
inherent necessities of the government coordination.
J. W. Hampton, Jr., & Co. v. United
States, 276 U.S. 394, 406 (1928). So long as Congress
shall lay down by legislative
act an intelligible principle to which the person or body authorized
to [exercise the delegated authority] is directed to conform,
such legislative action is not a forbidden delegation of legislative
power.
Id. at 409.
Applying this "intelligible principle"
test to congressional delegations, our jurisprudence has been driven
by a practical understanding that, in our increasingly complex society,
replete with ever-changing and more technical problems, Congress
simply cannot do its job absent an ability to delegate power under
broad general directives. See Opp Cotton Mills, Inc. v. Administrator,
Wage and Hour Div. of Dept. of Labor, 312 U.S. 126, 145 (1941) ("In
an increasingly complex society, Congress obviously could not perform
its functions if it were obliged to find all the facts subsidiary
to the basic conclusions which support the defined legislative policy");
see also United States v. Robel, 389 U.S. 258, 274 (1967) (opinion
concurring in result).
The Constitution has never been
regarded as denying to the Congress the necessary resources
of flexibility and practicality, which will enable it to perform
its function.
Panama Refining Co. v. Ryan, 293
U.S. 388, 421 (1935). Accordingly, this Court has deemed it
constitutionally sufficient if
Congress clearly [488 U.S. 373] delineates the general policy,
the public agency which is to apply it, and the boundaries of
this delegated authority.
American Power & Light Co. v. SEC,
329 U.S. 90, 105 (1946).
Until 1935, this Court never struck
down a challenged statute on delegation grounds. See Synar v. United
States, 626 F.Supp. 1374, 1383 (DC) (three-judge court), aff'd sub
nom. Bowsher v. Synar, 478 U.S. 714 (1986). After invalidating in
1935 two statutes as excessive delegations, see A. L. A. Schechter
Poultry Corp. v. United States, 295 U.S. 495, and Panama Refining
Co. v. Ryan, supra, we have upheld, again without deviation, Congress'
ability to delegate power under broad standards.{7} See, e.g., Lichter
v. United States, 334 U.S. 742, 785-786 (1948) (upholding delegation
of authority to determine excessive profits); American Power & Light
Co. v. SEC, 329 U.S. at 105 (upholding delegation of authority to
Securities and Exchange Commission to prevent unfair or inequitable
distribution of voting power among security holders); Yakus v. United
States, 321 U.S. 414, 426 (1944) (upholding delegation to administrator
to fix commodity prices that would be fair and equitable, and would
effectuate the purposes of the Emergency Price Control Act of 1942);
FPC v. Hope Natural Gas Co., 320 U.S. 591, 600 (1944) (upholding
delegation to Federal Power Commission to determine [488 U.S. 374]
just and reasonable rates); National Broadcasting Co. v. United
States, 319 U.S. 190, 225-226 (1943) (upholding delegation to Federal
Communications Commission to regulate broadcast licensing "as public
interest, convenience, or necessity" require).
[Mistretta v. United States, 488
U.S. 361 (1989)]
When the federal judicial power is
invoked to pass upon the validity of actions by the Legislative
and Executive Branches of the Government,
the rule against advisory
opinions implements the separation of powers prescribed by the Constitution
and confines federal courts to the role assigned them by Article
III. See Muskrat v. United States, 219 U.S. 346 (1911);
3 H. Johnston, Correspondence and Public Papers of John Jay 486-489
(1891) (correspondence between Secretary of State Jefferson and
Chief Justice Jay). However, the rule against advisory opinions
also recognizes that such suits often
are not pressed before the Court
with that clear concreteness provided when a question emerges
precisely [392 U.S. 97] framed and necessary for decision from
a clash of adversary argument exploring every aspect of a multi-faced
situation embracing conflicting and demanding interests.
United States v. Fruehauf, 365 U.S.
146, 157 (1961). Consequently, the Article III prohibition against
advisory opinions reflects the complementary constitutional considerations
expressed by the justiciability doctrine: federal judicial power
is limited to those disputes which confine federal courts to a role
consistent with a system of separated powers and which are traditionally
thought to be capable of resolution through the judicial process.
[Flast
v. Cohen, 392 U.S. 83 (1968)]
N. Pipeline Constr. Co.
v. Marathon Pipe Line Co., 458 U.S. 50 (458 U.S. 50 (1982)
The distinction between
public rights and private rights has not been definitively explained
in our precedents. n22 Nor is it necessary to do so in
the present cases, for it suffices to observe that a matter of public
rights must at a minimum arise "between the government and others."
Ex parte Bakelite Corp., supra, at 451. n23 In contrast, "the liability
of [*70] one [**2871] individual to another under the law as defined,"
Crowell v. Benson, supra, at 51, is a matter of private rights.
Our precedents clearly
establish that HN6only controversies in the former category may
be removed from Art. III courts and delegated to legislative courts
or administrative agencies for their determination. See Atlas Roofing
Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442,
450, n. 7 (1977); Crowell v. Benson, supra, at 50-51. See also Katz,
Federal Legislative Courts, 43 Harv. L. Rev. 894, 917-918 (1930).
n24 Private-rights disputes, on the other hand, lie at
the core of the historically recognized judicial power.
[N. Pipeline Constr. Co. v. Marathon
Pipe Line Co., 458 U.S. 50 (458 U.S. 50 (1982)]
Metropolitan Washington Airports
Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 111 S.Ct. 2298 (1991)
The structure of our Government as
conceived by the Framers of our Constitution disperses the federal
power among the three branches-the Legislative, the Executive, and
the Judicial-placing both substantive and procedural limitations
on each. The ultimate
purpose of this separation of powers is to protect the liberty and
security of the governed. As former Attorney General
Levi explained:
“The essence of the separation
of powers concept formulated by the Founders from the political
experience and philosophy of the revolutionary era is that each
branch, in different ways, within the sphere of its defined
powers and subject to the distinct institutional responsibilities
of the others is essential to the liberty and security of the
people. Each branch,
in its own way, is the people's agent, its fiduciary for certain
purposes.
. . . . .
“Fiduciaries
do not meet their obligations by arrogating to themselves the distinct
duties of their master's other agents.” Levi, Some Aspects
of Separation of Powers, 76 Colum.L.Rev. 385-386 (1976).
Violations of the separation-of-powers principle have been uncommon
because each branch has traditionally respected the prerogatives
of the other two. Nevertheless, the Court has been sensitive to
its responsibility to enforce the principle when necessary.
*273
“Time and again we have reaffirmed the importance in our constitutional
scheme of the separation of governmental powers into the three coordinate
branches. See, e.g.,
Bowsher v. Synar, 478 U.S., at 725 [106 S.Ct., at 3187]
(citing
Humphrey's Executor, 295 U.S. [602], at 629-630 [55 S.Ct.
869, 874, 79 L.Ed. 1611 (1935) ] ). As we stated in
Buckley v. Valeo, 424 U.S. 1 [96 S.Ct. 612, 46 L.Ed.2d 659]
(1976), the system of separated powers and checks and balances
established in the Constitution was regarded by the Framers as ‘a
self-executing safeguard against the encroachment or aggrandizement
of one branch at the expense of the other.’
Id., at 122 [96 S.Ct., at 684]. We have not hesitated
to invalidate provisions of law which violate this principle. See
id., at 123 [96 S.Ct., at 684].”
Morrison v. Olson, 487 U.S. 654, 693, 108 S.Ct. 2597, 2620,
101 L.Ed.2d 569 (1988).
The abuses by the monarch recounted in the Declaration of Independence
provide dramatic evidence of the threat to liberty posed by a too
powerful executive. But, as James Madison recognized, the representatives
of the majority in a democratic society, if unconstrained, may pose
a similar threat:
“It will not be denied, that power is of an encroaching nature,
and that it ought to be effectually restrained from passing the
limits assigned to it.
. . . . .
“The founders of our republics ...
seem never for a moment to have turned their eyes from the danger
to liberty from the overgrown and all-grasping prerogative of an
hereditary magistrate, supported and fortified by an hereditary
branch of the legislative authority. They seem never to have recollected
the danger from legislative usurpations; which by assembling all
power in the same hands, must lead to the same tyranny as is threatened
by executive usurpations.... [I]t is against the enterprising ambition
of this department, that the people ought to indulge all their jealousy
and exhaust all their precautions.
“The legislative department derives
a superiority in our governments from other circumstances. Its constitutional*274
powers being at once more extensive and less susceptible of precise
limits, it can with the greater facility, mask under complicated
**2311
and indirect measures, the encroachments which it makes on the co-ordinate
departments. It is not unfrequently a question of real-nicety in
legislative bodies, whether the operation of a particular measure,
will, or will not extend beyond the legislative sphere.” The Federalist
No. 48, pp. 332-334 (J. Cooke ed. 1961).
[6]To forestall the danger of encroachment “beyond the legislative
sphere,” the Constitution imposes two basic and related constraints
on the Congress. It may not “invest itself or its Members with either
executive power or judicial power.”
J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394,
406, 48 S.Ct. 348, 351, 72 L.Ed. 624 (1928). And, when it exercises
its legislative power, it must follow the “single, finely wrought
and exhaustively considered, procedures” specified in
Article I.
INS v. Chadha, 462 U.S., at 951, 103 S.Ct., at 2784.FN19
FN19.
“As we emphasized in Chadha, when Congress legislates,
when it makes binding policy, it must follow the procedures
prescribed in
Article I. Neither the unquestioned urgency of the national
budget crisis nor the Comptroller General's proud record of
professionalism and dedication provides a justification for
allowing a congressional agent to set policy that binds the
Nation. Rather than turning the task over to its agent, if the
Legislative Branch decides to act with conclusive effect, it
must do so through a process akin to that specified in the fallback
provision-through enactment by both Houses and presentment to
the President.”
Bowsher, 478 U.S., at 757-759, 106 S.Ct., at 3204-3205
(STEVENS, J., concurring in judgment).
The first constraint is illustrated
by the Court's holdings in
Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480,
72 L.Ed. 845 (1928), and
Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d
583 (1986). Springer involved the validity of Acts of
the Philippine Legislature that authorized a committee of three-two
legislators and one executive-to vote corporate stock owned by the
Philippine Government. Because the Organic Act of the Philippine
Islands incorporated the separation-of-powers principle, and because
the challenged statute authorized two legislators to perform
*275
the executive function of controlling the management of the government-owned
corporations, the Court held the statutes invalid. Our more recent
decision in Bowsher involved a delegation of authority to
the Comptroller General to revise the federal budget. After concluding
that the Comptroller General was in effect an agent of Congress,
the Court held that he could not exercise executive powers:
“To permit the execution of the laws to be vested in an officer
answerable only to Congress would, in practical terms, reserve in
Congress control over the execution of the laws.... The structure
of the Constitution does not permit Congress to execute the laws;
it follows that Congress cannot grant to an officer under its control
what it does not possess.”
Bowsher, 478 U.S., at 726, 106 S.Ct., at 3188.
The second constraint is illustrated by our decision in Chadha.
That case involved the validity of a statute that authorized either
House of Congress by resolution to invalidate a decision by the
Attorney General to allow a deportable alien to remain in the United
States. Congress had the power to achieve that result through legislation,
but the statute was nevertheless invalid because Congress cannot
exercise its legislative power to enact laws without following the
bicameral and presentment procedures specified in
Article I. For the same reason, an attempt to characterize the
budgetary action of the Comptroller General in Bowsher as
legislative action would not have saved its constitutionality because
Congress may not delegate the power to legislate to its own agents
or to its own Members.FN20
FN20.
“If Congress were free to delegate its policymaking authority
to one of its components, or to one of its agents, it would
be able to evade ‘the carefully crafted restraints spelled out
in the Constitution.’ [
Chadha, 462 U.S.], at 959[, 103 S.Ct., at 2788].”
Bowsher, 478 U.S., at 755, 106 S.Ct., at 3202 (STEVENS,
J., concurring in judgment).
[Metropolitan Washington Airports
Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501
U.S. 252, 111 S.Ct. 2298 (1991)]
O'Donoghue v. U.S., 289 U.S.
516 (1933)
The Constitution, in distributing
the powers of government, creates three distinct and separate departments-the
legislative, the executive, and the judicial. This separation is
not merely a matter of convenience or of governmental mechanism.
Its object is basic and vital,
Springer v. Government of Philippine Islands, 277 U.S. 189, 201,
48 S.Ct. 480, 72 L.Ed. 845; namely, to preclude a commingling
of these essentially different powers of government in the same
hands. And this object is none the less apparent and controlling
because there is to be found in the Constitution an occasional specific
provision conferring upon a given department certain functions,
which, by their nature, would otherwise fall within the general
scope of the powers of another. Such exceptions serve rather to
emphasize the generally inviolate character of the plan.
If it be important thus to separate
the several departments of government and restrict them to the exercise
of their appointed powers, it follows, as a logical corollary, equally
important, that each department should be kept completely independent
of the others-independent not in the sense that they shall not co-operate
to the common end of carrying into effect the purposes of the Constitution,
but in the sense that the acts of each shall never be controlled
by, or subjected, directly or indirectly, to, the coercive influence
of either of the other departments. James Wilson, one of the framers
of the Constitution and a justice of this court, in one of his law
lectures said that the independence of each department required
that its proceedings ‘should be free from the remotest influence,
direct or indirect, of either of the other two powers.’ Andrews,
the Works of James Wilson (1896), vol. 1, p. 367. And the importance
of such independence was similarly recognized by Mr. Justice Story
when he said that in reference to each other neither of the departments
*531
‘ought to possess, directly or indirectly, an overruling influence
in the administration of their respective powers.’ 1 Story on the
Constitution (4th Ed.) s 530. To the same effect, the Federalist
(Madison) No. 48. And see
Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed.
1078.
[O'Donoghue v. U.S.,
289 U.S. 516 (1933)]
Pacemaker Diagnostic Clinic
of America Inc. v. Instromedix Inc., 725 F.2d. 537 (9th Cir. 02/16/1984)
The maxim also begs the essential
question, whether jurisdiction can be conferred on the magistrate.
The issue is not the expansion of Article III jurisdiction but its
transfer to another federal forum. The component of the separation
of powers rule that protects the integrity of the constitutional
structure, as distinct from the component that protects the rights
of the litigants, cannot be waived by the parties, but that analysis
requires us to address questions more fundamental than the irrelevant
rule that jurisdiction cannot be conferred by the parties. We now
address those concerns.
On its most fundamental plane, the
separation of powers doctrine protects the whole constitutional
structure by requiring that each branch retain its essential powers
and independence. Buckley v. Valeo, 424 U.S. 1, 120, 46 L. Ed. 2d
659, 96 S. Ct. 612 (1976); Chadha v. INS, 634 F.2d at 425 (9th Cir.
1980), aff'd, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983).
Statutes or governmental actions which violate the separation of
powers doctrine in its systemic aspect should be invalidated, as
a general rule, despite waiver by affected private parties. Here
the statute requires entry and enforcement of judgments in an Article
III court after a non-Article III judicial officer has heard the
suit. The procedure raises at least two concerns for the integrity
of the judiciary. The first is whether, by providing for reference
of court cases to a magistrate, Congress has invaded the power of
a coordinate branch or permitted an improper abdication of that
branch's central authority. See, e.g., Buckley v. Valeo, 424 U.S.
1, 120-43, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976); Schechter Poultry
Corp. v. United States, 295 U.S. 495, 529-42, 79 L. Ed. 1570, 55
S. Ct. 837 (1935); the second is whether the requirement for entry
of judgment improperly directs the judiciary in the performance
of its duties. See United States v. Klein, 80 U.S. (13 Wall.) 128,
20 L. Ed. 519 (1871); cf. California Medical Ass'n v. Federal Election
Comm'n, 641 F.2d 619, 631-32 (9th Cir. 1980) (en banc) (statutory
provision requiring en banc consideration of cases arising under
Federal Election Campaign Act may present constitutional questions),
aff'd, 453 U.S. 182, 69 L. Ed. 2d 567, 101 S. Ct. 2712 (1981).
The standard for determining whether
there is an improper interference with or delegation of the independent
power of a branch is whether the alteration prevents or substantially
impairs performance by the branch of its essential role in the constitutional
system. Nixon v. Administrator of General Services, 433 U.S. 425,
443, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977). There is little guidance
in the cases beyond this broad formulation, but the general rule
can be narrowed for the case before us. If the essential, constitutional
role of the judiciary is to be maintained, there must be both the
appearance and the reality of control by Article III judges over
the interpretation, declaration, and application of federal law.
See Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,
458 U.S. 50, 76-81, 73 L. Ed. 2d 598, 102 S. Ct. 2858 (1982); United
States v. Raddatz, 447 U.S. 667, 685, 65 L. Ed. 2d 424, 100 S. Ct.
2406 (1980) (Blackmun, J., concurring). The required control must
be more than simple appellate review. This is the teaching of Northern
Pipeline. 458 U.S. at 86, n.39.
Ours is not the paradigmatic separation
of powers case, where the integrity of one branch is threatened
by another which attempts an arrogation of power to itself. E.g.,
Buckley v. Valeo, 424 U.S. 1, 120, 46 L. Ed. 2d 659, 96 S. Ct. 612
(1976); Youngstown Steel & Tube v. Sawyer, 343 U.S. 579, 96 L. Ed.
1153, 72 S. Ct. 863 (1952). The potential for disruption is instead
the erosion of the central powers of the judiciary by permitting
it to delegate its own authority. Upon examination of the statute
before us, we conclude that it contains sufficient protection against
the erosion of judicial power to overcome the constitutional objections
leveled against it. The statute invests the Article III judiciary
with extensive administrative control over the management, composition,
and operation of the magistrate system. It permits, moreover, control
over specific cases by the resumption of district court jurisdiction
on the court's own initiative.
Article III courts control the magistrate
system as a whole. The statutory scheme created by Congress protects
against intervention by political branches of government. The Judicial
Conference of the United States, composed exclusively of Article
III judges, see 28 U.S.C. § 331 (1976), determines the number of
magistrate positions for each district, 28 U.S.C. § 633(b), protecting
against the designation of so many magistrates that effective judicial
control is lost. We must acknowledge that the exclusive character
of Article III control in this one aspect of the statute will lose
considerable force under an amendment effective April 1984, when
bankruptcy judges, non-Article III officers, are included within
the Judicial Conference of the United States. 28 U.S.C. § 331 (Supp.
V 1981). There are enough other aspects of exclusive judicial control
so that this change should not alter our conclusion, though it does
detract from the constitutional symmetry of the Magistrate Act.
Selection of magistrates and their
retention in office, under statutory standards relating to performance
and fitness, is the responsibility of Article III judges, as it
is vested in the judges of the separate districts. 28 U.S.C. § 631.
Magistrates thus are not made directly dependent upon loyalty to
officers in either of the political branches.
The congressional designation of
Article III judges to select and to appoint magistrates as subordinate
officers is not the mark of an aberrant procedure. To the contrary,
the Constitution contains explicit, textual authority for the judiciary
to appoint its own officers, if the Congress so permits. Article
II, section 2 provides that "the Congress may by law vest the appointment
of such inferior officers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Departments." See
Go-Bart Importing Co. v. United States, 282 U.S. 344, 352-53, 75
L. Ed. 374, 51 S. Ct. 153 (1931) (commissioners are inferior officers);
Rice v. Ames, 180 U.S. 371, 378, 45 L. Ed. 577, 21 S. Ct. 406 (1901)
(Congress may authorize judges to appoint commissioners). This constitutional
authority for the exercise of the appointment power by Article III
judges implies an important dimension to the judicial power: the
judiciary is permitted a degree of control and discretion for the
design and shape of its own system. The Magistrates Act implements
this constitutional authority.
[Pacemaker Diagnostic Clinic of America
Inc. v. Instromedix Inc., 725 F.2d. 537 (9th Cir. 02/16/1984)]
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