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B.: The Separation of Powers - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


B.

The Separation of Powers

Since ancient times, statesmen and political thinkers have struggled with a fundamental problem that is common to all civil societies: how to structure a government that is powerful enough to govern but itself is sufficiently controlled so that it does not become destructive of the values it was intended to promote. “In framing a government which is to be administered by men over men,” observed Publius in Federalist No. 51, “the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control of the government; but experience has taught mankind the necessity of auxiliary precautions.”

The republican principle, in other words, should serve as the main pillar of the structure. A government based on consent, in which the people possess sufficient political liberty to control those who exercise political power, provides a barrier to despotism. Wise men that they were, the Framers understood, however, that we cannot rely solely and exclusively upon the people to control government or to protect the values of liberty, order, and justice. If we could, there would be no need for a constitution in the first place. Men are capable of both good and evil. This is because human beings are imperfect creatures, and it would be naive to think that all men are by nature good. “It may be a reflection on human nature,” Publius agreed, “that such [auxiliary] devices should be necessary to control the abuse of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls of government would be necessary.” From Christian teaching, the Framers had learned, then, that human nature is not to be trusted. Good laws and institutions are required to keep men from one another’s throats.

Foremost among the “auxiliary precautions” Publius had in mind was the separation of powers. Whereas republicanism provides an external check on government, separation of powers supplies an internal or built-in form of restraint. Of all the theories of government that have been propounded to establish limited government, the doctrine of separation of powers has been the most influential and successful. It stands alongside that other great pillar of Western political thought—the concept of representative government—as the major support for constitutional government.

The American doctrine of separation of powers consists of four elements: (1) the idea of three separate and independent branches of government—the legislature, the executive, and the judiciary; (2) the realization that government performs different kinds of functions, and the belief that there are unique functions appropriate to each branch; (3) the belief that the personnel of the branches of government should be kept distinct, no one person being able to be a member of more than one branch of government at the same time; and (4) the belief that the legislature may not alter the distribution by delegating its powers to the executive or the judicial branch. A separation of powers is a necessary prerequisite to limited constitutional government because a concentration of political power is inherently dangerous and will sooner or later lead to the abuse of power and to oppressive government. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny,” Publius wrote in Federalist No. 47.

The separation of powers doctrine is also closely associated with rule of law, and may be said to be an indispensable means for its attainment. If any one body had the power to interpret and enforce its own laws, there would be no force, other than good will, to counteract the temptation to use the powers of government to provide exemptions from the operation of the law and establish special privileges and immunities for the ruling class or governing faction.

The doctrine of the separation of powers may be traced back to the ancient world, where the concepts of governmental functions and theories of mixed and balanced government first appeared. Separation of powers, by itself, however, has never been a satisfactory safeguard against the usurpation and abuse of power, and even among the ancients it was realized that some form of checks and balances was necessary to prevent one branch from encroaching upon the powers of the others. The idea of internal checks, exercised by each branch over the others, first came to maturity in eighteenth-century England with the development of the “mixed and balanced” Constitution of Great Britain. The solution to the problem of political tyranny, thought the English, was to distribute the powers of government among monarchy (the crown), aristocracy (House of Lords), and democracy (House of Commons), so that each class would check the advances of the others, thereby producing a “mixed and balanced” government. The idea of a judicial power distinct from the executive, which complicated matters, was added to the equation and popularized by Montesquieu and Blackstone toward the end of the eighteenth century.

The American achievement was to substitute a functionally divided system for the “mixed” system, replacing a class-based structure with one in which all the branches of government drew their authority from the people. This was first achieved in the revolutionary State constitutions adopted in 1776, that of Virginia being an example: “The legislature, executive and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other.” These first State constitutions also departed from the British model by requiring a complete separation of personnel as well as function, that of Virginia again being representative: “nor shall any person exercise the powers of more than one of them [branch] at the same time.”

Working without any clear precedents or guidelines, and laboring under the erroneous assumption that an almost pure separation of powers would achieve the desired result of limited government, the framers of these first constitutions established powerful legislative bodies but failed to provide a check and balance system. It soon became apparent that this was a fatal omission. Throughout the country, the State legislatures became an embarrassment to republican government, not infrequently interfering with the operation of the courts, reducing governors to a condition of subservience, and violating the rights of property. Under the Virginia Constitution of 1776, “All the powers of government,” complained Thomas Jefferson, “legislative, executive, and judiciary, result to the legislative body.” His friend and colleague James Madison spoke for virtually the entire Federal Convention when he stated in Federalist No. 48: “a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” Accordingly, the Framers enthusiastically embraced the separation of powers doctrine but incorporated a check and balance system into the machinery of government. This, together with the distinctly American system of federalism, rendered the Constitution truly unique. The credit for the checks and balances feature of the Constitution probably goes to a group of astute Massachusetts lawyers, however, for it was they, under the leadership of John Adams, who wrote the Massachusetts Constitution of 1780—the first to introduce the check and balance concept that later became a part of the United States Constitution.

Checks and Balances

The check and balance system is probably the most ingenious and carefully crafted feature of the American Constitution. Like the principle of federalism, it permeates the document. Here is what the Framers did in order to reconcile the principle of separation with the urgent need for a vigorous new government that would exercise some self-control:

(1) They arranged that there should be some overlap of functions among the three major departments of government. In some ways, one department was allowed to touch upon the usual affairs of a different department. Montesquieu had written that no department should exercise “the whole power” of another department, but to exercise some part of the power of another department was permissible. There ought to be no insurmountable wall of separation shutting off executive and judicial branches from the legislative in every respect. Thus in the final version of the Constitution that was submitted for ratification, the President (executive branch) was given a part in the legislative process, through his power of veto and his power to make recommendations in “State of the Nation” addresses to the Congress. On the other hand, the legislative branch, through the Senate, was given some power over the executive branch, in that treaties and presidential appointments to major administrative posts and to the judiciary must be confirmed by the Senate. Likewise, the judiciary was given some executive power to manage its own internal affairs. By the power of judicial review, it might also overturn acts of the legislature deemed unconstitutional.

(2) They improved upon the State constitutions by arranging that the members of the three branches of government should be chosen in three different ways—so making the executive and judicial branches more independent from the legislative. (In the early State constitutions, usually the legislature had appointed and removed State executives and judges.) Under the new Constitution of the United States, members of the House of Representatives would be elected by the voters of geographic districts within the several States; Senators would be elected by their State legislatures; and Presidents would be elected by a College of Electors. Federal judges would be appointed by the President, subject to confirmation by the Senate, and would be appointed for life. By separating personnel as well as functions, the authors of the Constitution sought to prevent the legislative branch from lording over a subordinate executive and a subordinate judiciary.

(3) The Framers provided each department with constitutional means for resisting attempts at domination by the other departments. The President’s “qualified veto” over enactments of the Congress was a protection for the executive branch. Life tenure for judges was a protection for the judicial branch. As an additional device for strengthening the executive and judiciary against the legislature, the Framers arranged that members of the House and Senate would be chosen by different means, and in part at different times. The Congress, for its share, was given the constitutional power of impeaching the executive or members of the judiciary—a grim power inherited from the British Constitution.

(4) It may thus be seen that an elaborate system of checks and balances was woven into the Constitution. These checks and balances were intended to prevent any person or organ of government from interfering with constitutional freedoms or with the lawful functioning of another organ of government. They also help to maintain the separation of powers by arming each branch with a defensive power to resist encroachments from another branch.

These built-in checks upon the power of any person or office in the Federal government are still functioning two centuries after their invention.

To obtain a clearer notion of these several constitutional means for separating powers and providing checks and balances in the Constitution, study the following list of such provisions in the original seven Articles of the Constitution:

Checks upon the Congress

The Vice President (executive branch) presides over the Senate and can cast a tie-breaking vote (Article I, Section 3).

The President is empowered to call special sessions of the Congress, and to adjourn both houses if they cannot agree upon a time for adjournment (Article II, Section 3).

The President is given power to veto acts passed by the Congress (Article I, Section 7).

The Supreme Court has power to review enactments of the Congress for unconstitutionality (an unspecified power derived from Article III).

Checks upon the President

Congress has power to impeach and remove the President for high crimes and misdemeanors (Article II, Section 4).

Congress may override a presidential veto by a two-thirds majority (Article I, section 7).

Congress can assure civilian control of the military through its power to appropriate—or withhold—funds to support military and naval forces, to make regulations for those forces, to call forth the militia of the States, to suppress insurrections and to repel invasions, and to declare war (Article I, Section 8).

Congress has an inherent power to investigate actions of the executive branch concerning proper execution of the laws and proper expenditure of funds (Article I, Section 8).

Congress is empowered to appropriate the funds for operation of the executive branch (Article I, Section 8).

The Senate has power to approve, amend, or reject treaties. It may also attach reservations to the treaty, which may not alter the content but may qualify or limit the obligations assumed by the United States under the agreement (Article II, Section 2).

The Senate has power to confirm or reject presidential appointments to major posts (Article II, Section 2).

The Judiciary has power to review actions of the executive branch for their constitutionality (an unspecified power derived from Article III).

Checks upon the Judiciary

Congress has power to impeach and remove Federal judges for adequate cause (Article I, Section 3; Article II, Section 4; Article III, Section 1).

Congress has power to appropriate funds for operation of the judicial branch (Article I, Section 8).

Congress has power to determine the number of judges and the size of Federal courts (Article III, Section 1).

Congress has power to regulate the original jurisdiction of inferior Federal courts and the appellate jurisdiction of all Federal courts (Article III, Sections 1 and 22).

The President has power to appoint Federal judges (Article II, Section 2).

These checks upon the powers of all three major branches of the Federal government, if carried to extremes, might make it difficult to carry on government at all. This the Framers understood. So they checked or balanced the checks-and-balances system itself by adding to the Constitution provisions to protect each branch from interference with its operations by another branch, and to protect the members of each branch from threats and reprisals. Here are the major protective provisions:

The Independence of Congress

Congress is authorized to assemble annually, and the President may not dissolve a Congress (Article I, Section 4).

Both houses of Congress have the power to judge the elections, returns, and qualifications of their own members (Article I, Section 5).

Only the Congress can determine the rules for its proceedings, punish its members for disorderly behavior, and expel its members (Article I, Section 5).

Members of Congress are privileged from arrest while Congress is in session, except for cases of treason, felony, and breach of the peace (Article I, Section 6).

Members of Congress are exempt from arrest, prosecution, or lawsuit for what they may say on the floors of Congress or in committee—even if their remarks are slanderous or seditious (Article I, Section 6).

The Independence of the President

The President is chosen by electors, and is not appointed by the Congress (Article II, Section 1).

Congress may not raise or lower the President’s salary while he is in office (Article II, Section 1).

Only the President may conduct diplomacy with foreign governments and extend diplomatic recognition (Article II, Section 3).

The President is given unrestricted power to remove all executive officers and Senate approval is not required (an unspecified power derived from Article II, Section 3).

The Independence of the Judiciary

Congress may not reduce the salary of a Federal judge while he holds office (Article III, Section 1).

Congress may not diminish the original jurisdiction of the Supreme Court (an unspecified restriction derived from Article III, Section 2).

Congress may not abolish the Supreme Court or the office of Chief Justice (Article III, Section 1; Article I, Section 3).

Summary and Review

All of this detail may seem somewhat confusing, so a summary and review of this information about the separation of powers and about checks and balances should be helpful.

The Framers understood, chiefly from the experience of the States and the general government under the Articles of Confederation, that only through a system of checks and balances might the separation of powers be maintained. So the Constitution contains the ingenious network of checks and protections previously described.

These checks and balances were devised to enable each branch to resist such invasions of their proper authority. They enabled each branch to exert some direct control over the other branches. This the Framers accomplished by overlapping some of the functions of the Federal government, so that each branch might play some part—though merely a limited part—in the exercise of the other branches’ functions.

Thus the Congress was empowered to exercise a degree of executive and judicial power. The Senate, for example, actually exercises an executive function when it participates in the appointment and treaty-making processes; and both houses of Congress exercise a judicial power when they impeach and remove a judge or an executive official from office. A legislative check on the judiciary is established by the power of Congress to determine the size of the courts and to limit the appellate jurisdiction of both the Supreme Court and inferior Federal courts.

Similarly, the executive exercises some legislative powers. The presidential veto, for example, is a legislative power that permits the President to take part in the law-making process. The President exercises a judicial power, on the other hand, when he pardons a person convicted of a Federal crime.

The judiciary, in turn, possesses legislative power through judicial review, and enjoys some executive power through its authority to appoint clerks and other court personnel.

Each branch, it may be seen, is independent of the others, although the independence they possess is not absolute.

Such is the theory of the separation of powers as understood and applied in 1787. Madison and other Framers expected quarrels to break out from time to time between branches of government. Indeed, they counted on such quarrels. Why? Because jealousy and hostility among the chief divisions of the Federal government would prevent the three branches from combining in any scheme to infringe upon the powers of the several States or to diminish the liberties of citizens.

In other words, Madison and his colleagues meant to avert the rise of an oligarchy (the rule of a few rich and powerful men) or of a tyrant (an unlawful single ruler) by making it almost impossible for any man or faction to secure the simultaneous cooperation of the legislative, executive, and judicial branches. Thus the Constitution would be guarded against subversion by the ambition and the vanity of the men who respectively belonged to the legislature, the executive force, and the body of judges. “Ambition would counteract ambition,” as Madison put it.

The principal men in Congress would tend to resent the power of the presidency and to assert the claims of Senate or House to national leadership. The President, for his part, would cherish his powers jealously and would vigorously repel attempts of the Congress to dictate executive policies. And the Supreme Court would maintain a stern defense of its prerogatives, rebuking both Congress and President from time to time.

Separation of Powers: A Critical Evaluation

Since 1789, when the First Congress convened, the executive branch has tended to grow in power, even during the administration of Presidents who professed to respect the legislative branch.

The judiciary, ever since John Marshall became Chief Justice in 1801, has tended to be much more assertive of its powers than the Framers had expected. (Alexander Hamilton, writing in The Federalist, assured his readers that the Supreme Court, “the weakest of the three branches,” could take “no active resolution whatever.”) Today, Federal courts examine and review Congressional enactments and presidential orders far more frequently than the Framers imagined.

Congress, though meddling little with the judiciary since the first decade of the nineteenth century, has bitterly attacked Presidents from time to time, often out of partisan motives. What is even more destructive of balanced government, Congress has delegated to a multitude of Federal regulatory commissions and administrative bodies major powers that, under separation of powers teaching, ought to be retained jealously within Congress. Indeed, some critics argue that it is chiefly from governmental commissions and agencies that the principal threat to citizens’ rights comes today—not from old-fangled oligarchs and tyrants.

Over the years, certain misconceptions about the American doctrine of separation of powers, and criticisms of the system, have surfaced from time to time in writings on American politics. The assumption is often made, for example, that the Constitution established three “equal” or three “coordinate” branches of government. Such is not the case. As Madison observed in Federalist No. 51, “it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.” Experience under the State constitutions had shown, he explained in Federalist No. 48, that “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.”

Moreover, the constitutional powers of Congress are “more extensive and less susceptible to precise limits,” and Congress “can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments.” The executive power, on the other hand, is “restrained within a narrower compass,” and the judiciary’s powers are even more uncertain. “Projects of usurpation by either of these departments would immediately betray and defeat themselves.” Not to be overlooked, added Madison, is the fact that “the legislative department alone has access to the pockets of the people,” which gives it the power to reward and punish those who serve in the other branches.

In theory, at least, Congress has the constitutional authority to lord over the other branches. An angry House and Senate might, if it wished, reduce the entire Federal Judiciary down to one Supreme Court, with only the Chief Justice, exercising only limited, original jurisdiction. A legislative assault on the executive branch would be equally devastating, leaving the President with no cabinet, no departments, no army or navy, and no funds. All of this is possible because the other branches rely almost exclusively on Congressional statutes for their operation.

There are numerous examples of legislative encroachment, as witnessed, for example, by the impeachment of President Andrew Johnson. There have also been periods of legislative ascendancy, which Woodrow Wilson complained of in his book, Congressional Government. Throughout most of American history, however, Congress has probably exercised more restraint than the Framers anticipated. That an unruly Congress always has the potential of tyrannizing over other branches is a factor that should always be kept in mind, however; and it should also be emphasized that the main reason for the separation of powers and checks and balances system, as the Framers saw the problem, was to protect the executive and judicial branches against the legislative. This is not to say that the Framers overlooked the possibility that the President or the Supreme Court might also abuse their powers, but merely that in 1787 they seemed to lack the inclination and capacity.

It is true, of course, that all three branches have become far more powerful in the twentieth century than the Framers ever thought possible. The growth of Federal power, however, has been largely at the expense of the States, and the growth of presidential and judicial power has come about through the acquiescence or approval of Congress. The Congress is still the fountainhead of power, and the hub of the system. In the final analysis, there is practically no constitutional controversy or problem that Congress (and to a lesser extent the States through the initiation of amendments) cannot ultimately resolve, if it has the will to do it. Neither the President nor the courts can make this claim. Constitutionally speaking, therefore, Congress is the most powerful branch, but in practice it does not always assert itself and at times may even be overshadowed by the President or the Supreme Court.

Today, as in 1787, the separation of powers doctrine is venerated and praised as the mainstay of the Constitution. It has never been targeted for attack by any political reform movement and has traditionally enjoyed a broad consensus of support among the American people. But it has not been immune from criticism. From time to time there have been outcries of disappointment and frustration because the American political process does not always respond immediately to every call for action. Some critics have charged that separation of powers weakens the Federal government, and that the built-in tension and conflict among the branches produces political paralysis. In today’s world, they argue, where the United States is embroiled in one global crisis after another in the seemingly endless struggle against terrorism and war, a more harmonious relationship between the President and Congress would allow the United States to act with greater certainty and dispatch.

It is true, of course, that the separation of powers slows the pace of government. More than once the United States Senate has blocked a treaty signed by the President. Congress and the President share the war and diplomatic powers and are not always of one mind on military and foreign policy. The Supreme Court has occasionally intervened, as in 1952, when the Justices ruled in the famous Steel Seizure Case that President Truman had exceeded his powers when he endeavored to prevent a nationwide strike in the steel industry by taking possession of the mills.

Speed, however, is not a virtue in the political process crafted by the Framers. The system is intended to promote careful deliberation, which is time-consuming, to be sure, but necessary to build a consensus so that the decision finally made has broad support. The Framers believed also that the deliberative process increases the likelihood that the policy finally adopted will be a wise one. Hasty decisions are often foolish decisions. Debate and negotiation have the salutary effect of cooling tempers and correcting mistaken views and false impressions. Compromise means that a variety of conflicting interests have some voice in public affairs; and without this complicated check and balance system, minorities of every description—property holders, rural folk, religious sects, racial and ethnic groups, certain occupations and professions, whole regions of the country—would be at the mercy of an unrestrained Congress, President, or Supreme Court. Separation of powers protects the American citizen against overbearing majorities as well as entrenched minorities.

The claim that separation of powers weakens government is equally unpersuasive. It is abundantly clear from an examination of the Constitution and a review of The Federalist that the national government was to be a strong government, with the power to fulfill the obligations placed upon it and the means to carry out those obligations. Separation of powers was designed not to emasculate the powers of government, but to give some assurance that they would not be exercised in an oppressive way. Preventing the aggrandizement, usurpation, and abuse of power is not the same as preventing the exercise of lawful power. There is no pattern of evidence that the separation of powers has prevented the United States from dealing with foreign aggression or domestic crises in a timely and efficient manner. Of the many examples that have been offered in defense of separation of powers, however, none is more convincing than the twentieth-century spectacle of totalist governments misruling more than half the world. The concentration of ruthless power in the hands of fanatical and half-mad rulers—often in the name of “liberation” or “people’s democracy”—has resulted in a degree of human misery that even the worst government of the eighteenth century would have regarded with horror.

Separation of Powers at the Crossroads

The complex task of directing the affairs of a modern industrial state, with a large and growing population placing increased demands on government, has had a negative effect on separation of powers and the rule of law. So too has America’s rise to power as the defender of the free world, which has changed the role of the President and what is expected of the office, and greatly enlarged his war and diplomatic powers.

Of the many factors which have contributed to the decline of separation of powers, however, the massive delegation of legislative powers by Congress to executive agencies and independent regulatory commissions has probably done the most to change the relationship among the branches and the law-making function of government. By delegation of powers is meant the transfer of the decision-making authority from one branch of the government to another. Independent regulatory commissions, such as the Federal Trade Commission, the Federal Communications Commission, or the Securities and Exchange Commission, are quasi-legislative, quasi-executive, and quasi-judicial bodies that lie outside the separation of powers system. The first such commission was the Interstate Commerce Commission, established in 1886; but most are primarily a phenomenon of the twentieth century. Many were created during the New Deal. They are independent in the sense that they are largely free of executive control. The President may appoint the members, but that is about the extent of his influence; and Congress may even prescribe and restrict the causes for which the President may remove them from office. These commissions are quasi-legislative in the sense that Congress has given them a portion of its own law-making authority so they can regulate certain activities, largely commercial in nature, such as the stock market, the licensing of radio and television broadcasting, and various trade practices. Regulations adopted by the commissions are treated as laws and enforced by the commissions. Independent regulatory commissions exercise a quasi-judicial function in the sense that affected parties may challenge their rulings in administrative proceedings, before administrative law judges, who conduct hearings much like a court of law. Administrative decisions are subject to review by the regular courts.

These independent boards, agencies, and commissions—and there are more than fifty today—are sometimes called “the headless fourth branch of government.” The basic purpose in placing these hybrid organizations outside the regular executive departments was to keep them “out of politics,” the idea being that they would perform the regulatory function in a more non-partisan manner, and would more likely be fair and reasonable, if they were free of presidential pressures and controls. But experience has shown that the commissions are not entirely independent of politics or immune from outside pressures. Special interest groups lobby the commissions just as they seek to influence public policy decisions in Congress and the executive branch. Thus corporations, manufacturers, labor organizations, and a variety of public interest groups, for example, all descend not only on the committees in Congress and the Department of Labor in order to advance their interests, but also on the National Labor Relations Board. Labor-related issues may also come before other commissions, legislative committees, and executive agencies. At the State level, there are fifty additional governments, all regulating through their own courts and departments of labor some aspect of labor-management relations, such as workers’ compensation, while at the same time implementing Federal policies. It is an enormously complex affair, requiring considerable effort, expense, and expertise. The result is the establishment of an enormous bureaucracy.

As originally conceived, these independent regulatory commissions were thought to be necessary as a means of introducing order into a highly industrialized nation, providing uniform controls, eliminating monopolistic practices, and in general improving health, safety, and welfare. In a very emphatic way, they represented a rejection of the laissez-faire approach to economic activity, prevalent in the nineteenth century, which frowned on government interference in a free market economy and took the position that all members of society, and the nation at large, would enjoy greater prosperity and abundance if government refrained from meddling too much in the economy and allowed the laws of supply and demand to work naturally.

The wisdom of government regulation, and the extent to which the natural forces of the market should be controlled, are questions of great interest and debate. Our purpose here, however, is to evaluate the effect the creation of these independent commissions has had on the separation of powers system. The legislative powers of the Federal government, we recall, are delegated powers. They were originally in the possession of the States, which delegated them to Congress. An ancient maxim of the separation of powers doctrine holds that “that which has been delegated cannot be redelegated.” A separation of powers would not long exist if Congress were free to transfer its delegated powers to another branch. Likewise, the system would not function properly if Congress could delegate its powers back to the States, or to the people at large. Although under some State constitutions the citizens may initiate legislation through what is called the “initiative,” or repeal laws through “referendum,” such practices circumventing the legislature are prohibited under the United States Constitution. They constitute an unconstitutional delegation of legislative power.

How, then, has it been possible for Congress to delegate its legislative powers to independent regulatory commissions (and executive agencies as well)? In addressing this issue, the courts have adopted the view that Congress may empower such commissions to issue rules and regulations as long as the authorizing statute provides guidelines for the regulators. The guidelines must be sufficiently explicit, however, so as to prevent the use of arbitrary discretion in the rule-making process. In general, the courts are satisfied that there has been no improper delegation if the regulation in question seems to reflect the will of Congress and the commission has merely “filled in the administrative details” for Congress.

In practice, the courts have tended to interpret these restrictions somewhat loosely by giving substantial leeway to the commissions to “fill in the details” of broadly stated congressional policies. Thus the commissions are, in effect, often making the law, even though the commissioners themselves are not elected to office and are not accountable for their actions to the electorate—or in many respects even to Congress.

The effect of all this on the American constitutional system is far-reaching. In the first place, it contributes to the decline of federalism, and has resulted in the transfer of vast amounts of State power to the Federal bureaucracy. The subject of labor relations is just one of many areas of public policy that could be cited to illustrate the problem. Among the delegated powers of Congress in Article I, Section 8 of the Constitution, there is no mention of labor, and throughout most of American history the power to deal with such issues as labor strikes, the right to organize unions, working conditions, wages and hours, and the problem of child labor was left to the States. Early in the twentieth century, however, Congress began claiming the right to regulate labor under the Commerce Clause. The Supreme Court at first resisted these claims on the ground that labor was not commerce as such and was therefore beyond the reach of Federal authority. During the New Deal period, however, the Court reversed its stand, and since that time the entire field of labor-management relations has been subject to Federal regulation and control.

Having taken command of the situation, the Congress quickly discovered that the subject was far too complex and time consuming for busy members of the House and Senate, and that it would be necessary, therefore, to turn the whole matter over to an independent regulatory commission. This commission would carry out the will of Congress through general statutes, but would be responsible for the day-to-day enforcement of the laws through the issuance of rules and regulations and the adjudication of disputes arising under them. Thus was born the National Labor Relations Board in 1935, which is actually neither the first nor the only commission dealing with labor problems. In large measure, however, the NLRB is now the repository of power that once belonged to the States.

In the second place, the creation of the NLRB and other such commissions, as previously noted, has tended to weaken separation of powers. It is simply humanly impossible for members of Congress to monitor the activities of all these commissions, which employ millions of people and issue thousands of highly technical regulations annually. Important policy decisions are thus actually made on a routine basis by Federal employees, many anonymous, who enjoy tenure under the Civil Service Act and cannot easily be removed from office or controlled by Congress.

The existence of so many independent commissions exercising so much power also frustrates the executive branch. The President has no say in their operation, yet is responsible for the general enforcement of the laws. Executive unity and uniformity of policy may also suffer if the President is pursuing one policy and a commission is moving in another direction. Since members of these commissions serve staggered terms, the President may even find that certain commissioners appointed by a previous President are actively working against him to undermine his programs.

Likewise, the courts have experienced difficulty in restraining over-zealous regulators who may have exceeded their authority. Administrative decisions handed down by the commissions are subject to review by the regular courts. But only a small percentage are actually adjudicated because there are not enough judges or courts to handle the great volume of disputes. Much of what is actually decided in the commissions is never reviewed by the judges. Moreover, many of the rules and regulations in question are highly technical or scientific in nature, and beyond the range of judicial expertise. This further weakens the ability of the courts to superintend the commissions.

Critics argue that Congress, having decided it wants to regulate everything, actually regulates nothing, and has simply delegated enormous power to the bureaucracy. This is an overstatement, of course, but there is some truth to the charge. Keeping an eye on the commissions and holding them accountable is an enormous undertaking; and there is no question that at least in some respects these commissions are functioning as independent law-making bodies. With its limited time and limited resources, Congress does not even have the opportunity to debate many of the policies adopted by the commissions, let alone scrutinize them.

In response to these criticisms, it is argued nevertheless that the economic and technological complexities of modern America are so great that Americans have little choice but to accept these commissions as necessary and essential, lest there be chaos and disorder. No doubt there is some truth to this as well, suggesting that a strict separation of powers, as understood by the Framers, may not be altogether possible nowadays, and that the system can best be maintained by continually questioning the need for each commission, re-evaluating its authority and powers, and vigilantly guarding against excessive delegation of power.

Finally, it must always be borne in mind that the doctrine of the separation of powers is an integral part of the rule of law. When commissioners, agency heads, and their subordinates issue administrative rules and regulations that have the force of law, they are making laws and functioning as legislators. When they enforce these regulations, and, for example, take administrative action by denying disability benefits to a veteran whose injuries, in the judgment of the regulators, are not war-related, they are exercising an executive function. And when they adjudicate claims, as in the case of a trucking firm, challenging the Interstate Commerce Commission’s refusal to grant a license, they are exercising a judicial function. In a sense, then, an independent regulatory commission is almost a government unto itself, performing all the functions of government in contravention of the separation of powers. Because it is impossible to fix the limits of administrative discretion and to spell out in detail all of the circumstances in which the regulators may exercise their individual judgment, there is the constant danger that rule of law may be supplanted by rule of men. Indeed, the separation of powers doctrine is based on the premise that rule of law cannot be attained if all of the functions of government are concentrated in the same hands.

Abuses in administrative discretion may be and frequently are brought to the attention of Congress, but the massive outpouring of regulations and all of the individual complaints far exceed the capacity of Congress for corrective action. In those rare instances where a legislator is able to focus on a particular case, there is often little that can be done to correct the problem from a practical standpoint. Congress, and certainly not an individual member, has no authority to remove an arrogant bureaucrat from office, and the President’s limited power of removal is almost equally feeble, as demonstrated by the fact that only a small handful of commissioners have been forced out of office; and their subordinates are immune from reprisal or removal. Congress is always free, of course, to overturn administrative rulings by corrective legislation, but again, this is an arduous chore that seldom is attempted, and an option that is not usually available in the case of individual wrongdoings.

In the final analysis, it must also be admitted that the creation of so many independent regulatory commissions has also weakened the republican principle of representative government and the ideal of democratic government in which the decision-makers are held politically accountable to the voters for their actions. Judicial review of administrative decisions, which can address some of the worst abuses of power, offers the hope that legal accountability may nevertheless be upheld. “What is required under the rule of law,” notes Friedrich A. Hayek in his great classic The Constitution of Liberty, “is that a court should have the power to decide whether the law [passed by Congress] provided for a particular action that an administrator has taken. In other words, in all instances where administrative action interferes with the private sphere of the individual, the courts must have the power to decide not only whether a particular action was [within the law], but whether the substance of the administrative decision was such as the law demanded. It is only if this is the case that administrative discretion is precluded.”