Front Page Titles (by Subject) Separation of Powers at the Crossroads - Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government
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Separation of Powers at the Crossroads - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government 
Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).
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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.”
The Rule of Law
The America of 1787 inherited from medieval England the concept of rule of law, sometimes expressed as “a government of laws, not of men.” One may trace the rise of this principle in English history all the way back to the signing of Magna Charta in the year 1215, when King John found it necessary to guarantee his obedience to English laws. For that matter, medieval English writers on law derived their understanding of the rule of law from ancient Roman jurisprudence.
“The king himself ought not to be under man but under God, and under the Law, because the Law makes the king. Therefore let the king render back to the Law what the Law gives him, namely, dominion and power; for there is no king where will, and not Law, wields dominion.” So wrote Henry de Bracton, “the father of English law,” about the year 1260, during the reign of Henry III. This teaching that law is superior to human rulers has run consistently through English politics and jurisprudence all the way down the centuries. It was rather belligerently asserted from time to time by the English colonies in North America.
This doctrine that no man is above the law applied not only to kings but also to legislative bodies and judges. Sir Edward Coke, we saw earlier, fiercely resisted not only attempts by King James I to interpret the law for himself but also Acts of Parliament that contravened the common law. Citing Bracton as an authority, he asserted that “the king must not be under any man, but under God and the law.” In Dr. Bonham’s Case (1610), Coke laid down the principle of judicial review, claiming that judges had a right, when interpreting Acts of Parliament, to declare them null and void if they conflicted with established principles of law and justice. “And it appears in our books,” said Coke, “that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void.”
That the English had turned their backs on their own tradition and respect for rule of law was the principal grievance of American colonial leaders. In his famous pamphlet The Rights of the British Colonies Asserted and Proved (1764), James Otis wrote:
To say the Parliament is absolute and arbitrary, is a contradiction. The Parliament cannot make 2 and 2 [equal] 5. … Parliaments are in all cases to declare what is good for the whole; but it is not the declaration of parliament that makes it so. There must be in every instance a higher authority—God. Should an act of parliament be against any of His natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void.
Similar arguments were made by the State supreme court judges after 1776. Their attempts to nullify legislative enactments through the power of judicial review were largely unsuccessful, however, because most early State constitutions, like the English Constitution, followed the doctrine of legislative supremacy. Acts passed by the State legislatures were expected to conform to the State constitutions. But there were no provisions calling for the supremacy of the State’s constitution over laws passed by the legislature should the judges decide that a law conflicted with the State’s constitution. Thus, the absence of a supremacy clause in these State constitutions rendered the power of judicial review weak and ineffective.
The Federal Constitution of 1787 drastically changed the concept of constitutional government by introducing the principle of constitutional supremacy. Article VI declared that “This Constitution … Shall be the supreme law of the land.” Laws passed by Congress, though supreme in relation to State constitutions and State laws, were ranked below the Constitution. Indeed, Article VI explicitly stated that such laws must conform to, and be made in pursuance of, the Constitution. Noting the significance of the Supremacy Clause, Chief Justice John Marshall held in the famous case of Marbury v. Madison (1803) that an Act of Congress contrary to the Constitution was not law:
[I]n declaring what shall be the supreme law of the land, the Constitution is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.
It may thus be seen that the American Constitution and the power of judicial review are an extension of rule of law. The Constitution is law, the highest law, and the President, Congress, and the Federal Judiciary are bound by its terms. A government of laws and not of men is, then, the underlying principle of the American political and legal system.
This means that no person, however powerful or talented, can be allowed to act as if he were superior to the law of the land. Public decisions must be made upon the basis of law, and the laws must be general rules that everybody obeys, including those who make and enforce the law. A law that violates the Constitution is not a law and is not, therefore, enforced. This was the principle that Marshall followed in Marbury v. Madison. Likewise, rule of law means equality before the law. A law that singles out certain people for discriminatory treatment, or is so vague and uncertain that one cannot know what it requires, will not be treated as a law.
Rule of law, then, is not rule of the law, but a doctrine concerning what the law ought to be—a set of standards, in other words, to which the laws should conform. Merely because a tyrant refers to his commands and arbitrary rulings as “laws” does not make them so. The test is not what the rule is called, but whether the rule is general, known, and certain; and also whether it is prospective (applying to future conduct) and is applied equally. These are the essential attributes of good laws—laws that restrain but do not coerce, and give each individual sufficient room to be a thinking and valuing person, and to carry out his own plans and designs. This does not mean that the individual is free to do as he pleases; for liberty is not license. As the Framers knew well, absolute freedom would be the end of freedom, making it impossible for society to be orderly, safe from crime, secure from foreign attack, and effectively responsive to the physical, material, and spiritual needs of its members. Under God, said the exponents of the rule of law, the law governs us; it is not by mere men that we ought to be governed; we can appeal from the whims and vagaries of human rulers to the unchanging law.
Though this is a grand principle of justice, often it is difficult to apply in practice. Passion, prejudice, and special interest sometimes determine the decisions of courts of law; judges, after all, are fallible human beings. As the Virginia orator John Randolph of Roanoke remarked sardonically during the 1820s, to say “laws, not men,” is rather like saying “marriage, not women”: the two cannot well be separated.
Yet the Framers at Philadelphia aspired to create a Federal government in which rule of law would prevail and men in power would be so restrained that they might not ignore or flout the law of the land. The Supreme Court of the United States was intended to be a watchdog of the Constitution which might guard the purity of the law and forcefully point out evasions or violations of the law by the other branches of government or by men in public office.
The Framers knew, too, the need for ensuring that the President of the United States, whose office they had established near the end of the Convention, would be under the law—not a law unto himself. The President’s chief responsibility, in fact, is to enforce and uphold the law, and to “take care that the laws be faithfully executed.” Whereas the members of Congress and the Federal Judiciary, and other Federal and State officials, all take an oath “to support this Constitution” (Article VI, Clause 3), the President—and the President alone—swears on the Bible (or affirms) that he will “preserve, protect and defend the Constitution” (Article II, Section 1, Clause 8).
Thus in the final analysis the nation looks to the President as the person ultimately responsible for upholding the rule of law and the supremacy of the Constitution. By making him Commander-in-Chief of the armed forces and by giving him the power to supervise the heads of the various departments of the executive branch, the Constitution also confers upon the President the means by which he may fulfill his law enforcement responsibilities.
By and large, America has enjoyed rule of law, not of men. No President of the United States has ever tried to make himself dictator or to extend his term of office unlawfully. Martial law—that is, a suspension of the law and the administration of justice by military authorities in times of war, rebellion, and disorder—has never been declared nationwide. No party or faction has ever seized control of the Federal government by force or violence. The Constitution of the United States has never been suspended or successfully defied on a large scale. Thus the rule of law has usually governed the country since 1787—a record true of very few other countries of the world.