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Constitutional Law

Separation of Powers

Federal Separation of Powers

The Constitution of the United States establishes three different branches of government, each possessing their own specific powers and limitations, which are colloquially known as checks and balances.

Article I -  Establishment of the Legislative Branch of the United States, which includes Congress (House of Representatives & Senate). 

Article II - Establishment of the Executive Branch which includes the President, his cabinet members and various federal agencies.

Article III - Establishment of the United States Supreme Court and its lower Federal Courts.

Example of Separation of Powers in Action

The case United States v. Alvarez (2012) provides a great example of all three branches of government acting within the scope of their powers, and the reactions that can take place between each branch of government.

Summary via Justia.com: "The Stolen Valor Act makes it a crime to falsely claim receipt of military decorations or medals and provides an enhanced penalty if the Congressional Medal of Honor is involved, 18 U. S. C. 704 (b),(c). After pleading guilty to falsely claiming that he had received the Medal of Honor, Alvarez challenged the Act as unconstitutional. The Ninth Circuit held that the Act is invalid under the First Amendment. The Supreme Court affirmed. Characterizing the law as a content-based restriction on protected speech, the Court applied the “most exacting scrutiny.” Falsity alone does not take speech outside the First Amendment. While the government’s interest in protecting the integrity of the Medal of Honor is beyond question, the First Amendment requires a direct causal link between the restriction imposed and the injury to be prevented; that link was not established. The government had no evidence that the public’s general perception of military awards is diluted by false claims or that counter-speech, such as the ridicule Alvarez received online and in the press, would not suffice to achieve its interest. The law does not represent the “least restrictive means among available, effective alternatives.” The government could likely protect the integrity of the military awards system by creating a database of Medal winners accessible and searchable. Dissenting Justices Alito, Scalia, and Thomas viewed the Act as significantly limited and necessary to the important governmental objective."

  • The Legislative Branch (Congress) passed the Stolen Valor Act of 2005 which punished anyone who falsely claimed to have received specific military honors or medals.
  • Through this case, the Judicial Branch (Supreme Court) reviewed the Stolen Valor Act of 2005 passed by Congress and determined that it was in violation of the United States Constitution and the public's First Amendment right to freedom of speech. The Supreme Court also suggests that the Government could have simply create a database to document the legitimacy of any military honors or awards rather than punish free speech. 
  • In response to the Supreme Court's decision, the Executive Branch (President) established a government funded national database to allow for the verification of military honors.
  • Subsequently, the Legislative Branch (Congress) went on to revise the invalidated law by passing the Stolen Valor Act of 2013, which more narrowly tailored the language to avoid the First Amendment issues raised by the Supreme Court.

Article I: The Legislative Branch

The Legislative Branch of the United States is granted its authority by Article I of the United States Constitution. As such, the scope of Congress's power is limited to its enumerated power as they are listed within the Constitution. Of course, the answer as to what exactly those enumerated powers are has resulted in a number of Supreme Court cases over the years. Some of the specific areas where Congress's power has been decided by the Supreme Court are as follows:

Necessary and Proper Clause (Art. I, Sec. 8, Cl. 18)

McCulloch v. Maryland (1819)

  • Congress can act with "implied" authority under the Constitution, so long as such actions are appropriate and legitimate in furthering the interests of its express enumerated powers.

Jinks v. Richland County (2003)

  • Congress can directly toll a state's statute of limitations period for a given legal matter while a supplemental claim on that same issue is pending in federal court.

Commerce Clause (Art. 1, Sec. 8, Cl. 3)

Gibbons v. Ogden (1824)

  • Congress has the authority to regulate interstate commerce involving the navigation between states.

United States v. Darby (1941)

  • Congress can regulate areas of state employment law that could have a potential impact on interstate commerce (minimum wage, child labor, maximum hours per week, etc).

Heart of Atlanta Motel, Inc.  v. United States(1964); Katzenbach v. McClung (1964)

  • Congress can regulate public accommodations within a state via anti-discrimination legislation so long as the regulated discriminatory behavior has an impact on interstate commerce.

United States v. Lopez (1995); United States v. Morrison (2000)

  • The regulation of interstate activity must be economic/commercial in nature.
  • Gun possession and gender based violence are not economic activities

Wickard v. Filburn (1942); Gonzales v. Raich (2005)

  • Congress can regulate strictly in-state activity so long as there is a rational basis to find that the regulated activity, when viewed in the aggregate, would have a substantial effect on interstate commerce.

National Federation of Independent Business v. Sebelius (2012)

  • Congress cannot compel individuals to engage in interstate commerce if they were not already engaging in it themselves.

Taxing & Spending Powers (Art. I, Sec. 8, Cl. 1)

United States v. Butler (1936)

  • Congress cannot use its Tax & Spend powers to intervene within the regulatory powers of a state (such as regulating agricultural production).

Bailey v. Drexel Furniture Co. (1922); United States v. Kahriger (1953)

  • Although Congress's taxing power cannot be used to impose a regulatory "penalty," tax legislation is permissible so long as the law's purpose, on its face, is intended to produce revenue.

Fullilove v. Klutznick (1980)

  • Congress can condition a State or private party's receipt of federal money that is offered through a federal program.

South Dakota v. Dole (1987)

  • Congresses conditional requirements for State funds must meet four specific criteria: (1) The federal funds being offered must serve a general welfare purpose; (2) the conditional requirements must be unambiguous; (3) the conditional requirements must relate to a Federal interest; and (4) the conditional requirements cannot violate any other provisions of the US Constitution.

New York v. United States (1992)

  • Congress cannot compel States to directly enact or administer Federal regulations.

Article II: The Executive Branch

The Executive Branch of the United States is granted its authority by Article II of the United States Constitution.Throughout the history of the United States there has been a consistent debate over defining the extent of the Executive Branch's lawmaking ability under the Constitution. For example, to what extent can the President act independent from Congressional authority?

Acting With / Without Congressional Authority

Youngstown Sheet & Tube Company v. Sawyer (1952)

  • The Executive Branch is limited in its ability to act without Congressional Authority. In this case the Court provided three levels of varying scrutiny involving the legitimacy of Executive Powers. (1) The greatest deference is given where the President has received authority from Congress, either explicitly or implicitly; (2) Less deference is given to the President where Congress is silent regarding the acts in question; and (3) the lowest deference is given where the President acts in direct conflict with Congressal authorization.

Congressional Delegation of Powers

Another question involves Congress's authority to delegate powers to the Executive Branch. The Court has approached this question in two different ways, a Formalist approach (by taking the literal text of the Constitution and strictly adhering to the separate of powers doctrine), and the Functional approach (by looking beyond a strict interpretation in order to allow for more flexibility).

(1) Formalist Approach

Bowsher v. Synar (1986)

  • The Gramm-Rudman-Hollings Deficit Control Act of 1985 was deemed unconstitutional for violating the separation of powers doctrine because it improperly granted powers to the Comptroller General, a position within the Legislative Branch, to execute budget/deficit laws, which is a power solely reserved for the Executive Branch.

Clinton v. City of New York (1998)

  • The Line Item Veto Act was deemed unconstitutional for violating the Presentment Clause by effectively allowing a President to amend any law that was put before them, a power solely reserved for the Legislative Branch.

(2) Functional Approach

Morrison v. Olson (1988)

  • The Ethics in Government Act of 1978 was not unconstitutional. Although it created a special court for federal ethics investigations and empowered the Attorney General to recommend appointments of an independent counsel to that court, this did not violate the Appointments Clause nor did it undermine the separation of powers doctrine since the law did not improperly interfere with the actions of the Executive Branch.

Mistretta v. United States (1989)

  • The Sentencing Reform Act of 1984 was not unconstitutional for violating the delegation of powers doctrine. Although it did create a United States Sentencing Commission within the Judicial Branch and delegated its authority to determine sentencing guidelines, Congress has the ability to delegate its powers to another branch so long as Congress establishes an "intelligible principle" with specific governing directives on how to act.