READINGS

Can the Separation of Powers Endure the Age of Muddled Thinking?

The Power of Separation: American Constitutionalism
and the Myth of the Legislative Veto

by Jessica Korn
(Princeton University Press, 1996) 166 pp.

Reviewed by Todd F. Gaziano

 

Jessica Korn’s book about the role the separation of powers plays in American constitutionalism is interesting despite its failure, in one important sense, to see the forest for the trees. The object of Korn’s study is the legislative veto, which Congress inserted into numerous statutes in the 1970s and early 1980s. Until the Supreme Court ruled that the legislative-veto provisions violated the constitutional separation of powers, those provisions allowed one or both houses of Congress and, in some cases, one or more committees of Congress to overrule a particular executive action that had been authorized by statute.

The Power of Separation presents fresh insights regarding the value of our constitutional structure and an originalist critique of twentieth-century reformers who want to modify the Framers’ original scheme. Yet, the book is ultimately disappointing because the author loses sight of the fact that the legislative veto was advanced to address a much more fundamental violation of the separation of powers, namely, the vast delegation of legislative and judicial powers to the executive branch. As a result, Korn’s intriguing argument that the political branches continue to share power in an effective way without the legislative veto almost entirely misses the importance of the constitutional separation of powers.

 

Korn’s Paradigm

Compared to the approach of many political scientists, Korn’s attempt to discern the Framers’ conception of the separation of powers is refreshing. Korn’s principal critique is leveled at the Progressives’ hostility to the separation of powers. Although Korn appears to share the Progressives’ vision and objectives, she disagrees with leading twentieth-century reformers, from Woodrow Wilson to Lloyd Cutler, who believe the separation of powers prevents the national government from responding forcefully to the social problems of modern society.

In the first two chapters, Korn contrasts the Wilsonian framework of analysis with her own understanding of the Framers’ intentions regarding the separation of powers. Korn argues that the Wilsonian objection to the separation of powers is based on the mistaken belief that the separation of powers was intended only to protect individual liberty by constraining the national government.

Korn argues that the separation of powers has, and was intended to have, a dual purpose. The first purpose is to prevent encroachments on individual liberty by a tyrannical government. The second purpose, which Korn asserts is ignored by Wilsonian reformers, is to promote effective and efficient government through specialization of functions and other adaptations that create a strong executive.

Korn argues that the Wilsonians were, like modern-day Progressives, wrong to challenge the constitutional separation of powers, because the second purpose of the separation of powers promotes the Progressives’ objectives of efficient government and good administration. In short, Korn attempts to present an originalist framework for modern government. Her conclusion is that the invalidation of the legislative veto was not significant because Congress has more effective means to influence executive actions. Korn is correct that in matters delegated to the president, the Framers provided for a strong unitary executive, or in Madison’s words, "energy in the executive." In matters delegated to the courts, they sought to strengthen the judges’ hands by insulating them from improper political pressure through lifetime tenure and protection against diminution in pay. Those decisions have tended to promote effective administration of the respective powers exercised by each branch.

 

Misunderstanding the Historical Context

Korn’s great leap of logic, however, is to treat the subjective concepts of "effective government" and "good administration" as touchstones for judging whether modern government structures satisfy the constitutional separation of powers. Korn’s attempt to harmonize the dual purpose of the separation of powers fails because the Framers’ design was not so accommodating. They did not want the national government or any of its branches to be efficient or strong in every sense. For instance, because the legislature was deemed the most dangerous branch, its structure and powers were designed to be relatively inefficient.

Not only does Korn fail to reconcile the dual purpose of the separation of powers, she seriously underestimates the primacy the Framers placed on its first purpose: to prevent encroachments on individual liberty by a tyrannical government. After all, the Framers thought that a single actor with authority to make law, prosecute violations of law, and stand in judgment over alleged violations was "the very definition of tyranny." In her description of Madison’s writings on the separation of powers in the Federalist Papers, Korn completely ignores one of his most important, Federalist No. 51, in which he explains that the separation of powers protects individual liberty by setting ambition against ambition and interest against interest. To the extent that Korn shortchanges the Framers’ attempts to divide and check government power to protect individual liberty, her analysis is only marginally more complete than that of the twentieth-century political theorists she criticizes.

The Framers’ concern regarding encroachments on individual liberty was so grave that the Constitution was ratified only after the Anti-Federalists secured a promise that a bill of rights would be added to further protect individual liberties. The Federalists, Madison included, did not disagree with the sentiment of the Anti-Federalists. Initially, the Federalists argued that a bill of rights was unnecessary because a government of limited powers could not encroach on individual liberties and might be counterproductive if the enumeration of certain rights were taken to exclude the protection of other unenumerated rights retained by the people. Madison’s eventual solution to this problem was to include the Ninth and Tenth Amendments in the Bill of Rights. As we now know, even that solution has proven ineffective.

With this larger context in mind, it is clearly destructive to constitutional government when the executive is "energetic" or "efficient" in actions that infringe on individual rights. It is equally destructive to constitutional government when an executive agency with a broad and vague legislative mandate promulgates its own rules of behavior, interprets and executes those rules, determines and prosecutes alleged violations, imposes fines and penalties for such violations, and even adjudicates challenges to its authority. And it is destructive to constitutional government when judges, who are insulated from public pressure, usurp the political branches’ power on legislative matters, such as the proper level of education spending and local taxation.

Korn’s description of the legislative function as deliberative and representative should have led her to the conclusion that the separation of powers is violated when executive agencies promulgate regulations, without representative deliberation, on whatever subjects Congress designates. Yet, Korn dispenses with any other attempt to discern the basic differences between executive, legislative, and judicial functions with a brief quote from Federalist No. 37, which states that no one has been able to define "with certainty" the "three great provinces—the legislative, executive, and judiciary." But Madison and the other Framers agreed on the branches’ essential "natures" as described by Montesquieu, Locke, and other popular theorists. More important, it is a rhetorical excuse to say that lines cannot be drawn "with certainty" when most points can easily be placed on one side of the line or the other.

Korn’s focus on the legislative veto’s effect obscures the fact that the very powers that the legislative veto was advanced to control—namely, many of the broad powers Congress had delegated to executive agencies or to "independent agencies"—were themselves violations of the separation of powers. Notwithstanding the modern jurisprudence on the subject, there is a meaningful difference between a statute that defines the standard of conduct expected of the citizenry, which requires only nonsubstantive rulemaking to implement, and a statute that essentially leaves the standard of conduct undefined.

Why Has the Separation of Powers Failed?

Despite Korn’s flawed application of separation of powers theory, she helps provide answers to an important question for students of modern government, namely, how did we get where we are today?

Part of the answer is that the Anti-Federalists were right: for all its value, structure alone does not guarantee that the national government will not encroach upon the States’ power and individual liberty. Another part of the answer is that the Wilsonian and New Deal reformers partially succeeded in their demand for constitutional amendments that led to greater centralized government. The Sixteenth Amendment (1913), which authorized direct taxation, and the Seventeenth Amendment (1913), which provided for the direct election of U.S. senators, greatly undermined federalism and the separation of powers. The acquiescence of the Supreme Court in the mid-1930s to improper delegations had the same effect.

But Korn also answers another part of the riddle of why Congress would give so much power away. The answer is quite simple: there was something for everyone in violating the original scheme. Korn demonstrates that the legislative veto was much less significant in controlling executive behavior than other tools at Congress’ disposal. Except for their oath to uphold the Constitution, why should members of Congress care which branch performs what functions as long as they have a significant share of the power? In fact, Korn points out that broad delegations allow members of Congress to show concern for a problem without alienating important constituencies. In other words, they are rewarded for abdicating responsibility. Ironically, Korn presents evidence that members of Congress have supported generic legislative-veto bills as a way of showing concern for over-regulation, even though they knew that serious oversight and other legislative controls would be more effective. Thus, Korn’s book helps make the case that members of Congress care about power, not from the Framers’ perspective of defending institutional integrity, but from the perspective of how power can be used to ensure reelection.

The result, however, is not a separation of powers but a sharing of powers. Although the branches of the national government have used their explicit powers under the Constitution to ensure a rough balance of power, such a power-sharing arrangement does not serve the same interests as a function-based separation of powers. In fact, it tends to serve the opposite interests. The case studies presented in The Power of Separation in support of the proposition that the twentieth-century legislative veto was never very important in the modern division of power are interesting, but they are irrelevant to the larger question of whether the separation of powers can endure.

 

Can the Separation of Powers Be Saved?

Although it is questionable whether anything will ever completely reinvigorate the constitutional separation of powers, there are some solutions short of constitutional amendment that would tend to restore the original scheme. In fact, the 104th Congress enacted a modest reform that is a step in the right direction. The Congressional Review Act of 1996 allows Congress to use expedited congressional procedures to pass joint resolutions disapproving of almost all executive agency regulatory actions. Those joint resolutions cannot be amended and, for a certain length of time, are not subject to a Senate filibuster or House-Senate conference. The CRA disapproval procedures are even broader than those provided for in generic legislative-veto bills, which Congress was unable to enact in the 1970s and 1980s. Although broader in scope, the joint resolutions of disapproval under the CRA must be presented to the president for his signature or veto consistent with the Supreme Court’s decision in Immigration and Naturalization Service v. Chadha (1983).

Admittedly, the CRA shares many of the shortcomings of the generic legislative veto in controlling executive behavior. But the ultimate goal of those who believe in the constitutional separation of powers is to revise the CRA to provide that certain executive actions previously authorized by statute cannot take effect until they are affirmatively enacted into law. Such a reform would conform to Chadha because it would merely amend numerous authorizing statutes. Of course, whatever one Congress enacts, a subsequent Congress can repeal. Nevertheless, several "nondelegation" bills were introduced in the 104th Congress, and the Congress held a congressional hearing on the issue.

From a public choice perspective, however, such legislation seems unlikely to be enacted without serious public pressure, given the motivations that all three branches have to continue business as usual. Perhaps it will take pressure equivalent to that exerted during the Progressive movement to reverse the unconstitutional trend. But ideas do matter, and in this age of muddled thinking about great constitutional questions, it is valuable to advance clear proposals that can be defended as constitutionally sound and necessary.

Todd F. Gaziano is chief counsel for the House Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs and formerly worked in the U.S. Department of Justice, Office of Legal Counsel.

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