The separation of powers in the U.S. Constitution takes minutes to learn and a lifetime to master. It is simple to explain how the Constitution separates the powers of government. By virtue of the vesting clauses (provisions in the Constitution that grant authority to the main branches of government) in the first three articles, the Constitution locates the legislative, executive, and judicial branches of government in three separate institutions. The design is straightforward: Congress makes the law, the Executive executes the law, and the Judiciary interprets and applies the law. As simple as this appears in theory, in practice it is very difficult both to define and to enforce the separation of powers. As James Madison wrote in Federalist 37 when reflecting upon the work of the Constitutional Convention:

Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces, the legislative, executive, and judiciary. . . .  Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science.

Even Madison believed that it was impossible to define with certainty which powers belong to which branches. The difficulties in defining the boundaries of the legislative, executive, and judicial branches of government is the subject of this collection. The Constitution separates the powers of government, yet it also partially blends them by bestowing some legislative power in the executive (e.g., the veto), and some executive power in Congress (e.g., the Senate’s power to advise and consent to the appointment of primary executive officers), while giving Congress and the president some influence over the courts (the power to appoint judges). Furthermore, the powers themselves are not always easy to define. The debates in many of the documents included here reflect the ambiguity of the boundaries between the three powers of government. For instance, is the executive branch engaging in legislation when it formulates policy for implementing a congressional statute (See A.L.A. Schechter Poultry Corporation v. United States)? Does Congress have the power to define the limits on the president’s authority to remove officers who are employed by departments or agencies that the legislature created (See Debate in Congress over the Removal Power, Speech on the Appointing and Removing Power, Myers v. United States, Humphrey’s Executor v. United States)? Does the judiciary usurp executive power when it attempts to enforce its own decisions by appointing a prosecutor (See Mistretta v. United States, William Jefferson Clinton, Petitioner v. Paula Corbin Jones)? Despite the simple blueprint provided by the Constitution, the subsequent debates over the implications of this constitutional structure illustrate Madison’s prophetic concerns that “no skill in the science of government has yet been able to discriminate and define . . . its three great provinces.”

Separation of Powers and the American Founding

For the Founding generation, the separation of the powers was the sine qua non of good government. Almost no one at the time would have disagreed with Publius’ assertion in Federalist 47  that “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.” Yet from the very beginning there was disagreement over the Constitution’s scheme. The Antifederalists accused the framers of the Constitution of having blended the powers: “The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.” Publius defended the fact that power is “blended” in terms of what we think of as “checks and balances.” To merely write down the separation of powers on paper and do no more is to trust “parchment barriers” to keep power in place. However, parchment barriers by themselves would not be effective. In Federalist 51, Madison explained the need for such auxiliary precautions:

The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

Putting Separation of Powers into Practice

As Madison anticipated, the adoption of the Constitution did not settle the question of how to “define” the precise boundaries between the three branches of government. The members of the respective branches had to work out those lines of division in practice. This collection of documents covers four main areas of debate over the course of American history that raise fundamental questions regarding the separation of powers. While the framers separated the powers of government into three separate branches, the Constitution’s system of checks and balances blends these powers in such a way that the division of authority is less clear in practice. Article I of the Constitution vests the legislative power in Congress. But the Constitution gives the president two important roles in the legislative process: the veto power and the duty to make legislative recommendations to Congress. As a result, the president’s role in the process of making law continued to be a contested issue, with serious implications for the separation of powers. Second, it remained to be decided what role Congress would play in the execution of the law. While Article II vests the power to execute the law in the president, Congress has the authority to create and fund the executive offices, and the Senate takes a role in approving principal executive officers. In practice, this raised the question of which branch had the final authority over how laws were executed. Third, the Constitution allocates the power in foreign affairs in both the legislative and the executive branches, leading to contests between the branches over the exercise of these powers. As in the previous topics, this distribution of power also raised the question of which branch possessed the final authority over foreign affairs. Finally, the Supreme Court plays a critical role in maintaining the separation of powers by serving as an umpire in the contests between the legislature and the executive. However, the Court’s ability to function in this role extends only so far as others are willing to recognize its authority. While the Constitution establishes the Court’s power in Article III, the scope and contours of its authority had to be established by subsequent decisions.

Separation of Powers and Lawmaking

While the Constitution vests the legislative power in Congress, the executive’s influence on the process of legislation has ebbed and flowed over the course of American history. During its first few years, Congress dissolved its House Ways and Means Committee, preferring instead to rely on the reports of Secretary of the Treasury Alexander Hamilton to set the legislative agenda. Many members wondered whether the legislature had ceded its lawmaking authority to the executive branch in doing so (See House Debate on the Influence of Alexander Hamilton). The Jeffersonians likened the Federalists in the executive branch to the practices of the British monarchy. This concern over legislatures delegating their powers to the executive branch even motivated colonial governor George Clinton to veto a bill creating a council that could adopt laws when the legislature was out of session. While the balance of power temporarily shifted back to Congress with Jefferson’s defeat of the Federalists in 1800, the policies of Andrew Jackson once again raised the struggle to define the boundaries between the legislature and the executive in lawmaking (See Veto Message Regarding the Bank of the United States, Speech on the Presidential Veto of the Bank Bill, Message of Protest to the Senate, Speech on the Appointing and Removing Power). The formation of the Whig Party (a party which in England defended Parliament from the monarchy) in response to Jackson’s aggressive interpretation of presidential authority reflected deep concerns over executive usurpation of legislative power (see First Inaugural Address (1841)). The twentieth century witnessed the rise of an even more legislatively proactive presidency. Presidents did not only threaten to veto bills they did not like, but actively intervened on behalf of legislation that they did like. Taking advantage of their access to a national constituency, presidents in the twentieth century attempted to cultivate popular support for certain legislative initiatives and to bring pressure on Congress to pass them. This type of popular leadership, with the president serving as the “steward of the people” (See Theodore Roosevelt: An Autobiography), satisfied Progressives critical of the separation of powers. As Woodrow Wilson explained it: “There can be no successful government without leadership or without the intimate, almost instinctive, coordination of the organs of life and action.” Political leadership, according to Wilson and other Progressives, had been fettered by the division of powers imposed by the Constitution. During the early years of American history, there was very little need for the government to intervene in society, but modern industrialized society required a more active government and stronger leadership. This vision of popular executive leadership was most effectively put into practice when presidents began using their control of the budget to influence the legislative process and set the legislative agenda (see Report of the President’s Committee on Administrative Management). The Office of Management and Budget created during the Nixon administration in 1970 allowed the president to overshadow Congress in fiscal and economic matters. Though Congress fought back by resuming control of certain parts of the budgeting process via the Congressional Budget and Impoundment Control Act and the creation of the Congressional Budget Office, the act has been ineffective in checking this growth of executive power. In addition to the president’s new direct role in the legislative process, the rise of an enormous administrative state (executive agencies with the power to create, adjudicate, and enforce their own regulatory rules) shifted many of the duties that used to belong to the legislature to the executive branch. Progressives believed that lawmaking under the separation of powers had proven inefficient in regulating modern industrial innovation; such regulation required experts armed with broad discretionary powers who understood the issues and could act quickly. FDR’s National Industrial Recovery Act (NIRA) in 1933 reflected the culmination of this Progressive vision of administrative policymaking. Under the NIRA, the federal government employed trade commissions composed of experts representing all sectors of industry to create codes of fair competition, which were then codified by the regulatory agencies and put into effect by executive order (See A. L. A. Schechter Poultry Corporation v. United States). While the Supreme Court struck down the NIRA in 1935 as a violation of the nondelegation doctrine (which holds that the legislature cannot delegate its lawmaking authority to another institution), Congress continued to delegate much of its responsibility for policymaking to various agencies across the administrative landscape, and the Court ultimately accepted these delegations (see William Clinton, President of the United States, et al., Appellants v. City of New York). Expert administrators eventually displaced the need for careful and prolonged congressional deliberation over public policy. Congress began to pass laws that provided general guidance but left the details to be sorted out by executive branch agencies through their rule-making. While Congress has attempted to create new institutional mechanisms to control the administration, including the legislative veto (a procedure whereby Congress passes a resolution suspending or nullifying an executive action), its efforts have often come into conflict with the Constitution (See Morrison v. Olson). Concerns about the rise of an administrative state not controlled by Congress continue today. One U.S. senator recently lamented in his inaugural speech to the chamber that the administrative state has resulted in “legislative atrophy” and “executive overreach” (See Executive Overreach and the Separation of Powers). While the framers of the Constitution expected Congress to be the most important branch of government, Americans today look to the president to make policy and solve problems.

Separation of Powers and the Execution of Law

Presidents’ efforts to control the legislative process have been matched only by Congress’ efforts to control the execution of law. The debate over who controls the administration of law arose in the First Congress, which was tasked with creating the original cabinet offices. Given that the Constitution only provided a procedure for appointing the officers, Congress had to grapple with the issue of who should have the removal power—the power to remove executive officials from office (See Debate in Congress over the Removal Power). In the famous “Decision of 1789,” the First Congress decided that the president would have the power to remove the secretary of foreign affairs, though there was no consensus regarding whether Congress should be involved in the decision. Despite this lack of consensus, the Decision of 1789 was soon interpreted to mean that the president had the constitutional authority to remove executive officers. That view held for the most part until Andrew Jackson’s far more potent and political presidency. Jackson introduced the system of rotation in office in the executive branch (in which executive officers held office for a limited period rather than for their entire career), thereby turning the selection of his administration’s appointees into a potent tool for patronage. When Jackson fired his secretary of the Treasury (See Message of Protest to the Senate) for refusing to execute a controversial order to remove funds from the federal bank, Congress responded by censuring the president, arguing among other things that the executive lacked the authority to remove an executive officer without input from Congress (See Speech on the Appointing and Removing Power). The case for congressional control over the removal power ultimately culminated in the passage of the Tenure of Office Act of 1867 by a Republican Congress dissatisfied with President Andrew Johnson’s conduct of Reconstruction. (Johnson also fired, or tried to fire, a cabinet member.) The act forbade the president from removing civil officers without the Senate’s consent. The Tenure of Office Act had been repealed by 1887, but the question of removal remained unsettled, as illustrated by the fact that Congress left intact the removal limitations on certain kinds of postmasters. When Woodrow Wilson fired Oregon postmaster Frank Myers in 1920, the debate over the control of the administration moved to the Supreme Court. Myers v. United States (1926) was a landmark decision in which Chief Justice William Howard Taft wrote the opinion for the Court. Following an exhaustive history of the removal power debate in American politics, including the Decision of 1789, the opinion ultimately sided with the executive on the removal power question. Just a few years later, however, the Court significantly qualified its decision in Myers with an opinion that favored Congress’ ability to place limitations on removal. In Humphrey’s Executor v. United States (1935), the Court recognized a special place in the administration for experts to implement regulatory rules free from the political influence of the president. In this case, the Court concluded that the Federal Trade Commission was not an executive agency, but a quasi-legislative, quasi-judicial body entrusted with duties that required trained expert judgment shielded from political pressure. On these grounds, the Court gave its blessing to the concept of the independent regulatory commission—an executive agency run by a board of commissioners who serve for a determined length of time rather than at the pleasure of the president. Following Humphrey’s, independent regulatory commissions began to proliferate throughout the bureaucracy. The existence of these independent commissions placed a serious limitation on the president’s ability to make policy and deliver on campaign promises. Franklin Roosevelt’s Brownlow Committee called the independent commissions a “headless fourth branch of government” over which neither the president nor Congress had much control. The Brownlow Committee proposed to reorganize these agencies under the president’s control and to expand dramatically the president’s personal White House staff to control and manage the growing bureaucracy, but Roosevelt failed to get these changes through Congress. Finally, in Morrison v. Olson (1989) the Court even sustained a congressional limit on the executive’s power to remove an explicitly executive officer—the independent prosecutor. Most recently, the removal power has begun to shift back to the executive. In 1999, Congress let the office of independent counsel expire following the controversial political exploitation of the office during Kenneth Starr’s investigation of President Bill Clinton. Over the last few years, the Court has also begun to question the constitutionality of some independent regulatory agencies.

Separation of Powers and Foreign Affairs

The balance of power in foreign affairs has followed much the same course as in the areas discussed above. Known in the past as the “federative power” (political philosopher John Locke’s term to describe the powers related to foreign affairs), many today wrongly assume that foreign affairs is exclusively the president’s domain. According to the Constitution, Congress and the president share the foreign affairs power, with each branch given a certain degree of authority in a manner best suited to its function. A debate over the respective authority of the branches arose during the Washington administration concerning the issue of who had the power to declare neutrality in the face of hostilities between France and England in 1793. Although Jefferson was in the opposition in 1793, he too initiated bold unilateral actions in foreign affairs during his own presidency. But no period in American history required more controversial actions on the part of the commander in chief than the Civil War. Convinced that the war effort against the Southern insurrection depended upon a fragile coalition in the North, President Abraham Lincoln suspended the writ of habeas corpus by executive proclamation. Though he eventually sought congressional approval for his executive decisions during the secession crisis of 1861, Lincoln’s justification for having exercised the power in the first place made it clear that he regarded the war power as a prerogative of the president. America’s growing global presence over the course of the twentieth century, which began with Theodore Roosevelt’s interventions in Latin America, made further contests over foreign affairs between the branches inevitable. America’s international obligations became far more extensive during the Cold War as the United States sought to halt postwar Soviet expansion. Presidents increasingly relied on unilateral action to deal with international conflicts. The revelation of Nixon’s clandestine bombing of communist base camps in Cambodia brought these issues between Congress and the president to a head when Congress struck back with the War Powers Resolution in 1973. Nixon vetoed the act (See Speech on the Termination of the Sino-American Mutual Defense Treaty), but Congress, unwilling to tolerate any further unilateral expansion of the president’s war power, overrode the veto. The act turned out to be a pyrrhic victory because almost every subsequent president has ignored its provisions. During the War on Terror, President George W. Bush, faced with proposed legislation that would prevent further use of coercive interrogation techniques on detainees, issued a signing statement indicating that his office might choose to ignore the legislation as an intrusion upon the president’s Article II powers.

Separation of Powers and the Courts

Overseeing much of the conflict between the legislative and executive powers, the Supreme Court has sometimes functioned as a referee and at other times as a competitor with the other two branches. When asked in 1793 by Secretary of State Thomas Jefferson to offer an advisory opinion on a delicate matter involving international law, the Court refused on the grounds that it served a passive role as an adjudicatory, not a policymaking, body. Similar restraint has given the Court a reputation for objectivity that allows it to function as an effective umpire. But the Court has nevertheless been the object of attacks from powerful presidents. Andrew Jackson more than once ignored the Court’s dicta (i.e., incidental opinions that do not constitute binding legal precedent) and called into question the authority of its precedents (see Veto Message Regarding the Bank of the United States). Having neither “purse nor sword,” the Court was powerless to put up a fight. By eliminating the legal liability of revenue collectors in Cary v. Curtis, Chief Justice Roger Taney (1777–1864), one of Jackson’s most notable appointees, effectively made the decisions of executive officers unreviewable by the courts. Justice Joseph Story issued a scathing dissent in the decision. In an interesting reversal, Taney much later attempted to prevent President Lincoln from using a court-martial to try private individuals (Ex parte Merryman), but Lincoln simply ignored the Court’s decision. Only after the Civil War, in Ex parte Milligan, did the Court rebuke the executive for what it perceived to be a violation of individual rights. By the middle of the 1870s, judicial review of the legality of executive decisions was back on the rise, as illustrated by Johnson v. Towsley, in which the courts asserted the power to review decisions by the Land Office, an executive agency responsible for distributing federal land to citizens. Conflict between the judicial branch and the legislative and executive branches was by no means only a nineteenth-century issue. Near the beginning of the twentieth century, the Court successfully resisted many innovations under the New Deal that it felt transgressed the boundaries between the branches (See A. L. A. Schechter Poultry Corporation v. United States). Whatever one might think of the merits of those decisions, they did illustrate that the Court can serve as a formidable obstacle against legislative experiments that blur the lines separating the powers of government. However, presidents can use (and have used) their popularity to pressure the courts. In the most famous example, FDR proposed adding members to the Supreme Court in response to its decisions striking down several important New Deal statutes. By the later twentieth century, the Court itself had become a battleground for the debates over the American constitutional tradition that followed in the wake of the Progressive movement. Contemporary scholars refer to the division as the debate between “the formalist school” and “the functionalist school.” Formalists (e.g., Justice Burger in Immigration and Naturalization Service v. Chadha) adhere to traditional notions of separation of powers in which the legislative, executive, and judicial powers belong exclusively to the respective branches unless the text of the Constitution explicitly says otherwise. Functionalists, by contrast, emphasize the interdependence among the branches and the need for cooperation in a way similar to Woodrow Wilson’s case for the Darwinian evolution of the branches in Constitutional Government. The functionalist position is open to greater experimentation and flexibility, as illustrated by the opinions of Justice William Rehnquist in Morrison v. Olson and Justice Harry Blackmun in Mistretta v. United States.