How to Restore Separation of Powers
Editor’s Note: The following is the ninth in a series of articles in which Mr. Yoo and Mr. Phillips lay out a course of constitutional restoration, pointing out areas where the Supreme Court has driven the Constitution off its rails and the ways the current Court can put it back on track. The first entry is available here, the second here, the third here, the fourth here, the fifth here, the sixth here, the seventh here, and the eighth here.
The war between President Donald Trump and Special Counsel Robert Mueller rages on. Mueller continues to methodologically pick off Trump’s former allies: Michael Flynn, Paul Manafort, and Michael Cohen, among others. Yet no evidence has surfaced that indicates collusion with the Russians, much less a criminal conspiracy between Trump and Russia. In response, the president floats the idea of firing Mueller or pardoning himself while also maintaining his own innocence. Members of Congress, meanwhile, seek to resuscitate the independent-counsel law, which would protect Mueller from removal unless he commits a crime or violates DOJ regulations.
This political combat may have entertainment value, and it surely keeps profits up at the cable-news networks. But at the same time, it provides a critical lesson for the nation on the importance of the separation of powers. If the Mueller investigation ever gets to the Supreme Court, it will even give the new Roberts Court the opportunity to attack a serious cancer on our constitutional order. Special counsels not only disfigure the unity of the executive branch, but they represent a misguided approach to the separation of powers that has allowed the government to depart from the Framers’ vision, resulting in a loss of accountability and energy in the execution of the laws and a loss of liberty.
Those who support an independent special counsel out of fear of an unchecked president misunderstand the Framers’ design. The Constitution checks the president not from within the executive branch, but from without. The Founders understood they were creating a powerful executive. Although they had rebelled against King George III’s abuse of Crown powers, they soon understood that the weak national and state executives of the revolutionary and confederacy periods led to oppression, anarchy, and ineffectiveness. As Hamilton explained in The Federalist, “good government” requires “energy in the executive.” A vigorous president is essential to “the protection of the community from foreign attacks” and “the steady administration of the laws.”
The Constitution represented an effort to restore the executive’s traditional powers. The opening line of Article II of the Constitution declares that “The executive Power shall be vested in a President of the United States of America.” As Justice Antonin Scalia wrote in his finest opinion, his dissent in Morrison v. Olson, “This does not mean some of the executive power, but all of the executive power.” Chief among the traditional executive powers is the duty, vested in the president by the Constitution, of seeing that “the laws are faithfully executed,” protecting the nation’s security, and conducting foreign policy.
The Constitution recognizes not only the return of traditional executive powers to the president, but also his personal control of the executive branch. The Constitution concentrates all of the executive power in one person: the president. All other officials are subordinates who exist only to assist the president in carrying out his constitutional responsibilities. James Madison observed that the grant of executive power to the president gave him “the power of appointing, overseeing and controlling those who execute the laws.” Or, as the Supreme Court declared in Myers v. United States (1926), “it was natural, therefore, for those who framed our Constitution to regard the words ‘executive power’ as including” the power to remove executive officers. A president, therefore, has the right to direct all executive-agency officials on the performance of their duties and, if they refuse, to remove them from office.
This approach to the separation of powers makes clear the outcome of any fight over the special-counsel investigation. The Constitution makes the president head of the executive branch. No special counsel can operate independent of the president’s oversight, just as no cabinet member or prosecutor can. A regulation issued by a department (which provided the basis for Mueller’s appointment as special counsel) cannot limit the president’s constitutional power to remove officers. Otherwise, a mere cabinet officer could prevent future presidents from exercising the authorities of their office. When subordinate executive officials act at odds with presidential policy, they prevent him from carrying out his duty to execute the law in the manner he sees fit. No matter what a statute or regulation may say, the president may fire them immediately. Whether such a move is politically wise, the Constitution does not answer.
Just as the separation of powers requires that the president control the executive branch, it also recognizes that each branch operates independently of the others in the performance of its unique constitutional role. Neither the president nor Congress can dictate to the Judiciary how to decide cases or controversies under federal law. Neither the president nor the Supreme Court can seize from Congress the power of legislation. Thus, Article I of the Constitution vests only in Congress the “legislative powers herein granted,” and Article III vests the judicial power in the Supreme Court and in inferior tribunals established by Congress.
Thomas Jefferson believed “the leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other.” The Constitution allows only very specific ways for one branch to intrude into the affairs of another. It explicitly grants the president a limited veto, subject to override by two-thirds of both houses of Congress. The Constitution creates limited exceptions to the president’s exercise of the treaty and appointment powers by requiring Senate advice and consent – otherwise, the executive would enjoy both powers alone.
Progressives have long criticized this “formalist” approach to the separation of powers for restricting their ability to create new forms of government to handle problems unanticipated by the Founders. They usually have in mind agencies such as the Federal Reserve Bank, which seeks to shield interest rates from political manipulation by making its board independent, or the Federal Bureau of Investigation, which grants its director a ten-year term. But it has also led to hundreds of alphabet agencies, ranging from the Federal Communications Commission to the National Labor Relations Board to the Consumer Financial Protection Bureau, which regulate large swaths of the economy and society without having to obey the president or observe the Constitution’s limit on legislation to laws that survive both houses and receive presidential signature.
Unfortunately, even the Supreme Court of conservative Chief Justice William Rehnquist gave its blessing to this perversion of the Constitution’s original scheme. In Morrison v. Olson (1988), the Court upheld the original independent-prosecutor law, which prevents the president from removing the counsel except for cause. Even though all of the justices agreed that prosecution remained fundamentally an executive power, Chief Justice Rehnquist wrote for a 7-1 majority that this did not necessarily compel presidential control. According to the Court, Congress could shield the independent counsel from direct removal with a “for-cause” provision, which limited the president’s traditional discretion to fire any executive official for any reason. Acting through the attorney general, the president could still supervise the independent counsel to ensure he or she did not violate the law or DOJ policy. “We simply do not see how the President’s need to control the exercise of [the counsel’s] discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.” Outweighing any intrusion into presidential power was Congress’s need to advance an important public purpose: to solve the conflict of interest inherent when federal law enforcement investigated those at the upper rungs of government. The following year, in Mistretta v. United States (1989), the Rehnquist Court upheld an even more misbegotten creature, the U.S. Sentencing Commission, which claimed the power to set sentencing factors for every federal criminal trial in the nation.
Justice Brett Kavanaugh may finally provide enough votes on the Supreme Court to overturn this “functionalist” approach to the separation of powers. While it has yet to directly confront the Rehnquist Court’s wayward turn on the separation of powers, a bare majority of the Roberts Court already suspects newfangled inventions of government. In 2010, for example, the Court struck down the Public Company Accounting Oversight Board because its members were both appointed and protected from removal by the Securities and Exchange Commission. Even though that might be constitutional under Morrison, it violated the separation of powers, in Roberts’s view, because the president cannot even remove the SEC’s members for cause – in other words, the PCAOB’s members were doubly insulated from presidential control.
Justice Kavanaugh’s record suggests he would eagerly join the conservative majority’s early steps to reimpose the original separation of powers. In a 2010 article in the Harvard Law Review, he attacked the Chevron doctrine, a Supreme Court ruling that requires judges to defer to an agency’s interpretation of ambiguous laws, as “an atextual invention.” Instead of deferring to agency experts, Kavanaugh argues, courts should closely scrutinize whether their regulations satisfy Congress’s directives. Kavanaugh has also suggested that the Constitution limits congressional power to delegate its legislative responsibilities to unaccountable independent bureaucrats. For example, Congress cannot simply order the EPA to clean the air without specifying why, how, or at what cost.
Kavanaugh’s criticism of CFPB may reveal the future. The most egregious of the independent agencies, the CFPB has no commission or board, only a single director. Established after the 2008 recession, it draws its funds from the Federal Reserve, which prevents congressional appropriators from controlling it. In a dissenting opinion as a lower-court judge, Kavanaugh argued that Congress had vested too much unfettered, unconstitutional power in a single unaccountable officer. If Kavanaugh continues to question the constitutionality of agencies that vest too much power in unaccountable officers, the Supreme Court might begin the work of eliminating the independent agencies.
Justice Neil Gorsuch, President Trump’s first appointment to the Court, would no doubt join Kavanaugh. As Gorsuch observed while a judge on the Tenth Circuit, “this allocation of different sorts of powers to different sorts of decision-makers was no accident.” He explained:
To adapt the law to changing circumstances, the founders thought, the collective wisdom of the people’s representatives is needed. To faithfully execute the laws often demands the sort of vigor hard to find in management-by-committee. And to resolve cases and controversies over past events calls for neutral decision-makers who will apply the law as it is, not as they wish it to be.
Unless Chief Justice Roberts were to suddenly veer to the liberal side of the Court, reversing the course he set out for himself in the PCAOB case, the additions of Gorsuch and Kavanaugh should lead to the return of the separation of powers to our constitutional law. The separation of powers is far more than an obsolete theory of government or a protection against tyrannical executives. Its most fundamental and important purpose and consequence is often overlooked or misunderstood. Justice Scalia loved to say that “every tinhorn dictator” has a beautiful bill of rights, but it’s the separation of powers that protects liberty. If, as Blackstone observed, the right to a trial by jury was the palladium of English liberty, then the palladium of American liberty is the separation of powers.
The original Constitution included very few rights, but not because the Founders did not seek to protect liberty. Far from it. Rather, they understood that tyranny spreads when power is concentrated, and that freedom flourishes only when power is diffused. If the executive subsumes the judicial power, for instance, the judiciary will be unwilling or unable to protect individual liberty against executive incursions. If any one branch could make the law, enforce the law, and interpret the law, the temptation to become a philosopher king over the sovereign people would be too great. For this reason, the Federalists who drafted and fought for ratification of the original Constitution thought a Bill of Rights unnecessary and ineffectual.
Only by pitting ambition against ambition, branch against branch, by giving branches their own spheres of power that they could defend and the ability to check the other branches, could the Constitution preserve liberty in the long run. Thus, power is parsed out: The president (and his subordinates) exercise the executive power, Congress exercises the legislative power, and the Supreme Court and “inferior” federal courts exercise the judicial power. And federalism adds even more protection. So “in the compound republic of America,” James Madison observed in The Federalist No. 51, “the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.” As a result, “a double security rises to the rights of the people.”
But the separation of the national government’s powers across different branches does not mean isolating those branches. For instance, Congress can check the president’s executive power by refusing to fund it, or in the foreign-affairs realm, by refusing to ratify treaties. Or the Senate can check the president’s power to staff the executive branch by refusing to give its consent to officers who need Senate consent. The president can check Congress’s exercise of legislative power by vetoing any legislation, which requires a two-thirds congressional majority to override. And the judiciary can check the other branches by declaring their actions in violation of the law, with the other branches able to check the judiciary by legislatively overriding judicial decisions or through gradually changing the composition of the courts via appointments.
There are reasons we have wandered from the protective barrier of the separation of powers. The Supreme Court’s unwillingness to challenge the president and Congress’s collusion in creating the administrative state, for example. Another is that the branches have given up many of their constitutional prerogatives to check each other. Congress refuses to use its power of the purse, or passes legislation without even attempting to debate and determine whether it is constitutional, instead leaving it up to the courts to figure that out — a far cry from the practice of the first Congresses. Similarly, the president signs bills that he doubts are constitutional, content instead to outsource his constitutional judgment to the judiciary. And the judiciary will sometimes (though not often) bend over backwards to defer to the other branches. This is a clear departure from the Constitution’s original design in which, as Madison observed in The Federalist No. 51, “ambition [was] made to counteract ambition.”
Relatedly, the branches, most often Congress, are content to let others do their work. Most laws enacted these days are not statutes, but regulations promulgated by the untold number of executive agencies that oversee and direct nearly every facet of American life. Political scientists posit that the main goal for members of Congress is to win re-election. Legislators do not increase their odds in the next electoral cycle if they vote on controversial issues that enflame 40 percent of the electorate no matter what they do, or if they choose difficult, scientific, technical, or economic policies that might prove mistaken. They are better off delegating those choices to the agencies or the courts, concentrating instead on bringing federal dollars back to the home district, and blaming the president when things go wrong. A Supreme Court that affords agencies greater deference and more freedoms will only exacerbate the failure of the Constitution’s original self-checking mechanisms. In sum, every branch seems to flee from President Harry Truman’s famous aphorism “The buck stops here.” And this results in the republic slouching toward the very thing the Founding generation feared: an “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,” which “may justly be pronounced the very definition of tyranny.”
Restoring the separation of powers, in the law as well as in the minds of the government and of the people, would avoid the need for some of the most controversial cases that have come before the Supreme Court in recent years. Take religious-liberty cases such as Hobby Lobby and Little Sisters of the Poor — both were challenges to the regulations passed by agencies, not laws passed by Congress. Or this term’s Gundy v. United States, in which Congress had delegated to the attorney general the question of whether the law required certain sex offenders to register with the government. Imagine — the branch of government authorized to enforce the law is the same branch permitted to determine the content of the law. As Montesquieu long ago warned, “When the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty.”
In short, the separation of powers is not just about the separation of powers. It’s also about religious liberty, free speech, due process, and every other liberty the Constitution protects and all those not enumerated within its text. We have a Bill of Rights Day. But to really celebrate the liberty the Constitution provides, maybe we should have a Separation of Powers Day. And the Court, which has done much of the damage to the separation of powers over the years, can begin restoring that most fundamental part of the Constitution.
President Trump’s vigorous attacks on Mueller’s investigation, including threatening to fire the special counsel, may harm his own political self-interest. But in flexing his executive muscle, the president is defending the Constitution’s original meaning and its liberty-protecting separation of powers. And that’s something, whatever their politics, all Americans should welcome.
— John Yoo is the Emanuel S. Heller Professor of Law at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. James C. Phillips is an attorney in private practice and a non-resident fellow at Stanford Law School’s Constitutional Law Center.
