CITES BY TOPIC:  separation of powers
Black's Law Dictionary, Sixth Edition, p. 1365:

"Separation of powers.  The governments of the states and the United States are divided into three departments or branches: the legislative, which is empowered to make laws, the executive which is required to carry out the laws, and the judicial which is charged with interpreting the laws and adjudicating disputes under the laws.  Under this constitutional doctrine of "separation of powers," one branch is not permitted to encroach on the domain or exercise the powers of another branch.  See U.S. Constitution, Articles I-III.  See also Power (Constitutional Powers)."

[Black's Law Dictionary, Sixth Edition, p. 1365]


Government Conspiracy to Destroy the Separation of Powers, Form #05.023 (OFFSITE LINK)- SEDM


Separation of Powers Article (from Great IRS Hoax, section 4.3.4, ver. 3.22)


Thomas Jefferson on the Requirement for Separation of Powers


Great IRS Hoax, Section 4.3.6:

The foundation of our republican form of government is the notion of "separation of powers". In the legal field, this is called "the separation of powers doctrine". The U.S. Supreme Court confirmed the purpose of the separation of powers doctrine in the case of U.S. v. Lopez; 514 U.S. 549 (1995): :

We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U.S.  Const., Art. I, 8. As James Madison wrote, "[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority "was adopted by the Framers to ensure protection of our fundamental liberties." Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (internal quotation marks omitted). "Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." Ibid.

The founders believed that men were inherently corrupt. They believed that where power concentrates, so does tyranny.  To prevent tyranny, they separated our government in two distinct ways:

1. State v. Federal separation.

2. Separation of powers within the above two distinct governments:

2.1. Executive

2.2. Legislative

2.3. Judicial

They put the states in competition with each other for citizens and commerce, so that when one state became two oppressive by having taxes that were too high or too many laws, people would move to a better state where they had more freedom and lower taxes. This would ensure that the states that were most oppressive would have the fewest citizens and the worst economy. They also put the federal government in charge of foreign commerce only, so that the only way it could increase its revenues was to promote, not discourage or restrict, commerce with foreign nations. If the taxes on foreign commerce were too high, people would simply buy more domestic goods and the federal government would shrink. It was naturally self-balancing.

The founders also put branches within each government in competition with each other: Executive, Legislative, and  Judicial. They ensured that each branch had distinct functions that could not be delegated to another branch of government. Each branch would then jealously guard its power and jurisdiction to ensure that it was not invaded or undermined by the other branch. This ensured that there would always be a balance of powers so that the system was self-regulating and the balance of powers would be maintained.

Thomas Jefferson, one of our most important founding fathers, confirmed the purpose of the separation of powers between  state and federal governments. He confirmed that the purpose of the federal government was to regulate commerce and interaction with foreign countries and that it never had the authority or jurisdiction to invade within states, either through legislation or through police powers:

"The extent of our country was so great, and its former division into distinct States so established, that we thought it better to confederate [U.S. government] as to foreign affairs only. Every State retained its self- government in domestic matters, as better qualified to direct them to the good and satisfaction of their citizens, than a general government so distant from its remoter citizens and so little familiar with the local  peculiarities of the different parts." --Thomas Jefferson to A. Coray, 1823. ME 15:483

"I believe the States can best govern our home concerns, and the General Government our foreign ones." --  Thomas Jefferson to William Johnson, 1823. ME 15:450

"My general plan [for the federal government] would be, to make the States one as to everything connected  with foreign nations, and several as to everything purely domestic." --Thomas Jefferson to Edward Carrington, 1787. ME 6:227 

"Distinct States, amalgamated into one as to their foreign concerns, but single and independent as to their  internal administration, regularly organized with a legislature and governor resting on the choice of the people and enlightened by a free press, can never be so fascinated by the arts of one man as to submit voluntarily to his usurpation. Nor can they be constrained to it by any force he can possess. While that may paralyze the single State in which it happens to be encamped, [the] others, spread over a country of two thousand miles diameter, rise up on every side, ready organized for deliberation by a constitutional legislature and for action by their governor, constitutionally the commander of the militia of the State, that is to say, of every man in it able to bear arms." --Thomas Jefferson to A. L. C. Destutt de Tracy, 1811. ME 13:19

You can read the above quotes from Thomas Jefferson on our website at:

http://famguardian.org/Subjects/Politics/ThomasJefferson/jeff1050.htm

The interesting thing to note about the above quotes from Jefferson, is that our system of federal taxation is entirely consistent with the above statements. For instance, Article 1, Section 8, Clause 3 of the U.S. Constitution limits federal taxation powers to commerce with foreign nations and between, but not within, states. 26 CFR 1.861-8(f) also reveals that the only specific sources of "gross income" that are taxable under Subtitle A of the Internal Revenue Code are those associated with Domestic International Sales Corporations (DISC) and Foreign Sales Corporations (FSCs), both of whom are involved in commerce with foreign countries only.

Those federal politicians, legislators, and judges intent on becoming tyrants or expanding their power must break down the  separation of powers established by the founders above if they want to concentrate power or take away powers from the states. They have done this over the years mainly by the following means, which we devote nearly the entirety of this book to exposing and explaining:

1. Confusing the definitions of words to make the separation of powers between state and federal unclear. For instance:

1.1. Confusing the definitions of "state" and "State".

1.2. Confusing the definition of "United States"

1.3. Not defining the word "foreign" in the Internal Revenue Code

 

2. Obfuscating the distinctions between "U.S. citizen" and "U.S. national" status. "U.S. citizens" were born in the federal  United States while "U.S. nationals" were born in states of the Union.

 

3. Refusing to acknowledge or recognize the limits of federal jurisdiction within federal courtrooms. 

 

4. Suppressing any evidence or debate in courtrooms on the nature of separation of powers.

 

5. Using the proceeds of extorted or illegally-collected federal income tax revenues to break down the separation of  powers between states and the federal government. For instance, depriving states of federal revenues who do not do what the federal government wants them to do. This is called "privilege-induced slavery". We explain later in section 6.1 that this kind of artifice has been thoroughly exploited to create a de facto government that is completely at odds with the de jure separation of powers required by our Constitution.

 

6. Discrediting and slandering legal professionals who bring attention to the separation of powers between state and federal jurisdiction by calling them "frivolous" or "incompetent" and/or pulling their license to practice law. The framing of Congressman Traficant and Congressman George Hansen are examples of this kind of political persecution by abusing the legal system as a tool of persecution.

 

7. Paying people in the legal publishing business to obfuscate the definitions of words. We show later in section 6.8 several instances of such corruption.

 

8. Making the laws found in the U.S. Code so confusing that the average American can’t rely on his own understanding of them to know what the law requires. Instead, he must compelled to rely on a high-paid expert, such as a judge or lawyer, both of whom have a conflict of interest in expanding their power, to say what the law really requires. This transforms our society from a "society of laws and not men" into a "society of men".


New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d. 120 (1992):

The United States proposes three alternative views of the constitutional line separating state and federal authority. While each view concedes that Congress generally may not compel state governments to regulate pursuant to federal direction, each purports to find a limited domain in which such coercion is permitted by the Constitution.

First, the United States argues that the Constitution's prohibition of congressional directives to state governments can be overcome where the federal interest is sufficiently important to justify state submission. This argument contains a kernel of truth: in determining whether the Tenth Amendment limits the ability of Congress to subject state governments to generally applicable laws, the Court has, in some cases, stated that it will evaluate the strength of federal interests in light of the degree to which such laws would prevent the State from functioning as a sovereign; that is, the extent to which such generally applicable laws would impede a state government's responsibility to represent and be accountable to the citizens of the State. See, e.g., EEOC v. [505 U.S. 144, 178]   Wyoming, 460 U.S., at 242 , n. 17; Transportation Union v. Long Island R. Co., 455 U.S., at 684 , n. 9; National League of Cities v. Usery, 426 U.S., at 853 . The Court has more recently departed from this approach. See, e.g., South Carolina v. Baker, 485 U.S., at 512 -513; Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S., at 556 -557. But whether or not a particularly strong federal interest enables Congress to bring state governments within the orbit of generally applicable federal regulation, no Member of the Court has ever suggested that such a federal interest would enable Congress to command a state government to enact state regulation. No matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require the States to regulate. The Constitution instead gives Congress the authority to regulate matters directly, and to pre-empt contrary state regulation. Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents.

Second, the United States argues that the Constitution does, in some circumstances, permit federal directives to state governments. Various cases are cited for this proposition, but none support it. Some of these cases discuss the well established power of Congress to pass laws enforceable in state courts. See Testa v. Katt, 330 U.S. 386 (1947); Palmore v. United States, 411 U.S. 389, 402 (1973); see also Second Employers' Liability Cases, 223 U.S. 1, 57 (1912); Claflin v. Houseman, 93 U.S. 130, 136 -137 (1876). These cases involve no more than an application of the Supremacy Clause's provision that federal law "shall be the supreme Law of the Land," enforceable in every State. More to the point, all involve congressional regulation of individuals, not congressional requirements that States regulate. Federal statutes enforceable in state courts do, in a sense, direct state judges to enforce them, but this sort of federal "direction" of state judges is mandated by the text of the Supremacy [505 U.S. 144, 179]   Clause. No comparable constitutional provision authorizes Congress to command state legislatures to legislate.

Additional cases cited by the United States discuss the power of federal courts to order state officials to comply with federal law. See Puerto Rico v. Branstad, 483 U.S. 219, 228 (1987); Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 695 (1979); Illinois v. City of Milwaukee, 406 U.S. 91, 106 -108 (1972); see also Cooper v. Aaron, 358 U.S. 1, 18 -19 (1958); Brown v. Board of Education, 349 U.S. 294, 300 (1955); Ex parte Young, 209 U.S. 123, 155 -156 (1908). Again, however, the text of the Constitution plainly confers this authority on the federal courts, the "judicial Power" of which "shall extend to all Cases, in Law and Equity, arising under this Constitution, [and] the Laws of the United States . . .; [and] to Controversies between two or more States; [and] between a State and Citizens of another State." U.S. Const., Art. III, 2. The Constitution contains no analogous grant of authority to Congress. Moreover, the Supremacy Clause makes federal law paramount over the contrary positions of state officials; the power of federal courts to enforce federal law thus presupposes some authority to order state officials to comply. See Puerto Rico v. Branstad, supra, at 227-228 (overruling Kentucky v. Dennison, 24 How. 66 (1861)).

In sum, the cases relied upon by the United States hold only that federal law is enforceable in state courts, and that federal courts may, in proper circumstances, order state officials to comply with federal law, propositions that by no means imply any authority on the part of Congress to mandate state regulation.

Third, the United States, supported by the three sited regional compacts as amici, argues that the Constitution envisions a role for Congress as an arbiter of interstate disputes. The United States observes that federal courts, and this Court in particular, have frequently resolved conflicts among States. See, e.g., Arkansas v. Oklahoma, 503 U.S. 91   [505 U.S. 144, 180]   (1992); Wyoming v. Oklahoma, 502 U.S. 437 (1992). Many of these disputes have involved the allocation of shared resources among the States, a category perhaps broad enough to encompass the allocation of scarce disposal space for radioactive waste. See, e.g., Colorado v. New Mexico, 459 U.S. 176 (1982); Arizona v. California, 373 U.S. 546 (1963). The United States suggests that, if the Court may resolve such interstate disputes, Congress can surely do the same under the Commerce Clause. The regional compacts support this argument with a series of quotations from The Federalist and other contemporaneous documents, which the compacts contend demonstrate that the Framers established a strong National Legislature for the purpose of resolving trade disputes among the States. Brief for Rocky Mountain Low-Level Radioactive Waste Compact et al. as Amici Curiae 17, and n. 16.

While the Framers no doubt endowed Congress with the power to regulate interstate commerce in order to avoid further instances of the interstate trade disputes that were common under the Articles of Confederation, the Framers did not intend that Congress should exercise that power through the mechanism of mandating state regulation. The Constitution established Congress as "a superintending authority over the reciprocal trade" among the States, The Federalist No. 42, p. 268 (C. Rossiter ed. 1961), by empowering Congress to regulate that trade directly, not by authorizing Congress to issue trade-related orders to state governments. As Madison and Hamilton explained, "a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity." Id., No. 20, at 138.

B

The sited state respondents focus their attention on the process by which the Act was formulated. They correctly [505 U.S. 144, 181]   observe that public officials representing the State of New York lent their support to the Act's enactment. A Deputy Commissioner of the State's Energy Office testified in favor of the Act. See Low-Level Waste Legislation: Hearings on H.R. 862, H.R. 1046, H.R. 1083, and H.R. 1267 before the Subcommittee on Energy and the Environment of the House Committee on Interior and Insular Affairs, 99th Cong., 1st Sess., 97-98, 190-199 (1985) (testimony of Charles Guinn). Senator Moynihan of New York spoke in support of the Act on the floor of the Senate. 131 Cong.Rec. 38423 (1985). Respondents note that the Act embodies a bargain among the sited and unsited States, a compromise to which New York was a willing participant, and from which New York has reaped much benefit. Respondents then pose what appears at first to be a troubling question: how can a federal statute be found an unconstitutional infringement of state sovereignty when state officials consented to the statute's enactment?

The answer follows from an understanding of the fundamental purpose served by our Government's federal structure. The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: "Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power." Coleman v. Thompson, 501 U.S. 722, 759 (1991) (BLACKMUN, J., dissenting). "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." Gregory v. [505 U.S. 144, 182]   Ashcroft, 501 U.S., at 458 . See The Federalist No. 51, p. 323. (C. Rossiter ed. 1961).

Where Congress exceeds its authority relative to the States, therefore, the departure from the constitutional plan cannot be ratified by the "consent" of state officials. An analogy to the separation of powers among the branches of the Federal Government clarifies this point. The Constitution's division of power among the three branches is violated where one branch invades the territory of another, whether or not the encroached-upon branch approves the encroachment. In Buckley v. Valeo, 424 U.S. 1, 118 -137 (1976), for instance, the Court held that Congress had infringed the President's appointment power, despite the fact that the President himself had manifested his consent to the statute that caused the infringement by signing it into law. See National League of Cities v. Usery, 426 U.S., at 842 , n. 12. In INS v. Chadha, 462 U.S. 919, 944 -959 (1983), we held that the legislative veto violated the constitutional requirement that legislation be presented to the President, despite Presidents' approval of hundreds of statutes containing a legislative veto provision. See id., at 944-945. The constitutional authority of Congress cannot be expanded by the "consent" of the governmental unit whose domain is thereby narrowed, whether that unit is the Executive Branch or the States.

State officials thus cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution. Indeed, the facts of this case raise the possibility that powerful incentives might lead both federal and state officials to view departures from the federal structure to be in their personal interests. Most citizens recognize the need for radioactive waste disposal sites, but few want sites near their homes. As a result, while it would be well within the authority of either federal or state officials to choose where the disposal sites will be, it is likely to be in the political interest of each individual official to avoid being held accountable to the voters for the choice of location. If [505 U.S. 144, 183]   a federal official is faced with the alternatives of choosing a location or directing the States to do it, the official may well prefer the latter, as a means of shifting responsibility for the eventual decision. If a state official is faced with the same set of alternatives - choosing a location or having Congress direct the choice of a location - the state official may also prefer the latter, as it may permit the avoidance of personal responsibility. The interests of public officials thus may not coincide with the Constitution's intergovernmental allocation of authority. Where state officials purport to submit to the direction of Congress in this manner, federalism is hardly being advanced.

Nor does the State's prior support for the Act estop it from asserting the Act's unconstitutionality. While New York has received the benefit of the Act in the form of a few more years of access to disposal sites in other States, New York has never joined a regional radioactive waste compact. Any estoppel implications that might flow from membership in a compact, see West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 35 -36 (1951) (Jackson, J., concurring), thus do not concern us here. The fact that the Act, like much federal legislation, embodies a compromise among the States does not elevate the Act (or the antecedent discussions among representatives of the States) to the status of an interstate agreement requiring Congress' approval under the Compact Clause. Cf. Holmes v. Jennison, 14 Pet. 540, 572 (1840) (plurality opinion). That a party collaborated with others in seeking legislation has never been understood to estop the party from challenging that legislation in subsequent litigation.

[New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d. 120 (1992)]


Springer v. Government of the Philippines, 277 U.S. 189 (1928)

It may be stated then, as a general rule inherent in the American constitutional system, that, unless otherwise expressly provided or incidental to the powers conferred, the Legislature cannot exercise either executive or judicial power; the executive cannot exercise either legislative or [277 U.S. 189, 202]   judicial power; the judiciary cannot exercise either executive or legislative power. The existence in the various Constitutions of occasional provisions expressly giving to one of the departments powers which by their nature otherwise would fall within the general scope of the authority of another department emphasizes, rather than casts doubt upon, the generally inviolate character of this basic rule.

[Springer v. Government of the Philippines, 277 U.S. 189 (1928)]


Touby v. United States, 500 U.S. 160(1991)

The Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United [500 U.S. 165] States." U.S.Const., Art. I, 1. From this language, the Court has derived the nondelegation doctrine: that Congress may not constitutionally delegate its legislative power to another Branch of government. "The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government." Mistretta v. United States, 488 U.S. 361, 371 (1989).

We have long recognized that the nondelegation doctrine does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches. Id. at 372. Thus, Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors. So long as Congress

lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.

J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).

[Touby v. United States, 500 U.S. 160(1991)]


United States v. Munoz-Flores, 495 U.S. 385 (1990)

The Government's second suggestion - that judicial intervention in this case is unwarranted because the case does not involve individual rights - reduces to the claim that a person suing in his individual capacity has no direct interest in our constitutional system of separation of powers, and thus has no corresponding right to demand that the Judiciary ensure the integrity of that system. This argument is simply irrelevant [495 U.S. 385, 394]   to the political question doctrine. That doctrine is designed to restrain the Judiciary from inappropriate interference in the business of the other branches of Government; the identity of the litigant is immaterial to the presence of these concerns in a particular case. And we are unable to discern how, from the perspective of interbranch relations, the asserted lack of connection between Origination Clause claims and individual rights means that adjudication of such claims would necessarily entail less respect for the House than would judicial consideration of challenges based on constitutional provisions more obviously tied to civil liberties.

Furthermore, and more fundamentally, the Government's claim that compliance with the Origination Clause is irrelevant to ensuring individual rights is in error.   This Court has repeatedly emphasized that "`the Constitution diffuses power the better to secure liberty.'" Morrison, supra, at 694 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)). See also Morrison, supra, at 697 (SCALIA, J., dissenting) ("The Framers of the Federal Constitution . . . viewed the principle of separation of powers as the absolutely central guarantee of a just Government"). Recognizing this, the Court has repeatedly adjudicated separation-of-powers claims brought by people acting in their individual capacities. See, e. g., Mistretta, supra (adjudicating claim that United States Sentencing Commission violates separation of powers on direct appeal by an individual defendant who had been sentenced pursuant to guidelines created by the Commission).

What the Court has said of the allocation of powers among branches is no less true of such allocations within the Legislative Branch. See, e. g., Chadha, supra, at 948-951 (bicameral National Legislature essential to protect liberty); The Federalist No. 63 (defending bicameral Congress on ground that each House will keep the other in check). The Constitution allocates different powers and responsibilities to the House and Senate. Compare, e. g., U.S. Const., Art. II, [495 U.S. 385, 395]   2, cl. 2 (giving Senate "Advice and Consent" power over treaties and appointment of ambassadors, judges, and other officers of the United States), with Art. I, 7, cl. 1 (stating that "[a]ll Bills for raising Revenue shall originate in the House of Representatives"). The authors of the Constitution divided such functions between the two Houses based in part on their perceptions of the differing characteristics of the entities. See The Federalist No. 58 (defending the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue); The Federalist No. 64 (justifying advice and consent function of the Senate on the ground that representatives with longer terms would better serve complex national goals). At base, though, the Framers' purpose was to protect individual rights. As James Madison said in defense of that Clause: "This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure." The Federalist No. 58, p. 359 (C. Rossiter ed. 1961). Provisions for the separation of powers within the Legislative Branch are thus not different in kind from provisions concerning relations between the branches; both sets of provisions safeguard liberty.

[United States v. Munoz-Flores, 495 U.S. 385 (1990)]


Loving v. United States, 517 U.S. 748 (1996)

Even before the birth of this country, separation of powers was known to be a defense against tyranny. Montesquieu, The Spirit of the Laws 151-152 (T. Nugent trans. 1949); 1 W. Blackstone, Commentaries *146-*147, *269-*270. Though faithful to the precept that freedom is imperiled if the whole of legislative, executive, and judicial power is in the same hands, The Federalist No. 47, pp. 325-326 (J. Madison) (J. Cooke ed. 1961), the Framers understood that a

hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively,

Buckley v. Valeo, 424 U.S. 1, 120-121 (1976) (per curiam).

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). [517 U.S. 757]

Although separation of powers "`d[oes] not mean that these [three] departments ought to have no partial agency in, or no controul over the acts of each other,'" Mistretta v. United States, 488 U.S. 361, 380-381 (1989) (quoting The Federalist No. 47, supra, at 325-326 (emphasis deleted)), it remains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another. See Plaut v. Spendthrift Farms, 514 U.S. 211, 225-226 (1995) (Congress may not revise judicial determinations by retroactive legislation reopening judgments); Bowsher v. Synar, 478 U.S. 714, 726 (1986) (Congress may not remove executive officers except by impeachment); INS v. Chadha, 462 U.S. 919, 954-955 (1983) (Congress may not enact laws without bicameral passage and presentment of the bill to the President); United States v. Klein, 13 Wall. 128, 147 (1872) (Congress may not deprive court of jurisdiction based on the outcome of a case or undo a Presidential pardon). Even when a branch does not arrogate power to itself, moreover, the separation of powers doctrine requires that a branch not impair another in the performance of its constitutional duties. Mistretta v. United States, supra, 397-408 (examining whether statute requiring participation of Article III judges in the United States Sentencing Commission threatened the integrity of the Judicial Branch); Nixon v. Administrator of General Services, 433 U.S. 425, 445 (1977) (examining whether law requiring agency control of Presidential papers disrupted the functioning of the Executive).

Deterrence of arbitrary or tyrannical rule is not the sole reason for dispersing the federal power among three branches, however. By allocating specific powers and responsibilities to a branch fitted to the task, the Framers created a National Government that is both effective and accountable. Article I's precise rules of representation, member qualifications, bicameralism, and voting procedure make Congress the branch most capable of responsive and [517 U.S. 758] deliberative lawmaking. See Chadha, supra, at 951. Ill-suited to that task are the Presidency, designed for the prompt and faithful execution of the laws and its own legitimate powers, and the Judiciary, a branch with tenure and authority independent of direct electoral control. The clear assignment of power to a branch, furthermore, allows the citizen to know who may be called to answer for making, or not making, those delicate and necessary decisions essential to governance.

Another strand of our separation of powers jurisprudence, the delegation doctrine, has developed to prevent Congress from forsaking its duties. Loving invokes this doctrine to question the authority of the President to promulgate RCM 1004. The fundamental precept of the delegation doctrine is that the lawmaking function belongs to Congress, U.S.Const., Art. I, 1, and may not be conveyed to another branch or entity. Field v. Clark, 143 U.S. 649, 692 (1892). This principle does not mean, however, that only Congress can make a rule of prospective force. To burden Congress with all federal rulemaking would divert that branch from more pressing issues, and defeat the Framers' design of a workable National Government. Thomas Jefferson observed, "Nothing is so embarrassing nor so mischievous in a great assembly as the details of execution." 5 Works of Thomas Jefferson 319 (P. Ford ed. 1904) (Letter to E. Carrington, Aug. 4, 1787). See also A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529-530 (1935) (recognizing "the necessity of adapting legislation to complex conditions involving a host of details with which the national legislature cannot deal directly"). This Court established long ago that Congress must be permitted to delegate to others at least some authority that it could exercise itself. Wayman v. Southard, 10 Wheat. 1, 42 (1825).

"The true distinction . . . is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority [517 U.S. 759] or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made."

Field, supra, at 693-694, quoting Cincinnati, W. & Z. R. Co. v. Commissioners of Clinton County, 1 Ohio St. 77, 88-89 (1852).

[Loving v. United States, 517 U.S. 748 (1996)]


The Betsey, 3 U.S. 6 (1794)

In Europe, the Executive is almost synonymous with the Sovereign power of a State; and, generally, includes legislative and judicial authority. When, therefore, writers speak of the sovereign, it is not necessarily in exclusion of the judiciary; and it will often be found, that when the Executive affords a remedy for any wrong, it is nothing more than by an exercise of its judicial authority. Such is the condition of power in that quarter of the world, where it is too commonly acquired by force, or fraud, or both, and seldom by compact. In America, however, the case is widely different. Our government is founded upon compact. Sovereignty was, and is, in the people. It was entrusted by them, as far as was necessary for the purpose of forming a good government, to the Federal Convention; and the Convention executed their trust, by effectually separating the Legislative, Judicial, and Executive powers; which, in the contemplation of our Constitution, are each a branch of the sovereignty. The well-being of the whole depends upon keeping each department within its limits. In the State government, several instances have occurred where a legislative act, has been rendered inoperative by a judicial decision, that it was unconstitutional; and even under the Federal government the judges, for the same reason, have refused to execute an act of Congress. FN* When, in short, either branch of the government usurps that part of the sovereignty, which the Constitution assigns to another branch, liberty ends, and tyranny commences.

[The Betsey, 3 U.S. 6 (1794)]


Mayer, etc. of the City of New York v. Miln., 36 U.S. 102, 11 Pet. 102, 9 L.Ed. 648 (1837):

"The state governments, in their separate powers and independent sovereignties, in their reserved powers, are just as much beyond the jurisdiction and control of the National Government as the National Government in its sovereignty is beyond the control and jurisdiction of the state government."

"...a State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation..."

[Mayer, etc. of the City of New York v. Miln., 36 U.S. 102, 11 Pet. 102, 9 L.Ed. 648 (1837)]


New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 667 (1885):

"No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants."  (See police power) 

[New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 667 (1885)]


Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 10 L.Ed. 274 (1839):

"The States between each other are sovereign and independent.  They are distinct and separate sovereignties, except so far as they have parted with some of the attributes of sovereignty by the Constitution.  They continue to be nations, with all their rights, and under all their national obligations, and with all the rights of nations in every particular; except in the surrender by each to the common purposes and objects of the Union, under the Constitution.  The rights of each State, when not so yielded up, remain absolute."

[Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 10 L.Ed. 274 (1839)]


Fox. v. The State of Ohio, 46 U.S. 410, 5 Howard 410, 12 L.Ed. 213 (1847)


Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)

 The American development of divided sovereign powers, which "shatter[ed] . . . the categories of government that had dominated Western thinking for centuries," id. at 385, was made possible only by a recognition that the ultimate sovereignty rests in the people themselves. See id. at 530 (noting that because "none of these arguments about `joint jurisdictions' and `coequal sovereignties' convincingly refuted the Antifederalist doctrine of a supreme and indivisible sovereignty," the Federalists could succeed only by emphasizing that the supreme power "`resides in the PEOPLE, as the fountain of government'" (citing 1 Pennsylvania and the Federal Constitution, 1787-1788, p. 302 (J. McMaster & F. Stone, eds. 1888) (quoting James Wilson))).{45} The people possessing this plenary bundle of specific powers [517 U.S. 152] were free to parcel them out to different governments and different branches of the same government as they saw fit. See McDonald, Novus Ordo Seclorum at 278. As James Wilson emphasized, the location of ultimate sovereignty in the People meant that

[t]hey can distribute one portion of power to the more contracted circle called State governments; they can also furnish another proportion to the government of the United States.

1 Pennsylvania and the Federal Constitution, 1787-1788, supra at 302.{46}

Under such a scheme, Alexander Hamilton explained,

[i]t does not follow . . . that each of the portions of powers delegated to [the national or state government] is not sovereign with regard to its proper objects.

Hamilton, Opinion on the Constitutionality of an Act to Establish a Bank, in 8 Papers of Alexander Hamilton 98 (Syrett ed. 1965) (emphasis in original).{47} A necessary consequence of this view was that "the Government of the United States has sovereign power as to its declared purposes & trusts." Ibid. Justice Iredell was to make the same observation in his Chisholm dissent, commenting that

[t]he United States are sovereign as to all the powers of government actually surrendered: each State in the Union is sovereign, as to all the powers reserved.

2 Dall. at 434. And to the same point was Chief Justice Marshall's [517 U.S. 153] description of the National and State Governments as "each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." McCulloch v. Maryland, 4 Wheat. 316, 410 (1819).

[Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), SOUTER, Dissenting]


Printz v. United States, 521 U.S. 898 (1997)

Under the Articles of Confederation the National Government had the power to issue commands to the several sovereign states, but it had no authority to govern individuals directly. Thus, it raised an army and financed its operations by issuing requisitions to the constituent members of the Confederacy, rather than by creating federal agencies to draft soldiers or to impose taxes.

That method of governing proved to be unacceptable, not because it demeaned the sovereign character of the several States, but rather because it was cumbersome and inefficient. Indeed, a confederation that allows each of its members to determine the ways and means of complying with an overriding requisition is obviously more deferential to state sovereignty concerns than a national government that uses its own agents to impose its will directly on the citizenry. The basic change in the character of the government that the Framers conceived was designed to enhance the power of the national government, not to provide some new, unmentioned immunity for state officers. Because indirect control over individual citizens ("the only proper objects of government") was ineffective under the Articles of Confederation, Alexander Hamilton explained that "we must extend the authority of the Union to the persons of the citizens." The Federalist No. 15, at 101 (emphasis added).

Indeed, the historical materials strongly suggest that the Founders intended to enhance the capacity of the federal government by empowering it--as a part of the new authority to make demands directly on individual citizens--to act through local officials. Hamilton made clear that the new Constitution, "by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws." The Federalist No. 27, at 180. Hamilton's meaning was unambiguous; the federal government was to have the power to demand that local officials implement national policy programs. As he went on to explain: "It is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which [the state and federal governments] might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each State." Ibid. 4  

More specifically, during the debates concerning the ratification of the Constitution, it was assumed that state agents would act as tax collectors for the federal government. Opponents of the Constitution had repeatedly expressed fears that the new federal government's ability to impose taxes directly on the citizenry would result in an overbearing presence of federal tax collectors in the States. 5 Federalists rejoined that this problem would not arise because, as Hamilton explained, "the United States . . . will make use of the State officers and State regulations for collecting" certain taxes. Id., No. 36, at 235. Similarly, Madison made clear that the new central government's power to raise taxes directly from the citizenry would "not be resorted to, except for supplemental purposes of revenue . . . and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers . . . appointed by the several States." Id.,No. 45, at 318. 6  

The Court's response to this powerful historical evidence is weak. The majority suggests that "none of these statements necessarily implies . . . Congress could impose these responsibilities without the consent of the States." Ante, at 10-11 (emphasis omitted). No fair reading of these materials can justify such an interpretation. As Hamilton explained, the power of the government to act on "individual citizens"--including "employ[ing] the ordinary magistracy" of the States--was an answer to the problems faced by a central government that could act only directly "upon the States in their political or collective capacities." The Federalist, No. 27, at 179-180. The new Constitution would avoid this problem, resulting in "a regular and peaceable execution of the law of the Union." Ibid.

This point is made especially clear in Hamilton's statement that "the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws." Ibid. (second emphasis added). It is hard to imagine a more unequivocal statement that state judicial and executive branch officials may be required to implement federal law where the National Government acts within the scope of its affirmative powers. 7  

The Court makes two unpersuasive attempts to discount the force of this statement. First, according to the majority, because Hamilton mentioned the Supremacy Clause without specifically referring to any "congressional directive," the statement does not mean what it plainly says. Ante, at 12. But the mere fact that the Supremacy Clause is the source of the obligation of state officials to implement congressional directives does not remotely suggest that they might be " `incorporat[ed] into the operations of the national government' " before their obligations have been defined by Congress. Federal law establishes policy for the States just as firmly as laws enacted by state legislatures, but that does not mean that state or federal officials must implement directives that have not been specified in any law. 8 Second, the majority suggests that interpreting this passage to mean what it says would conflict with our decision in New York v. United States. Ante, at 12. But since the New York opinion did not mention Federalist No. 27, it does not affect either the relevance or the weight of the historical evidence provided by No. 27 insofar as it relates to state courts and magistrates.

Bereft of support in the history of the founding, the Court rests its conclusion on the claim that there is little evidence the National Government actually exercised such a power in the early years of the Republic. See ante, at 5. This reasoning is misguided in principle and in fact. While we have indicated that the express consideration and resolution of difficult constitutional issues by the First Congress in particular "provides `contemporaneous and weighty evidence' of the Constitution's meaning since many of [its] Members . . . `had taken part in framing that instrument,' " Bowsher v. Synar, 478 U.S. 714, 723 -724 (1986) (quoting Marsh v. Chambers, 463 U.S. 783, 790 (1983)), we have never suggested that the failure of the early Congresses to address the scope of federal power in a particular area or to exercise a particular authority was an argument against its existence. That position, if correct, would undermine most of our post-New Deal Commerce Clause jurisprudence. As Justice O'Connor quite properly noted in New York, "[t]he Federal Government undertakes activities today that would have been unimaginable to the Framers." 505 U.S., at 157 .

More importantly, the fact that Congress did elect to rely on state judges and the clerks of state courts to perform a variety of executive functions, see ante, at 5-6, is surely evidence of a contemporary understanding that their status as state officials did not immunize them from federal service. The majority's description of these early statutes is both incomplete and at times misleading.

For example, statutes of the early Congresses required in mandatory terms that state judges and their clerks perform various executive duties with respect to applications for citizenship. The First Congress enacted a statute requiring that the state courts consider such applications, specifying that the state courts "shall administer" an oath of loyalty to the United States, and that "the clerk of such court shall record such application." Act of Mar. 26, 1790, ch. 3, 1, 1 Stat. 103 (emphasis added). Early legislation passed by the Fifth Congress also imposed reporting requirements relating to naturalization on court clerks, specifying that failure to perform those duties would result in a fine. Act of June 18, 1798, ch. 54, 2, 1 Stat. 567 (specifying that these obligations %shall be the duty of the clerk" (emphasis added)). Not long thereafter, the Seventh Congress mandated that state courts maintain a registry of aliens seeking naturalization. Court clerks were required to receive certain information from aliens, record that data, and provide certificates to the aliens; the statute specified fees to be received by local officials in compensation. Act of Apr. 14, 1802, ch. 28, 2, 2 Stat. 154-155 (specifying that these burdens "shall be the duty of such clerk" including clerks "of a . . . state" (emphasis added)). 9  

Similarly, the First Congress enacted legislation requiring state courts to serve, functionally, like contemporary regulatory agencies in certifying the seaworthiness of vessels. Act of July 20, 1790, ch. 29, 3, 1 Stat. 132-133. The majority casts this as an adjudicative duty, ante, at 6, but that characterization is misleading. The law provided that upon a complaint raised by a ship's crew members, the state courts were (if no federal court was proximately located) to appoint an investigative committee of three persons "most skilful in maritime affairs" to report back. On this basis, the judge was to determine whether the ship was fit for its intended voyage. The statute sets forth, in essence, procedures for an expert inquisitorial proceeding, supervised by a judge but otherwise more characteristic of executive activity. 10  

The Court assumes that the imposition of such essentially executive duties on state judges and their clerks sheds no light on the question whether executive officials might have an immunity from federal obligations. Ante, at 6. Even assuming that the enlistment of state judges in their judicial role for federal purposes is irrelevant to the question whether executive officials may be asked to perform the same function--a claim disputed below, see infra, at 32--the majority's analysis is badly mistaken.

We are far truer to the historical record by applying a functional approach in assessing the role played by these early state officials. The use of state judges and their clerks to perform executive functions was, in historical context, hardly unusual. As one scholar has noted, "two centuries ago, state and local judges and associated judicial personnel performed many of the functions today performed by executive officers, including such varied tasks as laying city streets and ensuring the seaworthiness of vessels." Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 Colum. L. Rev. 1001, 1045, n. 176 (1995). And, of course, judges today continue to perform a variety of functions that may more properly be described as executive. See, e.g., Forrester v. White, 484 U.S. 219, 227 (1988) (noting "intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned to perform"). The majority's insistence that this evidence of federal enlistment of state officials to serve executive functions is irrelevant simply because the assistance of "judges" was at issue rests on empty formalistic reasoning of the highest order. 11  

The Court's evaluation of the historical evidence, furthermore, fails to acknowledge the important difference between policy decisions that may have been influenced by respect for state sovereignty concerns, and decisions that are compelled by the Constitution. 12 Thus, for example, the decision by Congress to give President Wilson the authority to utilize the services of state officers in implementing the World War I draft, see Act of May 18, 1917, ch. 15, 6, 40 Stat. 80-81, surely indicates that the national legislature saw no constitutional impediment to the enlistment of state assistance during a federal emergency. The fact that the President was able to implement the program by respectfully "request[ing]" state action, rather than bluntly commanding it, is evidence that he was an effective statesman, but surely does not indicate that he doubted either his or Congress' power to use mandatory language if necessary. 13 If there were merit to the Court's appraisal of this incident, one would assume that there would have been some contemporary comment on the supposed constitutional concern that hypothetically might have motivated the President's choice of language. 14  

The Court concludes its review of the historical materials with a reference to the fact that our decision in INS v. Chadha, 462 U.S. 919 (1983), invalidated a large number of statutes enacted in the 1970's, implying that recent enactments by Congress that are similar to the Brady Act are not entitled to any presumption of validity. But in Chadha, unlike this case, our decision rested on the Constitution's express bicameralism and presentment requirements, id., at 946, not on judicial inferences drawn from a silent text and a historical record that surely favors the congressional understanding. Indeed, the majority's opinion consists almost entirely of arguments against the substantial evidenceweighing in opposition to its view; the Court's ruling is strikingly lacking in affirmative support. Absent even a modicum of textual foundation for its judicially crafted constitutional rule, there should be a presumption that if the Framers had actually intended such a rule, at least one of them would have mentioned it. 15  

The Court's "structural" arguments are not sufficient to rebut that presumption. The fact that the Framers intended to preserve the sovereignty of the several States simply does not speak to the question whether individual state employees may be required to perform federal obligations, such as registering young adults for the draft, 40 Stat. 80-81, creating state emergency response commissions designed to manage the release of hazardous substances, 42 U.S.C. 11001 11003, collecting and reporting data on underground storage tanks that may pose an environmental hazard, 6991a, and reporting traffic fatalities, 23 U.S.C. 402(a), and missing children, 42 U.S.C. 5779(a), to a federal agency. 16  

As we explained in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985):%[T]he principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself. It is no novelty to observe that the composition of the Federal Government was designed in large part to protect the States from overreaching by Congress." Id., at 550-551. Given the fact that the Members of Congress are electedby the people of the several States, with each State receiving an equivalent number of Senators in order to ensure that even the smallest States have a powerful voice in the legislature, it is quite unrealistic to assume that they will ignore the sovereignty concerns of their constituents. It is far more reasonable to presume that their decisions to impose modest burdens on state officials from time to time reflect a considered judgment that the people in each of the States will benefit therefrom.

Indeed, the presumption of validity that supports all congressional enactments 17 has added force with respect to policy judgments concerning the impact of a federal statute upon the respective States. The majority points to nothing suggesting that the political safeguards of federalism identified in Garcia need be supplemented by a rule, grounded in neither constitutional history nor text, flatly prohibiting the National Government from enlisting state and local officials in the implementation of federal law.

Recent developments demonstrate that the political safeguards protecting Our Federalism are effective. The majority expresses special concern that were its rule not adopted the Federal Government would be able to avail itself of the services of state government officials "at no cost to itself." Ante, at 23; see also ante, at 31 (arguing that "Members of Congress can take credit for `solving' problems without having to ask their constituents to pay for the solutions with higher federal taxes"). But this specific problem of federal actions that have the effect of imposing so called "unfunded mandates" on the States has been identified and meaningfully addressed by Congress in recent legislation. 18 See Unfunded Mandates Reform Act of 1995, Pub. L. 104-4, 109 Stat. 48.

The statute was designed "to end the imposition, in the absence of full consideration by Congress, of Federal mandates on State . . . governments without adequate Federal funding, in a manner that may displace other essential State . . . governmental priorities." 2 U. S. C. A. 1501(2) (Supp. 1997). It functions, inter alia, by permitting Members of Congress to raise an objection by point of order to a pending bill that contains an "unfunded mandate," as defined by the statute, of over $50 million. 19 The mandate may not then be enacted unless the Members make an explicit decision to proceed anyway. See Recent Legislation, Unfunded Mandates Reform Act of 1995, 109 Harv. L. Rev. 1469 (1996) (describing functioning of statute). Whatever the ultimate impact of the new legislation, its passage demonstrates that unelected judges are better off leaving the protection of federalism to the political process in all but the most extraordinary circumstances. 20  

Perversely, the majority's rule seems more likely to damage than to preserve the safeguards against tyranny provided by the existence of vital state governments. By limiting the ability of the Federal Government to enlist state officials in the implementation of its programs, the Court creates incentives for the National Government to aggrandize itself. In the name of State's rights, the majority would have the Federal Government create vast national bureaucracies to implement its policies. This is exactly the sort of thing that the early Federalists promised would not occur, in part as a result of the National Government's ability to rely on the magistracy of the states. See, e.g., The Federalist No. 36, at 234-235 (Hamilton); id., No. 45, at 318(Madison). 21  

With colorful hyperbole, the Court suggests that the unity in the Executive Branch of the Federal Government "would be shattered, and the power of the President would be subject to reduction, if Congress could . . . require . . . state officers to execute its laws." Ante, at 23-24. Putting to one side the obvious tension between the majority's claim that impressing state police officers will unduly tip the balance of power in favor of the federal sovereign and this suggestion that it will emasculate the Presidency, the Court's reasoning contradicts New York v. United States. 22  

That decision squarely approved of cooperative federalism programs, designed at the national level but implemented principally by state governments. New York disapproved of a particular method of putting such programs into place, not the existence of federal programs implemented locally. See New York, 505 U.S., at 166 ("Our cases have identified a variety of methods . . . by which Congress may urge a State to adopt a legislative program consistent with federal interests"). Indeed, nothing in the majority's holding calls into question the three mechanisms for constructing such programs that New York expressly approved. Congress may require the States to implement its programs as a condition of federal spending, 23 in order to avoid the threat of unilateral federal action in the area, 24 or as a part of a program that affects States and private parties alike. 25 The majority's suggestion in response to this dissent that Congress' ability to create such programs is limited, ante, at 24, n. 12, is belied by the importance and sweep of the federal statutes that meet this description, some of which we described in New York. See id., at 167-168 (mentioning, inter alia, the Clean Water Act, the Occupational Safety and Health Act of 1970, and the Resource Conservation and Recovery Act of 1976).

Nor is there force to the assumption undergirding the Court's entire opinion that if this trivial burden on state sovereignty is permissible, the entire structure of federalism will soon collapse. These cases do not involve any mandate to state legislatures to enact new rules. When legislative action, or even administrative rule making, is at issue, it may be appropriate for Congress either to pre-empt the State's lawmaking power and fashion the federal rule itself, or to respect the State's power to fashion its own rules. But this case, unlike any precedent in which the Court has held that Congress exceeded its powers, merely involves the imposition of modest duties on individual officers. The Court seems to accept the fact that Congress could require private persons, such as hospital executives or school administrators, to provide arms merchants with relevant information about a prospective purchaser's fitness to own a weapon; indeed, the Court does not disturb the conclusion that flows directly from our prior holdings that the burden on police officers would be permissible if a similar burden were also imposed on private parties with access to relevant data. See New York, 505 U.S., at 160 ; Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). A structural problem that vanishes when the statute affects private individuals as well as public officials is not much of a structuralproblem.

Far more important than the concerns that the Court musters in support of its new rule is the fact that the Framers entrusted Congress with the task of creating a working structure of intergovernmental relationships around the framework that the Constitution authorized. Neither explicitly nor implicitly did the Framers issue any command that forbids Congress from imposing federal duties on private citizens or on local officials. As a general matter, Congress has followed the soundpolicy of authorizing federal agencies and federal agents to administer federal programs. That general practice, however, does not negate the existence of power to rely on state officials in occasional situations in which such reliance is in the national interest. Rather, the occasional exceptions confirm the wisdom of Justice Holmes' reminder that "the machinery of government would not work if it were not allowed a little play in its joints." Bain Peanut Co. of Tex. v. Pinson, 282 U.S. 499, 501 (1931).

Finally, the Court advises us that the "prior jurisprudence of this Court" is the most conclusive support for its position. Ante, at 26. That "prior jurisprudence" is New York v. United States. 26 The case involved the validity of a federal statute that provided the States with three types of incentives to encourage them to dispose of radioactive wastes generated within their borders. The Court held that the first two sets of incentives were authorized by affirmative grants of power to Congress, and therefore "not inconsistent with the Tenth Amendment." 505 U.S., at 173 , 174. That holding, of course, sheds no doubt on the validity of the Brady Act.

The third so called "incentive" gave the States the option either of adopting regulations dictated by Congress or of taking title to and possession of the low level radioactive waste. The Court concluded that, because Congress had no power to compel the state governments to take title to the waste, the "option" really amounted to a simple command to the States to enact and enforce a federal regulatory program. Id., at 176. The Court explained:

"A choice between two unconstitutionally coercive regulatory techniques is no choice at all. Either way, `the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program,' Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., supra, at 288, an outcome that has never been understood to lie within the authority conferred upon Congress by the Constitution." Ibid.

After noting that the "take title provision appears to be unique" because no other federal statute had offered "a state government no option other than that of implementing legislation enacted by Congress," the Court concluded that the provision was "inconsistent with the federal structure of our Government established by the Constitution." Id., at 177.

Our statements, taken in context, clearly did not decide the question presented here, whether state executive officials--as opposed to state legislators--may in appropriate circumstances be enlisted to implement federal policy. The "take title" provision at issue in New York was beyond Congress' authority to enact because it was "in principle . . . no different than a congressionally compelled subsidy from state governments to radioactive waste producers," 505 U.S., at 175 , almost certainly a legislative act.

The majority relies upon dictum in New York to the effect that "[t]he Federal Government may not compel the States to enact or administer a federal regulatory program." Id., at 188 (emphasis added); see ante, at 35. But that language was wholly unnecessary to the decision of the case. It is, of course, beyond dispute thatwe are not bound by the dicta of our prior opinions. See, e.g., U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 24 (1994) (Scalia, J.) ("invoking our customary refusal to be bound by dicta"). To the extent that it has any substance at all, New York's administration language may have referred to the possibility that the State might have been able to take title to and devise an elaborate scheme for the management of the radioactive waste through purely executive policymaking. But despite the majority's effort to suggest that similar activities are required by the Brady Act, see ante, at 28-29, it is hard to characterize the minimal requirement that CLEOs perform background checks as one involving the exercise of substantial policymaking discretion on that essentially legislative scale. 27  

Indeed, Justice Kennedy's recent comment about another case that was distinguishable from New York applies to these cases as well:

"This is not a case where the etiquette of federalism has been violated by a formal command from the National Government directing the State to enact a certain policy, cf. New York v. United States, 505 U.S. 144 (1992), or to organize its governmental functions in a certain way, cf. FERC v. Mississippi, 456 U.S., at 781 , (O'Connor, J., concurring in judgment in part and dissenting in part)." Lopez, 514 U.S., at 583 (Kennedy, J., concurring).

In response to this dissent, the majority asserts that the difference between a federal command addressed to individuals and one addressed to the State itself "cannot be a constitutionally significant one." Ante, at 32. But as I have already noted, n. 16, supra, there is abundant authority in our Eleventh Amendment jurisprudence recognizing a constitutional distinction between local government officials, such as the CLEO's who brought this action, and State entities that are entitled to sovereign immunity. To my knowledge, no one has previously thought that the distinction "disembowels," ante, at 32-33, the Eleventh Amendment. 28  

Importantly, the majority either misconstrues or ignores three cases that are more directly on point. In FERC, we upheld a federal statute requiring state utilities commissions, inter alia, to take the affirmative step of considering federal energy standards in a manner complying with federally specified notice and comment procedures, and to report back to Congress periodically. The state commissions could avoid this obligation only by ceasing regulation in the field, a "choice" that we recognized was realistically foreclosed, since Congress had put forward no alternative regulatory scheme to govern this very important area. 456 U.S., at 764 , 766, 770. The burden on state officials that we approved in FERC was far more extensive than the minimal, temporary imposition posed by the Brady Act. 29  

Similarly, in Puerto Rico v. Branstad, 483 U.S. 219 (1987), we overruled our earlier decision in Kentucky v. Dennison, 24 How. 66 (1861), and held that the Extradition Act of 1793 permitted the Commonwealth of Puerto Rico to seek extradition of a fugitive from its laws without constitutional barrier. The Extradition Act, as the majority properly concedes, plainly imposes duties on state executive officers. See ante, at 8. The majority suggests that this statute is nevertheless of little importance because it simply constitutes an implementation of the authority granted the National Government by the Constitution's Extradition Clause, Art. IV, 2. But in Branstad we noted ambiguity as to whether Puerto Rico benefits from that Clause, which applies on its face only to "States." Avoiding the question of the Clause's applicability, we held simply that under the Extradition Act Puerto Rico had the power to request that the State of Iowa deliver up the fugitive the Commonwealth sought. 483 U.S., at 229 -230. Although Branstad relied on the authority of the Act alone, without the benefit of the Extradition Clause, we noted no barrier to our decision in the principles of federalism--despite the fact that one Member of the Court brought the issue to our attention, see id., at 231(Scalia, J., concurring in part and concurring in judgment). 30  

Finally, the majority provides an incomplete explanation of our decision in Testa v. Katt, 330 U.S. 386 (1947), and demeans its importance. In that case the Court unanimously held that state courts of appropriate jurisdiction must occupy themselves adjudicating claims brought by private litigants under the federal Emergency Price Control Act of 1942, regardless of how otherwise crowded their dockets might be with state law matters. That is a much greater imposition on state sovereignty than the Court's characterization of the case as merely holding that "state courts cannot refuse to apply federal law," ante, at 30. That characterization describes only the narrower duty to apply federal law in cases that the state courts have consented to entertain.

The language drawn from the Supremacy Clause upon which the majority relies ("the Judges in every State shall be bound [by federal law], any Thing in the Constitution or Laws of any state to the Contrary notwithstanding"), expressly embraces that narrower conflict of laws principle. Art. VI, cl. 2. But the Supremacy Clause means far more. As Testa held, because the "Laws of the United States . . . [are] the supreme Law of the Land," state courts of appropriate jurisdiction must hear federal claims whenever a federal statute, such as the Emergency Price Control Act, requires them to do so. Ibid.

Hence, the Court's textual argument is quite misguided. The majority focuses on the Clause's specific attention to the point that "Judges in every State shall be bound." Ibid. That language commands state judges to "apply federal law" in cases that they entertain, but it is not the source of their duty to accept jurisdiction of federal claims that they would prefer to ignore. Our opinions in Testa, and earlier the Second Employers' Liability Cases, rested generally on the language of the Supremacy Clause, without any specific focus on the reference to judges. 31  

The majority's reinterpretation of Testa also contradicts our decision in FERC. In addition to the holding mentioned earlier, see supra, at 30, we also approved in that case provisions of federal law requiring a state utilities commission to "adjudicate disputes arising under [a federal] statute." FERC, 456 U.S., at 760 . Because the state commission had "jurisdiction to entertain claims analogous to those" put before it under the federal statute, ibid., we held that Testa required it to adjudicate the federal claims. Although the commission was serving an adjudicative function, the commissioners were unquestionably not "judges" within the meaning of Art. VI, cl. 2. It is impossible to reconcile the Court's present view that Testa rested entirely on the specific reference to state judges in the Supremacy Clause with our extension of that early case in FERC. 32  

Even if the Court were correct in its suggestion that it was the reference to judges in the Supremacy Clause, rather than the central message of the entire Clause, that dictated the result in Testa, the Court's implied expressio unius argument that the Framers therefore did not intend to permit the enlistment of other state officials is implausible. Throughout our history judges, state as well as federal, have merited as much respect as executive agents. The notion that the Framers would have had no reluctance to "press state judges into federal service" against their will but would have regarded the imposition of a similar--indeed, far lesser-- burden on town constables as an intolerable affront to principles of state sovereignty, can only be considered perverse. If such a distinction had been contemplated by the learned and articulate men who fashioned the basic structure of our government, surely some of them would have said so. 33  

[Printz v. United States, 521 U.S. 898 (1997)]


Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U.S. 361, 380 (1989) (it was "the central judgment of the Framers of the Constitution that within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty"); Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 426 (1934) (The war power "is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties"). Likewise we have made clear that unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions. See St. Cyr, 533 U.S. at 301 ("At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest"). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.

[Hamdi v. Rumsfeld, 542 U.S. 507 (2004)]


Alaska Department of Environmental Conservation v. EPA, 540 U.S. 461 (2004)

If a federal agency were to exercise an analogous power to review the decisions of federal courts, the arrangement would violate the well established rule that the judgments of Article III courts cannot be revised by the Executive or Legislative Branches. See <|2 Dall. 409|>Hayburn's Case, 2 Dall. 409, <|2 Dall. 410|>410, n. (1792) ("'[B]y the Constitution, neither the Secretary [of] War, nor any other Executive officer, nor even the Legislature, are authorized to sit as a court of errors on . . . judicial acts or opinions . . . '"); see also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). The principle that judicial decisions cannot be reopened at the whim of the Executive or the Legislature is essential to preserving separation of powers and judicial independence. Judges cannot, without sacrificing the autonomy of their office, put onto the scales of justice some predictive judgment about the probability that an administrator might reverse their rulings.

The Court today denies state judicial systems the same judicial independence it has long guarded for itself -- only that the injury here is worse. Under the majority's holding, decisions by state courts would be subject to being overturned, not just by any agency, but by an agency established by a different sovereign. We should be reluctant to interpret a congressional statute to deny to States the judicial independence guaranteed by their own constitutions. See Buckalew v. Holloway, 604 P.2d 240, 245 (Alaska 1979) ("There is no doubt that judicial independence was a paramount concern of the delegates [to the Alaska Constitutional Convention]"); see also, e.g., Cal.Const., Art. III, 3 ("The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution"); see also 7 B. Witkin, Summary of [540 U.S. 513] California Law 159160 (9th ed. 1988) ("[Under] the principle of separation of powers . . . , one [department] cannot exercise or interfere with the functions of either of the others"). The Federal Government is free, within its vast legislative authority, to impose federal standards. For States to have a role, however, their own governing processes must be respected. New York v. United States, 505 U.S. 144 (1992). If, by some course of reasoning, state courts must live with the insult that their judgments can be revised by a federal agency, the Court should at least insist upon a clear instruction from Congress. That directive cannot be found here. Cf. Gregory v. Ashcroft, 501 U.S. 452, <|502 U.S. 460|>460 (1991) ("[I]f Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute" (internal quotation marks omitted)).

[Alaska Department of Environmental Conservation v. EPA, 540 U.S. 461 (2004)]


Christopher v. Harbury, 536 U.S. 403 (2002)

The particular facts of this case underscore the need for care on the part of the plaintiff in identifying, and by the court in determining, the claim for relief underlying the "access to court" plea. The action alleged on the part of all the Government defendants (the State Department and NSC defendants sued for denial of access and the CIA defendants who would have been timely sued on the underlying claim but for the denial) was apparently taken in the conduct of foreign relations by the National Government. Thus, if there is to be judicial inquiry, it will raise concerns for the separation of powers in trenching on matters committed to the other branches. See Department of Navy v. Egan, 484 U.S. 518, 529 (1988) ("`[F]oreign policy [is] the province and responsibility of the Executive'"); Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) ("[T]he very nature of executive decisions as to foreign policy is political, not judicial"). Since the need to resolve such constitutional issues ought to be avoided where possible, cf. Department of Housing and Urban Development v. Rucker, 535 U.S. 125, 134-135 (2002); Ashwander v. TVA, 297 U.S. 288, 345-348 (1936) (Brandeis, J., concurring), the trial court should be in a position as soon as possible in the litigation to know whether a potential constitutional ruling may be obviated because the allegations of denied access fail to state a claim on which relief could be granted.

[Christopher v. Harbury, 536 U.S. 403 (2002)]


Clinton v. City of New York, 524 U.S. 417 (1998)

A nation cannot plunder its own treasury without putting its Constitution and its survival in peril. The statute before us, then, is of first importance, for it seems undeniable the Act will tend to restrain persistent excessive spending. Nevertheless, for the reasons given by JUSTICE STEVENS in the opinion for the Court, the statute must be found invalid. Failure of political will does not justify unconstitutional remedies.

I write to respond to my colleague JUSTICE BREYER, who observes that the statute does not threaten the liberties of individual citizens, a point on which I disagree. See post at 496-497. The argument is related to his earlier suggestion that our role is lessened here because the two political branches are adjusting their own powers between themselves. Post at 472, 482-483. To say the political branches have a somewhat free hand to reallocate their own authority would seem to require acceptance of two premises: first, that the public good demands it, and second, that liberty is not at risk. The former premise is inadmissible. The Constitution's structure requires a stability which transcends the convenience of the moment. See Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276-277 (1991); Bowsher v. Synar, [524 U.S. 450] 478 U.S. 714, 736 (1986); INS v. Chadha, 462 U.S. 919, 944-945, 958-959 (1983); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 73-74 (1982). The latter premise, too, is flawed. Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.

Separation of powers was designed to implement a fundamental insight: concentration of power in the hands of a single branch is a threat to liberty. The Federalist states the axiom in these explicit terms:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.

The Federalist No. 47, p. 301 (C. Rossiter ed., 1961). So convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary. The Federalist No. 84, pp. 513, 515; G. Wood, The Creation of the American Republic 1776-1787, pp. 536-543 (1969). It was at Madison's insistence that the First Congress enacted the Bill of Rights. R. Goldwin, From Parchment to Power 75-153 (1997). It would be a grave mistake, however, to think a Bill of Rights in Madison's scheme then, or in sound constitutional theory now, renders separation of powers of lesser importance. See Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1132 (1991).

In recent years, perhaps, we have come to think of liberty as defined by that word in the Fifth and Fourteenth Amendments, and as illuminated by the other provisions of the Bill of Rights. The conception of liberty embraced by the Framers was not so confined. They used the principles of separation of powers and federalism to secure liberty in the fundamental political sense of the term, quite in addition to the idea of freedom from intrusive governmental acts. The idea and the promise were that, when the people delegate some degree of control to a remote central authority, one branch of government ought not possess the power to shape their destiny without a sufficient check from the other two. In this vision, liberty demands limits on the ability of any one [524 U.S. 451] branch to influence basic political decisions. Quoting Montesquieu, the Federalist Papers made the point in the following manner:

"When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner." Again:

"Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor."

The Federalist No. 47, supra, at 303.

It follows that, if a citizen who is taxed has the measure of the tax or the decision to spend determined by the Executive alone, without adequate control by the citizen's Representatives in Congress, liberty is threatened. Money is the instrument of policy, and policy affects the lives of citizens. The individual loses liberty in a real sense if that instrument is not subject to traditional constitutional constraints.

The principal object of the statute, it is true, was not to enhance the President's power to reward one group and punish another, to help one set of taxpayers and hurt another, to favor one State and ignore another. Yet these are its undeniable effects. The law establishes a new mechanism which gives the President the sole ability to hurt a group that is a visible target in order to disfavor the group or to extract further concessions from Congress. The law is the functional equivalent of a line item veto, and enhances the President's powers beyond what the Framers would have endorsed.

It is no answer, of course, to say that Congress surrendered its authority by its own hand; nor does it suffice to point out that a new statute, signed by the President or [524 U.S. 452] enacted over his veto, could restore to Congress the power it now seeks to relinquish. That a congressional cession of power is voluntary does not make it innocuous. The Constitution is a compact enduring for more than our time, and one Congress cannot yield up its own powers, much less those of other Congresses to follow. See Freytag v. Commissioner, 501 U.S. 868, 880 (1991); cf. Chadha, supra, at 942, n. 13. Abdication of responsibility is not part of the constitutional design.

Separation of powers helps to ensure the ability of each branch to be vigorous in asserting its proper authority. In this respect, the device operates on a horizontal axis to secure a proper balance of legislative, executive, and judicial authority. Separation of powers operates on a vertical axis as well, between each branch and the citizens in whose interest powers must be exercised. The citizen has a vital interest in the regularity of the exercise of governmental power. If this point was not clear before Chadha, it should have been so afterwards. Though Chadha involved the deportation of a person, while the case before us involves the expenditure of money or the grant of a tax exemption, this circumstance does not mean that the vertical operation of the separation of powers is irrelevant here. By increasing the power of the President beyond what the Framers envisioned, the statute compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure.

The Constitution is not bereft of controls over improvident spending. Federalism is one safeguard, for political accountability is easier to enforce within the States than nationwide. The other principal mechanism, of course, is control of the political branches by an informed and responsible electorate. Whether or not federalism and control by the electorate are adequate for the problem at hand, they are two of the structures the Framers designed for the problem the statute strives to confront. The Framers of the Constitution [524 U.S. 453] could not command statesmanship. They could simply provide structures from which it might emerge. The fact that these mechanisms, plus the proper functioning of the separation of powers itself, are not employed, or that they prove insufficient, cannot validate an otherwise unconstitutional device. With these observations, I join the opinion of the Court.

[Clinton v. City of New York, 524 U.S. 417 (1998)]


Mistretta v. United States, 488 U.S. 361 (1989)

Delegation of Power

Petitioner argues that, in delegating the power to promulgate sentencing guidelines for every federal criminal offense to an independent Sentencing Commission, Congress has granted the Commission excessive legislative discretion in violation of the constitutionally based nondelegation doctrine. We do not agree.

The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government. The Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States," U.S.Const., Art. I, 1, and we long have insisted that "the integrity and maintenance of [488 U.S. 372] the system of government ordained by the Constitution" mandate that Congress generally cannot delegate its legislative power to another Branch. Field v. Clark, 143 U.S. 649, 692 (1892). We also have recognized, however, that the separation of powers principle, and the nondelegation doctrine in particular, do not prevent Congress from obtaining the assistance of its coordinate Branches. In a passage now enshrined in our jurisprudence, Chief Justice Taft, writing for the Court, explained our approach to such cooperative ventures:

In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government coordination.

J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928). So long as Congress

shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.

Id. at 409.

Applying this "intelligible principle" test to congressional delegations, our jurisprudence has been driven by a practical understanding that, in our increasingly complex society, replete with ever-changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. See Opp Cotton Mills, Inc. v. Administrator, Wage and Hour Div. of Dept. of Labor, 312 U.S. 126, 145 (1941) ("In an increasingly complex society, Congress obviously could not perform its functions if it were obliged to find all the facts subsidiary to the basic conclusions which support the defined legislative policy"); see also United States v. Robel, 389 U.S. 258, 274 (1967) (opinion concurring in result).

The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function.

Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935). Accordingly, this Court has deemed it

constitutionally sufficient if Congress clearly [488 U.S. 373] delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.

American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946).

Until 1935, this Court never struck down a challenged statute on delegation grounds. See Synar v. United States, 626 F.Supp. 1374, 1383 (DC) (three-judge court), aff'd sub nom. Bowsher v. Synar, 478 U.S. 714 (1986). After invalidating in 1935 two statutes as excessive delegations, see A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, and Panama Refining Co. v. Ryan, supra, we have upheld, again without deviation, Congress' ability to delegate power under broad standards.{7} See, e.g., Lichter v. United States, 334 U.S. 742, 785-786 (1948) (upholding delegation of authority to determine excessive profits); American Power & Light Co. v. SEC, 329 U.S. at 105 (upholding delegation of authority to Securities and Exchange Commission to prevent unfair or inequitable distribution of voting power among security holders); Yakus v. United States, 321 U.S. 414, 426 (1944) (upholding delegation to administrator to fix commodity prices that would be fair and equitable, and would effectuate the purposes of the Emergency Price Control Act of 1942); FPC v. Hope Natural Gas Co., 320 U.S. 591, 600 (1944) (upholding delegation to Federal Power Commission to determine [488 U.S. 374] just and reasonable rates); National Broadcasting Co. v. United States, 319 U.S. 190, 225-226 (1943) (upholding delegation to Federal Communications Commission to regulate broadcast licensing "as public interest, convenience, or necessity" require).

[Mistretta v. United States, 488 U.S. 361 (1989)]


Flast v. Cohen, 392 U.S. 83 (1968)

When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III. See Muskrat v. United States, 219 U.S. 346 (1911); 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891) (correspondence between Secretary of State Jefferson and Chief Justice Jay). However, the rule against advisory opinions also recognizes that such suits often

are not pressed before the Court with that clear concreteness provided when a question emerges precisely [392 U.S. 97] framed and necessary for decision from a clash of adversary argument exploring every aspect of a multi-faced situation embracing conflicting and demanding interests.

United States v. Fruehauf, 365 U.S. 146, 157 (1961). Consequently, the Article III prohibition against advisory opinions reflects the complementary constitutional considerations expressed by the justiciability doctrine: federal judicial power is limited to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.

[Flast v. Cohen, 392 U.S. 83 (1968)]


N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (458 U.S. 50 (1982)

The distinction between public rights and private rights has not been definitively explained in our precedents. n22 Nor is it necessary to do so in the present cases, for it suffices to observe that a matter of public rights must at a minimum arise "between the government and others." Ex parte Bakelite Corp., supra, at 451. n23 In contrast, "the liability of [*70] one [**2871] individual to another under the law as defined," Crowell v. Benson, supra, at 51, is a matter of private rights. Our precedents clearly establish that HN6only controversies in the former category may be removed from Art. III courts and delegated to legislative courts or administrative agencies for their determination. See Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442, 450, n. 7 (1977); Crowell v. Benson, supra, at 50-51. See also Katz, Federal Legislative Courts, 43 Harv. L. Rev. 894, 917-918 (1930). n24 Private-rights disputes, on the other hand, lie at the core of the historically recognized judicial power.

[N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (458 U.S. 50 (1982)]


Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 111 S.Ct. 2298 (1991)

The structure of our Government as conceived by the Framers of our Constitution disperses the federal power among the three branches-the Legislative, the Executive, and the Judicial-placing both substantive and procedural limitations on each. The ultimate purpose of this separation of powers is to protect the liberty and security of the governed. As former Attorney General Levi explained:

“The essence of the separation of powers concept formulated by the Founders from the political experience and philosophy of the revolutionary era is that each branch, in different ways, within the sphere of its defined powers and subject to the distinct institutional responsibilities of the others is essential to the liberty and security of the people. Each branch, in its own way, is the people's agent, its fiduciary for certain purposes.

. . . . .

Fiduciaries do not meet their obligations by arrogating to themselves the distinct duties of their master's other agents.” Levi, Some Aspects of Separation of Powers, 76 Colum.L.Rev. 385-386 (1976).

Violations of the separation-of-powers principle have been uncommon because each branch has traditionally respected the prerogatives of the other two. Nevertheless, the Court has been sensitive to its responsibility to enforce the principle when necessary.

*273 “Time and again we have reaffirmed the importance in our constitutional scheme of the separation of governmental powers into the three coordinate branches. See, e.g., Bowsher v. Synar, 478 U.S., at 725 [106 S.Ct., at 3187] (citing Humphrey's Executor, 295 U.S. [602], at 629-630 [55 S.Ct. 869, 874, 79 L.Ed. 1611 (1935) ] ). As we stated in Buckley v. Valeo, 424 U.S. 1 [96 S.Ct. 612, 46 L.Ed.2d 659] (1976), the system of separated powers and checks and balances established in the Constitution was regarded by the Framers as ‘a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.’ Id., at 122 [96 S.Ct., at 684]. We have not hesitated to invalidate provisions of law which violate this principle. See id., at 123 [96 S.Ct., at 684].” Morrison v. Olson, 487 U.S. 654, 693, 108 S.Ct. 2597, 2620, 101 L.Ed.2d 569 (1988).

The abuses by the monarch recounted in the Declaration of Independence provide dramatic evidence of the threat to liberty posed by a too powerful executive. But, as James Madison recognized, the representatives of the majority in a democratic society, if unconstrained, may pose a similar threat:

“It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.

. . . . .

“The founders of our republics ... seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations; which by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.... [I]t is against the enterprising ambition of this department, that the people ought to indulge all their jealousy and exhaust all their precautions.

“The legislative department derives a superiority in our governments from other circumstances. Its constitutional*274 powers being at once more extensive and less susceptible of precise limits, it can with the greater facility, mask under complicated **2311 and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real-nicety in legislative bodies, whether the operation of a particular measure, will, or will not extend beyond the legislative sphere.” The Federalist No. 48, pp. 332-334 (J. Cooke ed. 1961).

[6] Link to KeyCite Notes To forestall the danger of encroachment “beyond the legislative sphere,” the Constitution imposes two basic and related constraints on the Congress. It may not “invest itself or its Members with either executive power or judicial power.” J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 351, 72 L.Ed. 624 (1928). And, when it exercises its legislative power, it must follow the “single, finely wrought and exhaustively considered, procedures” specified in Article I. INS v. Chadha, 462 U.S., at 951, 103 S.Ct., at 2784.FN19

FN19. “As we emphasized in Chadha, when Congress legislates, when it makes binding policy, it must follow the procedures prescribed in Article I. Neither the unquestioned urgency of the national budget crisis nor the Comptroller General's proud record of professionalism and dedication provides a justification for allowing a congressional agent to set policy that binds the Nation. Rather than turning the task over to its agent, if the Legislative Branch decides to act with conclusive effect, it must do so through a process akin to that specified in the fallback provision-through enactment by both Houses and presentment to the President.” Bowsher, 478 U.S., at 757-759, 106 S.Ct., at 3204-3205 (STEVENS, J., concurring in judgment).

The first constraint is illustrated by the Court's holdings in Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928), and Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). Springer involved the validity of Acts of the Philippine Legislature that authorized a committee of three-two legislators and one executive-to vote corporate stock owned by the Philippine Government. Because the Organic Act of the Philippine Islands incorporated the separation-of-powers principle, and because the challenged statute authorized two legislators to perform *275 the executive function of controlling the management of the government-owned corporations, the Court held the statutes invalid. Our more recent decision in Bowsher involved a delegation of authority to the Comptroller General to revise the federal budget. After concluding that the Comptroller General was in effect an agent of Congress, the Court held that he could not exercise executive powers:

“To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws.... The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.” Bowsher, 478 U.S., at 726, 106 S.Ct., at 3188.

The second constraint is illustrated by our decision in Chadha. That case involved the validity of a statute that authorized either House of Congress by resolution to invalidate a decision by the Attorney General to allow a deportable alien to remain in the United States. Congress had the power to achieve that result through legislation, but the statute was nevertheless invalid because Congress cannot exercise its legislative power to enact laws without following the bicameral and presentment procedures specified in Article I. For the same reason, an attempt to characterize the budgetary action of the Comptroller General in Bowsher as legislative action would not have saved its constitutionality because Congress may not delegate the power to legislate to its own agents or to its own Members.FN20

FN20. “If Congress were free to delegate its policymaking authority to one of its components, or to one of its agents, it would be able to evade ‘the carefully crafted restraints spelled out in the Constitution.’ [ Chadha, 462 U.S.], at 959[, 103 S.Ct., at 2788]. Bowsher, 478 U.S., at 755, 106 S.Ct., at 3202 (STEVENS, J., concurring in judgment).

[Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 111 S.Ct. 2298 (1991)]


O'Donoghue v. U.S., 289 U.S. 516 (1933)

The Constitution, in distributing the powers of government, creates three distinct and separate departments-the legislative, the executive, and the judicial. This separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital, Springer v. Government of Philippine Islands, 277 U.S. 189, 201, 48 S.Ct. 480, 72 L.Ed. 845; namely, to preclude a commingling of these essentially different powers of government in the same hands. And this object is none the less apparent and controlling because there is to be found in the Constitution an occasional specific provision conferring upon a given department certain functions, which, by their nature, would otherwise fall within the general scope of the powers of another. Such exceptions serve rather to emphasize the generally inviolate character of the plan.

If it be important thus to separate the several departments of government and restrict them to the exercise of their appointed powers, it follows, as a logical corollary, equally important, that each department should be kept completely independent of the others-independent not in the sense that they shall not co-operate to the common end of carrying into effect the purposes of the Constitution, but in the sense that the acts of each shall never be controlled by, or subjected, directly or indirectly, to, the coercive influence of either of the other departments. James Wilson, one of the framers of the Constitution and a justice of this court, in one of his law lectures said that the independence of each department required that its proceedings ‘should be free from the remotest influence, direct or indirect, of either of the other two powers.’ Andrews, the Works of James Wilson (1896), vol. 1, p. 367. And the importance of such independence was similarly recognized by Mr. Justice Story when he said that in reference to each other neither of the departments *531 ‘ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers.’ 1 Story on the Constitution (4th Ed.) s 530. To the same effect, the Federalist (Madison) No. 48. And see Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078.

[O'Donoghue v. U.S., 289 U.S. 516 (1933)]


Pacemaker Diagnostic Clinic of America Inc. v. Instromedix Inc., 725 F.2d. 537 (9th Cir. 02/16/1984)

The maxim also begs the essential question, whether jurisdiction can be conferred on the magistrate. The issue is not the expansion of Article III jurisdiction but its transfer to another federal forum. The component of the separation of powers rule that protects the integrity of the constitutional structure, as distinct from the component that protects the rights of the litigants, cannot be waived by the parties, but that analysis requires us to address questions more fundamental than the irrelevant rule that jurisdiction cannot be conferred by the parties. We now address those concerns.

On its most fundamental plane, the separation of powers doctrine protects the whole constitutional structure by requiring that each branch retain its essential powers and independence. Buckley v. Valeo, 424 U.S. 1, 120, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976); Chadha v. INS, 634 F.2d at 425 (9th Cir. 1980), aff'd, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983). Statutes or governmental actions which violate the separation of powers doctrine in its systemic aspect should be invalidated, as a general rule, despite waiver by affected private parties. Here the statute requires entry and enforcement of judgments in an Article III court after a non-Article III judicial officer has heard the suit. The procedure raises at least two concerns for the integrity of the judiciary. The first is whether, by providing for reference of court cases to a magistrate, Congress has invaded the power of a coordinate branch or permitted an improper abdication of that branch's central authority. See, e.g., Buckley v. Valeo, 424 U.S. 1, 120-43, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976); Schechter Poultry Corp. v. United States, 295 U.S. 495, 529-42, 79 L. Ed. 1570, 55 S. Ct. 837 (1935); the second is whether the requirement for entry of judgment improperly directs the judiciary in the performance of its duties. See United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L. Ed. 519 (1871); cf. California Medical Ass'n v. Federal Election Comm'n, 641 F.2d 619, 631-32 (9th Cir. 1980) (en banc) (statutory provision requiring en banc consideration of cases arising under Federal Election Campaign Act may present constitutional questions), aff'd, 453 U.S. 182, 69 L. Ed. 2d 567, 101 S. Ct. 2712 (1981).

The standard for determining whether there is an improper interference with or delegation of the independent power of a branch is whether the alteration prevents or substantially impairs performance by the branch of its essential role in the constitutional system. Nixon v. Administrator of General Services, 433 U.S. 425, 443, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977). There is little guidance in the cases beyond this broad formulation, but the general rule can be narrowed for the case before us. If the essential, constitutional role of the judiciary is to be maintained, there must be both the appearance and the reality of control by Article III judges over the interpretation, declaration, and application of federal law. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76-81, 73 L. Ed. 2d 598, 102 S. Ct. 2858 (1982); United States v. Raddatz, 447 U.S. 667, 685, 65 L. Ed. 2d 424, 100 S. Ct. 2406 (1980) (Blackmun, J., concurring). The required control must be more than simple appellate review. This is the teaching of Northern Pipeline. 458 U.S. at 86, n.39.

Ours is not the paradigmatic separation of powers case, where the integrity of one branch is threatened by another which attempts an arrogation of power to itself. E.g., Buckley v. Valeo, 424 U.S. 1, 120, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976); Youngstown Steel & Tube v. Sawyer, 343 U.S. 579, 96 L. Ed. 1153, 72 S. Ct. 863 (1952). The potential for disruption is instead the erosion of the central powers of the judiciary by permitting it to delegate its own authority. Upon examination of the statute before us, we conclude that it contains sufficient protection against the erosion of judicial power to overcome the constitutional objections leveled against it. The statute invests the Article III judiciary with extensive administrative control over the management, composition, and operation of the magistrate system. It permits, moreover, control over specific cases by the resumption of district court jurisdiction on the court's own initiative.

Article III courts control the magistrate system as a whole. The statutory scheme created by Congress protects against intervention by political branches of government. The Judicial Conference of the United States, composed exclusively of Article III judges, see 28 U.S.C. 331 (1976), determines the number of magistrate positions for each district, 28 U.S.C. 633(b), protecting against the designation of so many magistrates that effective judicial control is lost. We must acknowledge that the exclusive character of Article III control in this one aspect of the statute will lose considerable force under an amendment effective April 1984, when bankruptcy judges, non-Article III officers, are included within the Judicial Conference of the United States. 28 U.S.C. 331 (Supp. V 1981). There are enough other aspects of exclusive judicial control so that this change should not alter our conclusion, though it does detract from the constitutional symmetry of the Magistrate Act.

Selection of magistrates and their retention in office, under statutory standards relating to performance and fitness, is the responsibility of Article III judges, as it is vested in the judges of the separate districts. 28 U.S.C. 631. Magistrates thus are not made directly dependent upon loyalty to officers in either of the political branches.

The congressional designation of Article III judges to select and to appoint magistrates as subordinate officers is not the mark of an aberrant procedure. To the contrary, the Constitution contains explicit, textual authority for the judiciary to appoint its own officers, if the Congress so permits. Article II, section 2 provides that "the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." See Go-Bart Importing Co. v. United States, 282 U.S. 344, 352-53, 75 L. Ed. 374, 51 S. Ct. 153 (1931) (commissioners are inferior officers); Rice v. Ames, 180 U.S. 371, 378, 45 L. Ed. 577, 21 S. Ct. 406 (1901) (Congress may authorize judges to appoint commissioners). This constitutional authority for the exercise of the appointment power by Article III judges implies an important dimension to the judicial power: the judiciary is permitted a degree of control and discretion for the design and shape of its own system. The Magistrates Act implements this constitutional authority.

[Pacemaker Diagnostic Clinic of America Inc. v. Instromedix Inc., 725 F.2d. 537 (9th Cir. 02/16/1984)]