Chapter 8

SEPARATION OF POWERS

A prior Chapter (supra, p. 15) summarized the general boundaries of the powers of the three federal branches. Here, we examine closely certain conflicts between branches, especially between the Executive and Legislative Branches. Here are the most important concepts in this Chapter:

•   President/Congress boundary line: Many separation-of-powers conflicts involve the boundary line between the President (Executive Branch) and Congress (Legislative Branch). Here are some of the more important principles concerning this boundary line:
  •     President can’t make the laws: The President cannot make the laws. All he can do is to carry out the laws made by Congress.
  •     Declaration of War: Only Congress, not the President, can declare war.
  •    Appointments: The President, not Congress, has the power to appoint federal executive officers.
    •     Removal by Congress: Just as Congress may not directly appoint federal executive officers, it may not remove an executive officer, except by the special process of impeachment.
  •     Removal of federal judges: Federal judges cannot be removed by either Congress or the President.
•     Other issues: The other main separation-of-powers area involves issues of immunity and executive privilege:
  •     “Speech and Debate” Clause: Members of Congress are given a quite broad immunity by the “Speech and Debate” Clause. This clause shields members of Congress from: (1) civil or criminal suits relating to their legislative actions; and (2) grand jury investigations relating to those actions.
  •     Executive immunity: Courts recognize an implied executive immunity from civil actions.
    •     Absolute for President: The President has absolute immunity from civil liability for his official acts.
    •     Qualified for others: All other federal officials, including presidential assistants, receive only qualified civil immunity.
  •    Executive privilege: Presidents have a qualified right to refuse to disclose confidential information relating to the performance of their duties. This is called “executive privilege.”
    •     Outweighed: Since the privilege is qualified, it may be outweighed by other compelling governmental interests (e.g., the need for the President’s evidence in a criminal trial).