The separation of powers - Federal interbranch relationships

Learning Outcomes

This article explores the fundamental principles of separation of powers within the U.S. federal government and their application to common MBE-style interbranch disputes, including:

• Distinguishing the core constitutional powers of Congress, the President, and the federal courts.
• Identifying how each branch can check the others and when a purported “check” violates separation of powers.
• Analyzing bar-exam patterns involving appointments, removals, legislative vetoes, delegations to agencies, and control of appropriations.
• Applying judicial review, political question doctrine, and other justiciability limits to disputes among the branches.
• Clarifying the scope of interbranch immunities, including the Speech or Debate Clause, executive privilege, and executive immunity.
• Evaluating when Congress may structure and limit the jurisdiction of the federal courts without undermining Article III.
• Using the Youngstown framework to assess the validity of presidential action in relation to congressional authorization or opposition.
• Determining when suits by taxpayers, legislators, or private parties against the political branches satisfy standing and other justiciability requirements.

MBE Syllabus

For the MBE, you are required to understand the constitutional framework establishing the three branches of the federal government and the principles governing their interactions, with a focus on the following syllabus points:

• Identify the distinct powers vested in Congress (Article I), the President (Article II), and the Judiciary (Article III).
• Analyze the system of checks and balances, including legislative checks on the executive and judiciary, executive checks on the legislature and judiciary, and judicial checks on the legislature and executive.
• Understand the scope and limits of Congressional power, particularly regarding its influence over the executive branch (e.g., impeachment, appropriations, legislative veto invalidity).
• Comprehend the extent of Presidential power (e.g., appointment, removal, veto, pardon, foreign affairs, commander-in-chief authority) and its limitations.
• Recognize the role of Judicial Review in maintaining the separation of powers, including limits on federal court jurisdiction and the political question doctrine.
• Analyze issues related to delegation of powers (non-delegation doctrine, agency rulemaking) and immunities of government officials (executive, legislative, judicial).
• Apply bicameralism and presentment requirements to evaluate the validity of federal lawmaking and congressional attempts to control executive action.
• Evaluate when Congress may create Article I courts and administrative tribunals and how these fit within the Article III judicial framework.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following actions by Congress would most likely violate the principle of separation of powers?
   1. Refusing to confirm a Presidential appointment to the Supreme Court.
   2. Passing a law that overrides a Supreme Court decision interpreting a federal statute.
   3. Enacting a statute that allows a congressional committee to veto an executive agency's regulation before it takes effect.
   4. Conducting impeachment proceedings against a federal judge.
2. The President's power to veto legislation passed by Congress is an example of:
   1. A check by the executive branch on the legislative branch.
   2. A power delegated to the President by Congress.
   3. A fundamental power derived from the Take Care Clause.
   4. A power subject to judicial review for constitutionality before the veto is exercised.
3. Executive privilege allows the President to withhold certain information from other branches. This privilege is:
   1. Absolute and cannot be overridden by any other branch.
   2. Explicitly granted in Article II of the Constitution.
   3. Qualified and may yield when there is a demonstrated, specific need for evidence in a criminal trial.
   4. Applicable only to matters involving foreign affairs or national security secrets.
4. Congress passes a statute giving the Speaker of the House authority to appoint one of the five voting members of a new federal commission that will issue binding regulations on private companies. Which is the best assessment?
   1. Valid, because Congress has plenary authority to structure federal agencies.
   2. Invalid, because Congress may not appoint officers who exercise executive power.
   3. Valid, because the commission is multi-member and bipartisan.
   4. Invalid only if the appointee is not confirmed by the Senate.
5. A taxpayer sues in federal court alleging that a federal spending program exceeds Congress’s Commerce Clause power and therefore violates separation of powers. Which is most accurate regarding justiciability?
   1. The taxpayer has standing because the suit challenges federal spending.
   2. The taxpayer has standing because the suit raises a structural constitutional claim.
   3. The taxpayer lacks standing because taxpayer standing is never permitted in federal court.
   4. The taxpayer generally lacks standing, absent a narrow Establishment Clause challenge to a tax-and-spend program.

Introduction

The U.S. Constitution establishes three distinct branches of federal government—Legislative (Congress), Executive (President), and Judicial (Supreme Court and lower federal courts)—and allocates specific powers to each. This separation of powers is fundamental to the structure of American government, designed to prevent the concentration of power in any single branch. Equally important is the system of checks and balances, which allows each branch to limit the powers of the others, ensuring no branch becomes dominant.

On the MBE, separation-of-powers questions often test whether a particular interbranch action respects these structural limits. Typical patterns include:

• Congress attempting to control executive officials directly (appointment, removal, or legislative veto).
• The President claiming unilateral power in domestic or foreign affairs.
• Courts reviewing actions of the political branches—or declining to do so under the political question or other justiciability doctrines.

Key Term: Separation of Powers
The constitutional doctrine dividing governmental power among the legislative, executive, and judicial branches, each with distinct roles and responsibilities.

Key Term: Checks and Balances
The system embedded in the Constitution whereby each branch of government has the authority to limit the power of the other branches, preventing any one branch from becoming too powerful.

At a high level, most separation-of-powers problems involve one of two things:

• One branch aggrandizing its own power (taking on functions assigned to another branch).
• One branch undermining the core functions or independence of another branch.

A useful exam strategy is to ask:

1. Which branch is acting?
2. What function is being exercised (legislative, executive, or judicial)?
3. Does the Constitution authorize that branch to exercise that function in the way described?

Another structural requirement that frequently appears in interbranch questions is how a federal law is validly made.

Key Term: Bicameralism
The requirement that, to become law, a measure must be passed by both chambers of Congress—the House of Representatives and the Senate.

Key Term: Presentment
The requirement that, after bicameral passage, a bill must be presented to the President for signature or veto before it can become law.

Under Article I, any binding change to rights or obligations ordinarily requires bicameralism and presentment. Many unconstitutional schemes—especially legislative vetoes and unusual appointment structures—fail because they bypass these basic lawmaking steps.

These doctrines are not merely abstract; they determine who may do what, and how, within the federal government. The following sections examine each branch’s powers and the limits imposed by the others.

CONGRESSIONAL POWERS AND LIMITS ON OTHER BRANCHES

Article I vests all legislative powers in Congress. Beyond lawmaking, Congress possesses significant checks on the other two branches. Many MBE questions ask whether Congress has overstepped those limits by either:

• Encroaching on executive or judicial functions, or
• Attempting to exercise legislative power without complying with bicameralism and presentment.

Before turning to specific checks, remember that Congress itself is a body of limited, enumerated powers. Common sources of congressional authority include the Commerce Clause, Taxing and Spending power, the Necessary and Proper Clause, and various more specific powers (e.g., to declare war, coin money, establish post offices). A federal statute is valid only if it is traceable to one or more of these powers and does not violate other constitutional limits (such as separation of powers or individual rights).

Legislative Checks on the Executive Branch

Congress has multiple tools to influence or constrain the executive branch. On the MBE, you must be able to distinguish these valid checks from unconstitutional attempts to control executive officials directly.

• Impeachment Power

  The House of Representatives has the sole power of impeachment (bringing charges), and the Senate has the sole power to try impeachments. Conviction requires a two-thirds vote of the Senate and results in removal from office. [U.S. Const. Art. I, §2, cl. 5; Art. I, §3, cl. 6] This applies to the President, Vice President, and all civil officers (including federal judges and executive officials).

  Grounds for impeachment are “treason, bribery, or other high crimes and misdemeanors.” Impeachment is a political remedy: conviction removes the official from office and may bar future federal office, but it does not itself impose criminal penalties. A separate criminal prosecution in court would be required for that.

  • The House impeaches by a simple majority vote (similar to an indictment).
  • The Senate conducts the trial; conviction requires a two-thirds vote of Senators present.
  • The impeachment and trial process is itself largely immune from judicial review; challenges to the Senate’s method of trying impeachments present a political question. [Nixon v. United States]

Key Term: Impeachment
A formal process initiated by the House of Representatives bringing charges against a federal official (President, Vice President, judge, etc.), potentially leading to trial in the Senate and removal from office upon conviction.

• Power of the Purse

  Congress controls funding for executive branch activities through appropriations. No money may be drawn from the Treasury except as appropriated by law. [U.S. Const. Art. I, §9, cl. 7] By conditioning, reducing, or refusing appropriations, Congress can effectively shape or limit executive programs.

Key Term: Power of the Purse
Congress’s exclusive authority to authorize federal spending and to condition or withhold funds for executive and administrative activities.

Key points for the exam:

• Congress may attach conditions to appropriations that limit how funds may be used, as long as those conditions themselves are within Congress’s powers and do not commandeer state governments or violate individual rights.
• Congress may choose not to fund an executive initiative or to terminate funding for particular operations (for example, a military deployment), which can indirectly constrain executive action.

A closely related concept is impoundment—a President’s refusal to spend funds appropriated by Congress. If a statute gives the President discretion whether to spend, the President may choose not to spend. But if the statute clearly requires that funds be spent for specified purposes, the President cannot unilaterally withhold them. There is no general presidential power to impound funds in defiance of a mandatory spending law.

• Veto Override

  Congress can override a Presidential veto with a two-thirds vote in both the House and the Senate. [U.S. Const. Art. I, §7, cl. 2] This gives Congress a direct check on the President’s veto power, ensuring that legislation with supermajority support can become law even over presidential objection.

• Senate Confirmation

  The Senate must confirm major Presidential appointments (e.g., cabinet officers, ambassadors, federal judges) and must ratify treaties negotiated by the President (by a two-thirds vote). [U.S. Const. Art. II, §2, cl. 2]

Key Term: Appointment Power
The President’s authority, with Senate advice and consent, to appoint principal officers of the United States—such as federal judges, ambassadors, and cabinet members. Congress may allow appointment of inferior officers by the President alone, heads of departments, or courts of law.

Important distinctions:

• Principal officers (e.g., cabinet secretaries, ambassadors, federal judges) must be appointed by the President with Senate confirmation.
• Inferior officers (e.g., many administrative officials) may have their appointment vested by Congress in the President alone, in the heads of departments, or in courts of law.

Key Term: Principal Officer
A high-level federal officer whose appointment must be made by the President with the advice and consent of the Senate under the Appointments Clause.

Key Term: Inferior Officer
A federal officer who is supervised by a principal officer and whose appointment Congress may vest in the President alone, a department head, or a court of law.

The Senate’s “advice and consent” is a power to approve or reject presidential nominees; it does not itself confer appointment power on Congress.

For treaties, Senate approval by two-thirds transforms the negotiated agreement into a binding treaty with the force of federal law.

• Investigations and Oversight

  Congress has broad implied power to investigate matters related to its legislative function, including executive branch activities and alleged misconduct. This includes issuing subpoenas, holding hearings, and demanding documents.

  Oversight is subject to limits, including:

  • The investigation must relate to a valid legislative purpose (e.g., gathering information to consider new laws).
  • Congress may not exercise the core functions of law enforcement (such as prosecuting specific individuals) under the guise of “investigation.”
  • Individual rights (e.g., privilege against self-incrimination) and applicable privileges (e.g., executive privilege, Speech or Debate Clause) may limit the scope of inquiry.

• Declaring War and Regulating the Military

  Although the President is Commander in Chief, only Congress has the power to declare war and to raise and support armies and navies. [U.S. Const. Art. I, §8, cls. 11–14] Congress can also:

  • Set rules for the armed forces.
  • Authorize or restrict military engagements through statutes and appropriations.
  • Cut off funding to particular military operations.

These tools give Congress substantial influence over the executive branch, but Congress is itself limited in how directly it may control executive officers.

Legislative Checks on the Judicial Branch

Congress has significant authority to shape the federal judiciary’s structure and jurisdiction, but it cannot usurp the courts’ core adjudicatory function.

• Confirmation of Judges

  The Senate confirms federal judicial appointments made by the President. Through this process, the political branches influence the composition of the federal judiciary.

• Creating Lower Courts and Structuring the Judiciary

  Congress has the power to establish lower federal courts and determine their jurisdiction. [U.S. Const. Art. III, §1] Congress can:

  • Create or abolish lower federal courts.
  • Define the subject-matter jurisdiction of those courts.
  • Adjust the number of judgeships and the structure of courts (e.g., adding new circuits).

  However, Congress may not use these structural powers to dictate how courts decide particular cases.

• Defining Appellate Jurisdiction of the Supreme Court

  The Supreme Court’s appellate jurisdiction is established in Article III but is subject to “such Exceptions, and under such Regulations as the Congress shall make.” [U.S. Const. Art. III, §2, cl. 2] This Exceptions Clause allows Congress to make some limits on the Court’s appellate jurisdiction, though Congress cannot destroy the essential role of the Court as the final arbiter of federal law.

• Impeachment of Judges

  Federal judges, like executive officers, can be impeached by the House and removed by the Senate for treason, bribery, or other high crimes and misdemeanors. This serves as a critical check on judicial corruption or serious misconduct.

Limitations on Congressional Power over Other Branches

Although Congress has broad authority, it may not directly exercise executive or judicial functions, nor may it circumvent constitutional procedures.

• Legislative Veto

  Congress cannot reserve for itself the power to veto executive actions or regulations without following the constitutional process of bicameralism (passage by both houses) and presentment (presenting the bill to the President for signature or veto). Attempts to exercise a legislative veto by one house, both houses without presentment, or a congressional committee are unconstitutional. [INS v. Chadha (1983)]

Key Term: Legislative Veto
An unconstitutional mechanism by which Congress, one of its houses, or a committee attempts to reserve the power to overturn an executive action without following the required legislative process (bicameralism and presentment).

In Chadha, Congress had authorized the Attorney General to suspend certain deportation orders, but also gave either house of Congress the ability to veto that suspension by simple resolution. The Court held that this “one-house veto” violated bicameralism and presentment because it changed legal rights without going through the standard lawmaking process.

Common exam patterns:

• A statute requiring agency regulations to be approved by a particular committee of Congress before taking effect.
• A statute allowing either the House or the Senate, by resolution, to cancel an executive action.

All of these are unconstitutional legislative vetoes.

• Appointment and Removal Power Limits

  Congress cannot appoint executive officers; this power belongs to the President (with Senate confirmation for principal officers). [U.S. Const. Art. II, §2, cl. 2; Buckley v. Valeo (1976)] Nor can Congress reserve for itself the power to remove an executive officer, except through impeachment.

Key Term: Removal Power
The President’s general authority to remove executive officers. Congress may, for some inferior officers (especially in independent agencies), limit removal to “for cause,” but Congress may not completely bar removal or reserve removal power to itself (other than via impeachment).

Key limits:

• Congress may not directly appoint officers who wield significant executive authority (e.g., rulemaking, enforcement, or prosecutorial power). Officers hired and fired by Congress may perform only legislative or advisory functions.
• If Congress creates an officer it can hire and fire (for example, an officer appointed by the Speaker of the House), it cannot give that officer executive power. Any attempt to vest executive power in an officer under legislative control violates separation of powers. [Bowsher v. Synar (1986)]
• Congress may condition the President’s removal of certain inferior officers on “good cause,” especially in independent agencies whose functions are quasi-legislative or quasi-judicial. [Morrison v. Olson]

At the same time, Congress may not insulate purely executive officers from presidential control with multiple layers of “for cause” protection. Modern cases restrict “double for-cause” removal arrangements that unduly limit presidential supervision of executive agencies.

• Delegation Limits (Non-Delegation Doctrine)

  Congress may delegate rulemaking authority to executive agencies so long as it provides an “intelligible principle” to guide the agency’s exercise of discretion. This standard is very lenient; almost all delegations are upheld.

Key Term: Non-Delegation Doctrine
The principle that Congress may not delegate its legislative power to another branch without providing an intelligible principle to guide the exercise of delegated authority.

Key Term: Intelligible Principle
A reasonably clear standard or guidance in a statute that directs how delegated power is to be exercised; nearly any meaningful guidance has been deemed sufficient by the Supreme Court.

Exam points:

• Congress can authorize agencies to make rules “in the public interest” or “as necessary to protect public health and safety”; such broad language has repeatedly been upheld.

• Congress cannot delegate pure legislative power to itself or to an entity that is not properly part of the executive or judicial branches (e.g., a private group wielding binding regulatory authority over the public).

• Congress also may not avoid bicameralism and presentment by delegating lawmaking to a congressional committee that effectively makes binding rules on private parties.

• Limits on Interference with Judicial Decisions

  While Congress can change applicable law, it cannot reopen final federal court judgments or dictate the result in a pending case based on specific facts. That would violate separation of powers by encroaching on the judicial function.

  Examples of invalid interference include:

  • A statute requiring federal courts to reopen final judgments entered before a certain date. [Plaut v. Spendthrift Farm]
  • A statute that directs courts to decide a specific pending case in favor of one side whenever a particular factual finding is made, thereby dictating the outcome without leaving a genuine judicial role. [United States v. Klein]

• Impoundment

  As noted, if a statute clearly mandates spending, Congress’s decision controls, and the President cannot refuse to spend the funds. Congress may, however, draft statutes that give spending discretion to the executive (e.g., “the Secretary may, in her discretion, expend up to $5 billion for…”). In that situation, a choice not to spend does not violate the Take Care Clause.

Worked Example 1.1

Congress passes a law creating a new executive agency to regulate air quality. The law includes a provision stating that any major regulation issued by this agency must be submitted to the Senate Environment Committee, which can disapprove the regulation by majority vote within 60 days, thereby preventing it from taking effect. Is this provision constitutional?

Answer:
No. This provision creates a legislative veto, which violates the principles of bicameralism and presentment required by Article I, Section 7. For Congress to overturn an executive action that has the force of law, it must pass legislation through both houses and present it to the President for signature or veto. A one-committee veto bypasses this constitutionally mandated process. [INS v. Chadha]

Worked Example 1.2

Congress enacts a statute creating the “Federal Budget Monitor,” an officer appointed by the Speaker of the House and removable at will by a joint resolution of Congress. The Monitor is given power to direct executive agencies to reduce or delay expenditures when certain budget targets are exceeded. Is this structure constitutional?

Answer:
No. The Budget Monitor is exercising executive power—the power to direct how executive agencies execute the laws. Under Article II, executive power must be exercised by officers who are subject to presidential control. Because the Monitor is appointed and removable by Congress, not by the President, giving this officer executive authority violates separation of powers. Congress may not both control an officer and vest that officer with executive power. [Bowsher v. Synar]

Worked Example 1.3

A federal statute clearly requires that $5 billion be spent on a specific infrastructure program. The President announces that, as a matter of policy, the administration will not spend any of these funds, even though the statute gives no discretion. Is this refusal to spend constitutional?

Answer:
No. When a statute unambiguously requires that funds be spent for specified purposes, the President has no constitutional power to refuse to spend the funds. The President’s duty under the Take Care Clause is to “take Care that the Laws be faithfully executed,” which includes mandatory spending provisions. A unilateral decision not to spend, in the face of a clear mandate, amounts to an unconstitutional impoundment of funds.

Worked Example 1.4

Congress enacts a statute creating a “Federal Election Enforcement Board.” The statute provides that three of the Board’s six voting members will be appointed by the President with Senate confirmation, and three will be appointed directly by congressional leaders (the Speaker, the Senate Majority Leader, and the Senate Minority Leader). The Board will have authority to investigate and bring civil enforcement actions against violators of federal election laws. Is the appointment structure valid?

Answer:
No. Members of the Board exercise significant executive authority (investigating and enforcing federal law). Under the Appointments Clause, such officers must be appointed in the manner Article II specifies. Congress may not appoint executive officers itself. Principal officers must be appointed by the President with Senate confirmation; Congress may authorize alternative appointment only for inferior officers and only by the President alone, heads of departments, or courts of law—not by congressional leaders. This structure violates separation of powers. [Buckley v. Valeo]

EXECUTIVE POWERS AND LIMITS ON OTHER BRANCHES

Article II vests the executive power in the President. Executive authority is greatest where Congress has authorized action and more limited where the President acts without or against congressional authorization.

Two recurring exam themes are:

• The President’s duty to faithfully execute laws enacted by Congress.
• The proper scope of unilateral presidential action, especially in foreign affairs and national security.

Core Executive Powers and Checks

• Execution of the Laws and the Take Care Clause

  The President’s primary domestic function is to execute and enforce federal laws, not to make or suspend them.

Key Term: Take Care Clause
The constitutional command that the President “shall take Care that the Laws be faithfully executed” [Art. II, §3], requiring the President to enforce valid statutes and forbidding a general power to suspend or ignore them.

Executive discretion includes:

• Prioritizing enforcement resources (e.g., prosecutorial discretion).
• Interpreting ambiguous laws within reasonable bounds through regulations or guidance, when authorized by statute.

But the President may not:

• Refuse to enforce a law solely because of policy disagreement.
• Suspend the application of a statute to particular individuals or groups in a way that effectively nullifies the law.
• Claim an independent power to ignore clear statutory commands in domestic affairs.

A common framework for analyzing presidential power relative to Congress is the Youngstown approach (from Youngstown Sheet & Tube Co. v. Sawyer):

• When the President acts with express or implied authorization from Congress, power is at its maximum.
• When Congress is silent, there is a “zone of twilight” in which the validity of executive action depends on the imperatives of events and the distribution of powers.
• When the President acts contrary to the express or implied will of Congress, power is at its “lowest ebb,” and the action is usually invalid unless the Constitution gives the President exclusive authority in that area.

Most MBE questions implicitly test this framework: Is the President acting with, without, or against congressional authorization?

• Veto Power

  The President can veto legislation passed by Congress, subject to a potential override. [U.S. Const. Art. I, §7, cl. 2] A veto may be exercised for any reason or no reason.

Key Term: Veto Power
The President's constitutional authority to refuse to sign a bill passed by Congress, preventing it from becoming law unless Congress overrides the veto with a two-thirds vote in both houses.

Key details:

• The President has 10 days (excluding Sundays) to sign or veto a bill.
• If the President does nothing and Congress is in session, the bill becomes law without a signature.
• If Congress has adjourned and the President does nothing, the bill does not become law; this is a pocket veto.

Key Term: Pocket Veto
A veto that occurs when the President fails to sign a bill within 10 days and Congress has adjourned; the bill then fails without the possibility of an override.

There is no line-item veto at the federal level: the President must accept or reject the entire bill. Attempted line-item vetoes of specific spending provisions are unconstitutional. [Clinton v. City of New York (1998)]

Key Term: Line-Item Veto
A purported power to cancel particular provisions of a bill (often spending items) while approving the rest; the Supreme Court has held that the President does not have this power under the federal Constitution.

• Appointment Power

  As noted above, the President appoints ambassadors, federal judges, and other principal officers with Senate advice and consent, and may appoint inferior officers when Congress so authorizes.

  Exam focus:

  • Any attempt by Congress to appoint executive officers itself (other than officers of Congress) is unconstitutional.
  • Congress may vest appointment of inferior officers in the President alone, heads of departments, or courts of law—but not in itself or its members.
  • Whether an officer is “principal” or “inferior” affects who may appoint that officer and how much removal protection is permissible.

• Removal Power

  The President generally has the power to remove executive officials. Some limits:

  • Congress may, for certain independent agencies or inferior officers, provide that they may be removed by the President only “for cause” (e.g., inefficiency, neglect of duty, malfeasance). [Morrison v. Olson (1988)]
  • Congress cannot completely prohibit removal of an executive officer, nor can it reserve removal for itself (except by impeachment).
  • Congress also may not require that removal occur only with the concurrence of both houses or by a congressional committee; such provisions violate separation of powers.

  Modern doctrine disfavors multiple layers of “for cause” protection that effectively insulate executive agencies from presidential control. The President must retain at least some meaningful ability to ensure that the laws are faithfully executed.

• Pardon Power

  The President can grant reprieves and pardons for offenses against the United States, except in cases of impeachment. [U.S. Const. Art. II, §2, cl. 1]

  • Applies only to federal criminal offenses (not state crimes, civil liability, or impeachment).
  • May be granted before or after conviction.
  • Cannot be limited by Congress.
  • Does not apply to civil contempt or private civil actions.

• Commander in Chief

  The President is Commander in Chief of the armed forces. [U.S. Const. Art. II, §2, cl. 1]

Key Term: Commander in Chief
The role of the President as head of the U.S. armed forces, including authority over military operations and decisions, subject to Congress’s powers to declare war, raise and support armies, and regulate the military.

The President may direct military operations and deploy troops. Only Congress may formally declare war, but Presidents have often used military force with congressional authorization short of a formal declaration (e.g., “Authorization for Use of Military Force”) or, more controversially, without it. The War Powers Resolution attempts to regulate certain unilateral uses of force, but its precise constitutional status is rarely central on the MBE. Focus instead on the relative roles: Congress funds and declares war; the President commands forces.

• Foreign Affairs: Treaties and Executive Agreements

  The President has a leading role in foreign policy.

  • Treaties are negotiated by the President and must be ratified by a two-thirds vote of the Senate. Once ratified, treaties have the same status as federal statutes. If a treaty conflicts with a federal statute, the one later in time controls.
  • Executive agreements are international agreements concluded by the President without Senate approval.

Key Term: Executive Agreements
International agreements entered into by the President that do not require Senate ratification. They may be authorized, limited, or overridden by statute and are inferior to federal statutes and treaties but prevail over conflicting state law.

On the MBE, remember:

• Executive agreements are valid exercises of presidential power in foreign relations.

• They cannot override an existing federal statute, but they do preempt conflicting state laws.

• The President has exclusive authority to recognize foreign governments, which often makes recognition disputes political questions for courts.

• Executive Orders and Supervision of the Executive Branch

  The President may issue executive orders to manage the operations of the federal executive branch. These orders must rest on either constitutional authority or statutory authorization and cannot override statutes or the Constitution.

Key Term: Executive Order
A directive issued by the President to officers and agencies of the executive branch to manage operations; it must be grounded in constitutional or statutory authority and cannot contradict existing federal statutes.

• Executive Privilege

  The President may claim a privilege to withhold confidential communications within the executive branch from disclosure to other branches.

Key Term: Executive Privilege
An implied power claimed by the President to withhold certain confidential communications with advisors from disclosure to Congress or the judiciary, qualified by the need for evidence in criminal proceedings. [United States v. Nixon (1974)]

Important points:

• The privilege is strongest for military, diplomatic, or national security information.
• In criminal proceedings, a generalized claim of confidentiality must yield to a specific demonstrated need for evidence; the courts balance the need for evidence against the Executive’s interest in secrecy. [United States v. Nixon]
• In civil cases, courts give greater deference to executive claims of privilege, but the privilege is still not absolute.
• Courts often conduct in-camera review (private inspection by the judge) to determine which documents, if any, must be disclosed.

Limitations on Executive Power

The President’s powers are subject to checks by Congress and the courts and to constitutional constraints.

• Congressional Oversight and Control

  The President is subject to:

  • Impeachment and removal by Congress.
  • Appropriations and budget limits (Congress can cut off funding).
  • Oversight hearings and investigations.
  • Changes to statutory authority by Congress, including narrowing or repealing grants of power.
  • Senate refusal to confirm nominees.

  The President cannot use executive orders, signing statements, or non-enforcement policies to effectively repeal or rewrite statutes.

• Judicial Review of Executive Action

  Presidential and executive-branch actions are subject to judicial review for constitutionality and legality. Courts can:

  • Enjoin actions that exceed statutory or constitutional authority.
  • Review executive orders and regulations under applicable statutes and the Constitution.
  • Interpret ambiguous statutes, sometimes limiting executive discretion.

Key Term: Judicial Review
The power of the judiciary, established in Marbury v. Madison, to review laws and governmental actions to determine their constitutionality and invalidate those that conflict with the Constitution.

• Case or Controversy and Political Question Limits

  Courts will not adjudicate certain disputes involving the executive, such as:

  • Purely political questions (e.g., how the Senate tries impeachments, certain foreign policy recognition decisions).
  • Requests for advisory opinions about the legality of proposed executive actions.
  • Some disputes between the President and Congress where there is no concrete injury to a particular plaintiff.

• Take Care Clause Constraints

  As noted, the President must faithfully execute the laws. The President cannot:

  • Unilaterally invalidate or suspend statutes.
  • Refuse to carry out a law on policy grounds where the law is constitutional and mandatory.
  • Claim an independent power to contradict clear congressional policy in domestic affairs.

Worked Example 1.5

Congress subpoenas confidential White House communications as part of an investigation into alleged misconduct by executive officials. The President asserts executive privilege and refuses to produce the documents. A federal court orders production, finding that the documents are essential evidence in an ongoing criminal prosecution. Must the President comply?

Answer:
Yes. Although the President enjoys executive privilege for confidential communications, the privilege is qualified, not absolute. In criminal proceedings, a demonstrated, specific need for evidence outweighs a generalized interest in confidentiality. Under United States v. Nixon, the President must comply with a court order requiring disclosure of such materials, subject to in-camera review and possible redaction to protect truly sensitive information.

Worked Example 1.6

During a nationwide steelworkers’ strike, the President issues an executive order directing the Secretary of Commerce to seize and operate the nation’s steel mills to assure continued steel production. Congress has considered and rejected similar seizure authority, and relevant labor statutes provide detailed mechanisms for dealing with strikes but do not authorize seizures. The steel companies sue, alleging that the President lacks authority. Is the seizure constitutional?

Answer:
No. The President’s power to execute the laws does not include a general authority to seize private property to resolve labor disputes, especially where Congress has legislated in the area and declined to authorize such seizures. Under the Youngstown framework, the President is acting against the implied will of Congress, and power is at its “lowest ebb.” There is no independent Article II basis that makes this action exclusive to the President. The seizure is therefore unconstitutional. [Youngstown Sheet & Tube Co. v. Sawyer]

JUDICIAL POWERS AND LIMITS ON OTHER BRANCHES

Article III vests the judicial power in the Supreme Court and such inferior courts as Congress may establish. The judiciary’s role in separation of powers is largely to interpret and enforce constitutional limits, including limits on the other branches.

Judicial Powers and Checks

• Judicial Review of Federal Action

  Federal courts can review the constitutionality of acts by the legislative and executive branches (federal and state). This power was established in Marbury v. Madison (1803).

  • Courts can invalidate statutes that exceed congressional authority or violate constitutional rights.
  • Courts can enjoin executive actions that violate the Constitution or federal law.
  • Courts may review the validity of treaties and executive agreements insofar as they are applied in domestic law.

• Interpretation of Laws

  Courts interpret federal statutes and the Constitution. Their interpretations:

  • Bind the parties in the specific case.
  • Effectively bind the other branches unless and until those branches alter the law through valid constitutional means (e.g., new statute, constitutional amendment).

  Congress retains authority to change statutory law prospectively, but not to overrule constitutional interpretations by ordinary legislation.

• Review of State Court Decisions Involving Federal Law

  The Supreme Court may review state court judgments that turn on questions of federal law, unless the state court’s decision rests on an independent and adequate state ground (in which case Supreme Court review would not change the result).

Key Term: Independent and Adequate State Ground
A state law basis for a judgment that is independent of federal law and sufficient on its own to support the result; if present, it bars Supreme Court review because the federal court’s decision could not change the outcome.

For example, if a state supreme court holds that a statute violates both the federal First Amendment and a similar but more protective provision of the state constitution, and makes clear that the state ground alone is sufficient, the U.S. Supreme Court lacks jurisdiction to review the judgment.

Limitations on Judicial Power

Article III and separation-of-powers principles impose substantial limits on federal courts.

• Case or Controversy Requirement

  Federal courts can only decide actual cases or controversies; they cannot issue advisory opinions. [U.S. Const. Art. III, §2]

Key Term: Case or Controversy Requirement
The constitutional limitation that federal courts may adjudicate only actual, ongoing disputes between adverse parties, not hypothetical questions or advisory opinions.

• Courts may issue declaratory judgments that resolve concrete legal disputes but not abstract legal questions.

• Congress may not require courts to issue advisory opinions to coordinate branches’ views on proposed legislation.

• Courts may not opine on the constitutionality of proposed statutes before they are enacted or of executive actions before they occur.

• Standing

  A plaintiff must have standing to sue, which requires:

  • A concrete injury in fact (actual or imminent, not abstract).
  • Causation (the injury fairly traceable to the challenged government action).
  • Redressability (a likely, not speculative, chance that the requested relief will remedy the injury).

Key Term: Standing
The requirement that a plaintiff demonstrate a concrete, particularized injury caused by the defendant’s conduct that is likely to be redressed by a favorable court decision.

Common standing issues in interbranch disputes:

• Taxpayer standing: Federal taxpayers generally lack standing to challenge how the government spends tax revenues, because their interest is too generalized. A narrow exception exists for suits alleging that congressional taxing and spending violates the Establishment Clause by funding religion.

Key Term: Taxpayer Standing
A very limited doctrine under which federal taxpayers may challenge congressional taxing and spending measures only when alleging a violation of the Establishment Clause under Congress’s Article I, Section 8 taxing and spending power.

• Third-party standing: A party generally may not assert the rights of others, but exceptions exist where there is a close relationship and a hindrance to the third party’s ability to sue (less common in interbranch questions).

• Legislative standing: Individual members of Congress usually lack standing to challenge executive actions that allegedly dilute their legislative power; injuries must be personal and particularized, not merely institutional.

• Ripeness and Mootness

  • Ripeness: Claims must not be brought too early; there must be a sufficiently concrete dispute.

Key Term: Ripeness
A justiciability doctrine requiring that a dispute be developed enough—typically involving a real threat of enforcement or actual harm—before a federal court will decide it.

• A challenge to a regulation that has not yet been adopted or enforced is often unripe.

• Courts assess the fitness of the issues for judicial decision and the hardship to the parties of withholding review.

• Mootness: A case must present a live controversy at all stages of litigation, with limited exceptions (e.g., issues capable of repetition yet evading review, voluntary cessation, or collateral consequences of criminal convictions).

Key Term: Mootness
A doctrine requiring dismissal of a case when events after filing end the plaintiff’s injury or eliminate the dispute, unless an exception applies (such as “capable of repetition yet evading review”).

• Political Question Doctrine

  Courts will not decide issues constitutionally committed to another branch or inherently incapable of judicial resolution.

Key Term: Political Question Doctrine
The principle that federal courts will not adjudicate certain constitutional disputes that are textually committed to another branch or lack judicially manageable standards, such as challenges to Senate impeachment procedures or some foreign policy decisions.

Typical political questions include:

• Challenges to the Senate’s procedures for trying impeachments. [Nixon v. United States (1993)]

• Issues committed to the political branches in foreign affairs (e.g., recognition of foreign governments, determination of when hostilities have ceased).

• Challenges to the “republican form of government” guaranteed to the states.

• Partisan gerrymandering claims. [Rucho v. Common Cause (2019)]

• Congressional Regulation of Jurisdiction

  Congress can:

  • Make exceptions to the Supreme Court’s appellate jurisdiction.
  • Define and limit the jurisdiction of lower federal courts (or abolish lower federal courts entirely).

  But Congress cannot:

  • Require federal courts to reopen final judgments.
  • Direct the outcome of particular cases by prescribing a rule for a single named case while leaving no judicial role.
  • Strip all avenues for the vindication of constitutional rights in federal court such that the judicial power is effectively nullified.

• Appointment and Removal of Judges

  Judges are appointed by the President with Senate confirmation and enjoy life tenure during “good behaviour” and protection against salary reduction. This judicial independence is itself a structural separation-of-powers protection, insulating courts from direct political control.

Worked Example 1.7

A federal statute provides that any challenge to a Senate impeachment trial may be brought in federal court and directs courts to review whether the Senate followed procedures consistent with “fundamental fairness.” A federal judge is impeached and convicted; she sues under the statute, arguing that the Senate’s procedures were unfair. Should a federal court hear the case?

Answer:
No. Challenges to the Senate’s conduct of impeachment trials present nonjusticiable political questions. The Constitution commits the “sole Power to try all Impeachments” to the Senate. Courts lack judicially manageable standards to review Senate impeachment procedures and have held such disputes to be political questions. Even though Congress purported to authorize review, it cannot override the constitutional commitment of this function to the Senate. [Nixon v. United States]

Worked Example 1.8

A national brewery files suit in federal court to challenge a proposed federal regulation that, if adopted, would ban the sale of unpasteurized beer. The agency is still taking public comments and has not issued a final rule. The brewery alleges that the regulation, if adopted, would violate its due process rights and exceed the agency’s statutory authority. Is the case justiciable?

Answer:
No. The claim is not ripe for adjudication. The agency has not yet issued a final regulation, and it is uncertain whether the proposed ban will be adopted, modified, or abandoned. The brewery has not shown a sufficiently concrete, imminent injury—only a speculative future harm. Federal courts avoid issuing advisory opinions on hypothetical future regulations. The proper course is dismissal for lack of ripeness, without prejudice to refiling if and when a final regulation is adopted that causes concrete harm.

INTERBRANCH IMMUNITIES

Each branch enjoys certain immunities related to its functions. These immunities are designed to preserve independence and prevent one branch from using litigation to dominate another.

• Executive Immunity

  The President has absolute immunity from civil damages for official acts taken while in office. [Nixon v. Fitzgerald (1982)] This immunity applies even if the acts are alleged to have been improper or unconstitutional, as long as they fall within the “outer perimeter” of official duties.

  • The President has no immunity from civil suits for acts committed before taking office, even if the suit is brought while in office. [Clinton v. Jones (1997)]
  • The question of whether a sitting President may be criminally prosecuted is unresolved in Supreme Court case law and is beyond typical MBE scope.

Key Term: Executive Immunity
The President’s absolute immunity from civil damages liability for official acts performed while in office, coupled with the absence of immunity for purely private conduct occurring before taking office.

Some presidential aides may share in absolute immunity when performing functions closely tied to presidential decision-making in sensitive areas (such as national security). Most other executive officials have only qualified immunity (they are liable only if they violate clearly established constitutional or statutory rights).

Executive privilege (discussed above) provides a separate, qualified protection for presidential communications.

• Legislative Immunity (Speech or Debate Clause)

  Members of Congress are immune from civil or criminal liability for statements made and conduct performed during the legislative process. [U.S. Const. Art. I, §6, cl. 1]

Key Term: Speech or Debate Clause
The constitutional provision granting Members of Congress (and certain aides) immunity from being questioned in any other place for “any Speech or Debate in either House,” covering conduct occurring in the regular course of the legislative process.

Key Term: Legislative Immunity
The protection afforded to Members of Congress and their legislative aides under the Speech or Debate Clause for legislative acts, shielding them from civil or criminal liability and questioning in other forums.

Scope:

• Covers speeches on the floor, voting, drafting legislation, committee work, and introducing bills.
• Extends to congressional aides for acts that would be protected if performed by a member. [Gravel v. United States (1972)]

Limits:

• Does not protect bribery or other criminal conduct that is not itself legislative action. [United States v. Brewster]

• Does not cover republication of statements outside Congress (e.g., press releases, newsletters, media interviews). [Hutchinson v. Proxmire]

• Does not extend to state legislators prosecuted under federal law. [United States v. Gillock]

• Judicial Immunity

  Judges have absolute immunity from civil liability for damages resulting from their judicial acts, even if performed maliciously or in bad faith.

Key Term: Judicial Immunity
The absolute immunity of judges from civil liability for damages arising out of acts performed in their judicial capacity and within their jurisdiction.

• Immunity does not cover purely administrative or non-judicial acts (e.g., hiring staff).
• Judges can still be subject to criminal prosecution, impeachment, or disciplinary proceedings.

Related doctrines:

• Prosecutors have absolute immunity for actions intimately associated with the judicial phase of the criminal process (e.g., initiating prosecutions), but only qualified immunity for investigative or administrative acts.
• Other executive officials typically have qualified immunity, shielding them from damages unless they violate clearly established rights.

Worked Example 1.9

A senator delivers a speech on the Senate floor accusing a private corporation of fraud. Later, she repeats the same accusations at a televised town hall in her home state. The corporation sues her for defamation based on both the Senate speech and the town hall remarks. Which, if any, of these statements are protected by legislative immunity?

Answer:
The senator is absolutely immune for the statements made on the Senate floor, because they are core legislative acts covered by the Speech or Debate Clause. She is not immune for the statements repeated at the town hall. Speeches to constituents and media appearances are not part of the formal legislative process and therefore fall outside the protection of legislative immunity. The defamation suit may proceed based on the town hall remarks.

Worked Example 1.10

A private citizen sues a federal district judge for damages, alleging that the judge’s evidentiary rulings and jury instructions in the citizen’s prior criminal trial were biased and violated due process. The citizen has exhausted all appeals. Is the civil suit for damages against the judge likely to succeed?

Answer:
No. The judge is protected by absolute judicial immunity for acts performed in a judicial capacity and within the court’s jurisdiction. Rulings on evidence and instructions are classic judicial functions. Even if the judge acted with improper motive or committed legal errors, judicial immunity bars a damages action. The citizen’s remedies were through appeal or habeas corpus, not a civil damages suit against the judge personally.

Exam Warning

Do not confuse the President's absolute immunity from civil damages for official acts with the lack of immunity for prior conduct or potential criminal liability. Also, note that the legislative Speech or Debate Clause immunity is broad for legislative acts but does not cover activities like taking bribes, communicating outside of Congress, or republishing defamatory statements in newsletters or media appearances.

Similarly, judicial immunity protects judges from damages for judicial acts, but does not bar appeals, habeas corpus, or disciplinary actions. Prosecutors and most executive officials have at most qualified immunity, which may be lost when clearly established rights are violated.

Revision Tip

Focus on the specific mechanisms of checks and balances. For the MBE, be able to:

• Identify which branch is checking which, and through what mechanism (veto, confirmation, impeachment, judicial review, appropriations, investigation).
• Distinguish valid checks (e.g., Senate confirmation, veto override, judicial review, jurisdictional regulation that leaves the judiciary functional) from invalid ones (e.g., legislative veto, congressional appointment of executive officers, Congress directing outcomes in particular cases).
• Recognize when the political question doctrine or other justiciability limits prevent judicial review of interbranch disputes.
• Analyze appointment and removal schemes, asking: Who appoints? Who can remove? What powers does the officer exercise? Is Congress trying to control an executive officer?

Understanding the limits on checks (e.g., legislative veto invalidity, qualified nature of executive privilege, nonjusticiability of impeachment procedures, narrow taxpayer standing) is as important as knowing the checks themselves.

Key Point Checklist

This article has covered the following key knowledge points:

• The Constitution divides federal power among three branches: Legislative (Art. I), Executive (Art. II), and Judicial (Art. III).
• Separation of powers prevents concentration of power; checks and balances allow each branch to limit the others.
• Bicameralism and presentment are required for valid federal lawmaking; attempts to change legal rights without them (e.g., legislative vetoes) are invalid.
• Key Congressional checks on the executive include impeachment, appropriations (power of the purse), veto override, Senate confirmation, investigations, and war powers.
• Key Congressional checks on the judiciary include Senate confirmation of judges, creation and structuring of lower federal courts, regulation of Supreme Court appellate jurisdiction (within limits), and impeachment of judges.
• Congress cannot exercise executive functions directly: it may not appoint or remove executive officers (except through impeachment), give executive powers to officers under congressional control, or use legislative vetoes to control agencies.
• Congress may delegate rulemaking authority to agencies if it provides an intelligible principle; most delegations are upheld under the non-delegation doctrine.
• Congress may regulate the jurisdiction of lower federal courts and make exceptions to the Supreme Court’s appellate jurisdiction, but may not reopen final judgments or dictate outcomes in particular cases.
• Key Executive powers include execution of the laws (Take Care Clause), veto power (including pocket veto but not line-item veto), appointment and removal (with limits), pardon power, commander-in-chief authority, and leading roles in foreign affairs through treaties and executive agreements.
• The President’s power is strongest when acting with congressional authorization, weaker when acting alone, and weakest when acting against the express or implied will of Congress (Youngstown framework).
• The President has no general power to refuse to enforce or fund statutes that are constitutional and mandatory, and no power to unilaterally suspend laws.
• Executive privilege is real but qualified; it yields to demonstrated needs for evidence in criminal prosecutions, with courts balancing confidentiality and the need for evidence.
• Key Judicial checks include judicial review of legislative and executive actions, interpretation of statutes and the Constitution, and review of state court decisions involving federal law (subject to independent and adequate state ground limits).
• Federal courts are limited by the case or controversy requirement, standing (including narrow taxpayer standing), ripeness, mootness, and the political question doctrine.
• Each branch possesses certain immunities relating to its official functions: executive immunity (for presidential official acts), legislative immunity under the Speech or Debate Clause (for legislative acts), and judicial immunity (for judicial acts).
• Many separation-of-powers questions on the MBE turn on structural defects—such as legislative vetoes, improper appointment or removal arrangements, attempts to assign executive functions to congressional officers, or nonjusticiable political questions.

Key Terms and Concepts

• Separation of Powers
• Checks and Balances
• Impeachment
• Power of the Purse
• Bicameralism
• Presentment
• Legislative Veto
• Appointment Power
• Principal Officer
• Inferior Officer
• Removal Power
• Non-Delegation Doctrine
• Intelligible Principle
• Take Care Clause
• Veto Power
• Pocket Veto
• Line-Item Veto
• Commander in Chief
• Executive Agreements
• Executive Order
• Executive Privilege
• Judicial Review
• Independent and Adequate State Ground
• Case or Controversy Requirement
• Standing
• Taxpayer Standing
• Ripeness
• Mootness
• Political Question Doctrine
• Speech or Debate Clause
• Legislative Immunity
• Executive Immunity
• Judicial Immunity