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“Government,” “Law,” and the Separation of Powers

Published online by Cambridge University Press:  02 September 2013

Kenneth C. Cole
Kenneth C. Cole
Affiliation:
University of Washington
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Extract

The continued growth of administrative agencies exercising legislative and judicial (or, if one prefers, “quasi-legislative” and “quasi-judicial”) powers furnishes a constant inducement to reevaluate the separation of powers theory. In a general way, the theory is admittedly hostile to this development as involving an inordinate concentration of power in the executive. Accordingly, we are presented with the problem of whether governmental practice should be accomodated to the theory or the theory revised to fit practice.

Of course the pressure of circumstance has already made a considerable impression on doctrinal exposition. Thus it is not seriously contended that the delegation of any rule-making power to administrative agencies is necessarily a delegation of legislative power within the meaning of the doctrine. Nor is it seriously contended that the right of such agencies to conduct a trial and come to a formal judgment thereupon is necessarily a delegation of judicial power—again within the meaning of the doctrine.

Type
Research Article
Information
American Political Science Review , Volume 33 , Issue 3 , June 1939 , pp. 424 - 440
Copyright
Copyright © American Political Science Association 1939

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References

1 It should be noted, however, that Professor J. P. Comer insists that rule-making power is equivalent to legislative power. He sees a violation of separation of powers wherever such a delegation has occurred. Cf. his valuable study The Legislative Functions of National Administrative Authorities (Cambridge, 1932)Google Scholar. Professor James Hart, on the contrary, follows the Supreme Court in reconciling the delegation of subordinate rule-making with the doctrine. Cf. The Ordinance-Making Powers of the President (Baltimore, 1925)Google Scholar. The Supreme Court itself has had its difficulties in determining what “legislative” means, and no one is likely to contend that any consistent definition illumines the reports. Cf. Aikin, Charles, “The Nature and Exercise of Legislative Power,” Georgetown Law Journal, Vol. 26, pp. 606–636Google Scholar.

2 Panama Refining Co. v. Ryan et al., 293 U. S. 388; Schechter Poultry Corp. v. U. S., 295 U. S. 495; Carter v. Carter Coal Co., 298 U. S. 238. The periodical literature on the subject of delegated legislative power since these decisions has become a formidable commentary. For purposes of the present paper, it is not necessary to inquire into the judicial definition of a bad delegation.

3 There is even more difficulty in determining what constitutes the essential judicial power which cannot be delegated than in determining what constitutes the essential legislative power. It is clear, however, that the Supreme Court would never permit Congress to insulate any administrative decision on matters of “law” from judicial review. To what extent questions of fact may be adjudicated finally by an administrative agency is debatable. Cf. Tollefson, , “Administrative Finality,” Michigan Law Review, Vol. 29, pp. 839–849CrossRefGoogle Scholar; Blachly, and Oatman, , Administrative Legislation and Adjudication (Washington, 1934)Google Scholar. The best discussion of the whole subject is still Freund's, ErnstAdministrative Powers over Persons and Property (Chicago, 1925)Google Scholar. Recent congressional legislation tends to adopt the formula of the Federal Trade Commission Act which excludes the Commission's findings of fact from judicial review if they are supported by “substantial” evidence. On the other hand, the American Bar Association's Committee on Administrative Law regards a complete review of the facts as also essential, and this view seems to have been adopted in the recent (1938) New York constitution.

4 Cf. Dickinson, John, Administrative Justice and the Supremacy of Law (Cambridge, 1927)Google Scholar, where this point is eloquently urged.

5 This is the separation-of-powers argument against delegation. The other technical argument is founded on the private law maxim, delegata potestas non potest delegari. The claims of this maxim to any legitimate public law application have been thoroughly exploded in Duff, and Whiteside, , “Delegata non potest delegari,” Cornell Law Quarterly, Vol. 14, pp. 168–196Google Scholar. See also Ray, G. K. and Wienke, Harvey, “Hot Oil on Uncharted Seas of Delegated Powers,” Illinois Law Review, Vol. 29, pp. 1021–1040Google Scholar; McGowan, John D., “An Economic Interpretation of the Doctrine of Delegated Power,” Tulane Law Review, Vol. 12, pp. 189–199Google Scholar. In the popular mind, the danger of dictatorships is another argument against delegation. Of course dictatorship depends on the fact of subservience to the dictator. A delegation of wide powers is never in itself evidence of subservience, nor is the absence of delegated power in itself evidence of freedom.

6 The qualification must be made to take account of the formal constitutional theory under which all public acts are in the name of the Crown.

7 Cf. F. W. Maitland, expressly rejecting the term “executive” as well as the term “administrative” to describe the power of the king. Constitutional History of England (Cambridge, 1920), p. 196Google Scholar. “Executive” is, of course, an essentially ambiguous word. It may mean the power of governing, as when applied to a medieval monarch; it may mean the function of acting as the agent of the governing authority, as applied to a modern cabinet; it may mean both, as applied to the American president. Cf. Fairlie, John A., in Essays on the Law and Practice of Governmental Administration (Baltimore, 1935), pp. 16 ffGoogle Scholar. The struggle over the meaning of executive power in American constitutional law is summarized in Corwin, E. S., Twilight of the Supreme Court (New Haven, 1934), pp. 123 ffGoogle Scholar. The confusion which results when separation-of-powers terms are used without appreciating their ambiguity is well illustrated by the remarks of Mr. Justice Sutherland in Rathbun v. United States, 295 U. S. 602.

8 Cf. C. H. McIlwain, The High Court of Parliament, for the classic exposition of the judicial character of the medieval Parliament. Cf. also Plucknett, T. F. T., Statutes and their Interpretation in the First Half of the Fourteenth Century, pp. 47 ff.Google Scholar, and Allen, C. K., Law in the Making (Oxford, 1927), pp. 250–254Google Scholar.

9 I have no wish to disparage those other institutional oppositions which have also been important in protecting liberty. Cf. Walter Lippmann, The Method of Freedom. But these other oppositions—such as that between church and state, and that between the various social classes under the mixed constitution—are no longer effective. The opposition between dominium and imperium is closely related to that between law and government.

10 Montesquieu really makes only one abortive attempt to define the functions that he intends to separate. For the rest, he is content to describe the various things that he thought the independent departments did. It would have helped had he distinguished between an analysis of technical functions of government and the setting up of equal organs of government. Cf. Sharp, M. P., “The Classical American Doctrine of the Separation of Powers,” University of Chicago Law Review, Vol. 2 pp. 385–486CrossRefGoogle Scholar; Finer, Herman, The Theory and Practice of Modern Government (London, 1932), Vol. 1 at p. 154Google Scholar; Brand, James T., “Montesquieu and the Separation of Powers,” Oregon Law Review, Vol. 12 at p. 80Google Scholar; Sabine, G. H., History of Political Theory (New York, 1937), at p. 559Google Scholar. In addition to all this, Montesquieu confuses the separation of powers with the mixed constitution. Cf. Wilson, F. G., “The Mixed Constitution and the Separation of Powers,” Southwestern Social Science Quarterly, Vol. 15, pp. 1–16Google Scholar.

11 The complete dependence of the separation-of-powers theory on the British model is admitted by Continental authorities. Cf. Esmein, A., Élements du droit constitutionnel (8th ed., Paris, 1928)Google Scholar; de Villeneuve, Marcel de la Bigne, La Fin du principe de separation des pouvoirs (Paris, 1934)Google Scholar. As to the originality of Montesquieu, see Radin, Max, “The Doctrine of the Separation of Powers in the Seventeenth-Century Controversies,” University of Pennsylvania Law Review, Vol. 86, pp. 842–866CrossRefGoogle Scholar.

12 Cf. Parkinson, Thomas I., Cases and Materials on Legislation (New York, 1934)Google Scholar, for a good selection of cases showing the use of common law preconceptions in the interpretation of legislation.

13 It is this ideal of judicial interpretation that justifies English and American writers on jurisprudence in defining law in terms of what the judges do—for example, Sir John Salmond and Professor J. C. Gray—but to turn the judges into an Austinian sovereign, as the latter inclines to do, is an unjustifiable simplification. What is actually happening is the application of institutional or traditional law ideas in the interstices of positive law. Cf. Watkins, F. M., The State as a Concept of Political Science (New York, 1934)Google Scholar, where this translation of the struggle between law and the state is fully appreciated.

14 An ambiguous euphemism similar to “source of law” as a description of legislation. Actually, the allegiance of the legal profession in this country and England is to a different kind of law than legislation. From this standpoint, legislation should be described as merely an exercise of authority under, or according to, law. Albert Kokourec marks the dualistic phenomenon of practicing an imperative theory of law and nature and believing in a metaphysical law of nature: “Justice, and its companion term, Reason, have long been established as the inviolable and transcendant arcana of positive law.” Trans, intro. to Miraglia, Comparative Legal Philosophy, p. XIII.

15 Whenever such a course has been possible, legislatures have usually hastened to ratify the particular exercise of authority by the executive which gave rise to the controversy. Typical of the legislative reaction in such cases was the action of Congress in rushing through the Connally bill embodying the content of the executive order nullified by the Supreme Court in the “hot oil” case.

16 It need not be asserted that this is conscious or deliberate on the part of the judges. On the other hand, there are entirely too many instances of conservative bias in judicial interpretation of statutes to blame everything on defectiveness of legislative draftsmanship. Professor Laski's retort to the complacent majority of the Sankey Committee on this point is excellent. Report of the Committee on Ministers' Powers (London, 1932), pp. 135–137Google Scholar.

17 Cf. Freund, Ernst, Legislative Regulation (Chicago, 1932)Google Scholar, Chaps. 1 and 2, for the distinction between regulatory and declaratory rules and that between law legislation and government legislation.

18 The legislative draftsman tends to regard the courts as an unsympathetic critic whose technique of interpretation must be mastered in order to forestall emasculation of his work. Cf. Luce, Robert, Legislative Problems, pp. 38–39Google Scholar.

19 This is Walter Lippmann's well argued thesis in An Inquiry into the Principles of the Good Society (Boston, 1937)Google Scholar.

20 Equity escaped the axe of the Long Parliament only by succumbing to the paralysis of law in 1603, Star Chamber and High Commission were abolished, and the possibility of further use of prerogative to curb the courts was forever foreclosed. The common law courts inherited much of the jurisdiction formerly exercised by the prerogative courts. For example, the Star Chamber's jurisdiction on seditious libel fell to the Court of King's Bench.

21 On this point there is substantial agreement between supporters and opponents of administrative adjudication. Even the former (e.g., Robson, W. A., Justice and Administrative Law, London, 1928)Google Scholar look to “judicialization” of administrative tribunals as a condition precedent to attaching any degree of finality to administrative decisions. There is almost as much “protest” literature on administrative justice in England as there is in the United States.

22 Cf. Willis, John, The Parliamentary Powers of English Government Departments (Cambridge, 1933)Google Scholar, for a good description of the methods used by Parliament to this effect. Cecil Carr's book, Delegated Legislation, is still useful for a view of the extent of statutory rules and orders. A tribunal of conflicts on the Continental model is the answer of Hart, W. O. in “Administration and the Law,” Public Administration, Vol. 14, pp. 301 ffCrossRefGoogle Scholar.

23 It is sufficient to express a general obligation to the writings of Charles A. Beard, E. S. Corwin, and C. G. Haines on this subject.

24 When it is asserted that judicial review protects “vested interests,” the usual inference is that this interest is peculiar to a small minority group. Cf. Edgerton, H. W., “The Incidence of Judicial Control over Congress,” Cornell Law Quarterly, Vol. 22, pp. 299–348Google Scholar. The security of transactions and acquisitions is of interest to everyone.

25 Cf. Alfange, Dean, The Supreme Court and the National Will (New York, 1937)Google Scholar, where the rôle of the judges as statesmen is a little over-emphasized at the expense of the technical considerations which do place more restraints on freedom of decision than he admits. See Dodd's, W. F. review of the book in University of Pennsylvania Law Review, Vol. 86, pp. 324–326CrossRefGoogle Scholar.

26 This refers, of course, to the parts of the Constitution which enunciate principles rather than those parts which deal with specific quantities. The principles as expounded by the courts constitute as much of a “natural law” as if the Supreme Court had adhered to the early and tentative doctrine that natural justice and reason might warrant it in refusing to enforce an act of Congress despite the absence of relevant constitutional provision. Cf. Maggs, Douglas B., “The Constitution and the Recovery Legislation: The Rôles of Document, Doctrine, and Judges,” in Legal Essays in Tribute to O. K. McMurray, ed. by Radin, and Kidd, (Berkeley 1935), pp. 399–438Google Scholar.

27 ProfessorGoodheart, A. L. is right when he says: “The legislative sovereign having been killed in the United States, the legal sovereign succeeds to his throne. Law is no longer what the supreme legislature commands, it is now what the supreme judge does.” Modern Theories of Law (London, 1933), p. 2Google Scholar of an essay entitled “Some American Interpretations of Law.”

28 As a matter of fact, Hamilton's famous argument in the 78th number of the Federalist is in part based on the necessity for judicial review to prevent the members of the legislature from substituting their will for that of their constituents.

29 Renewed interest in this subject in the last two years is responsible for many good articles, e.g., Fite, K. B. and Rubenstein, L. B., “Curbing the Supreme Court—State Experiences and Federal Proposals,” Michigan Law Review, Vol. 35, pp. 762 ffCrossRefGoogle Scholar.

30 Government by Judiciary (New York, 1932), Vol. 1, p. 101Google Scholar.

31 157 U. S. 429.

32 The problem of jurisdiction remains unsettled. That Congress may, by repealing the statutory provision under which any particular appeal is taken to the Supreme Court, deprive the Court of any right to proceed, has been recognized since the famous McCardle case (7 Wall. 506); but whether, having provided for the hearing of any particular cause, Congress could exclude judicial consideration of certain questions is not clear. The Supreme Court has given some indication that it would distinguish between “jurisdiction” and “inherent powers in the exercise of jurisdiction” to protect itself. See U. S. v. Klein, 13 Wall. 128; Michaelson v. U. S., 266 U. S. 42; Willoughby, W. W., On the Constitution of the United States, Vol. 3, at p. 1623Google Scholar.

33 The fact that there were unworkable compromises between legislative and judicial supremacy is suggested in Ernst, Morris, The Ultimate Power (New York, 1937), p. 173Google Scholar, but it cannot be denied that they reflected the unwillingness of many of the framers to accept the latter alternative.

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