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President lacks inherent powers to impound funds, and has been interpreted as "seemingly conclusive upon the question of inherent powers." Although different opinions were written by the Justices to strike down the seizure, "there was no disagreement among the six as to the lack of inherent Presidential powers. The consensus was that the investiture of the executive power in the President combined with the 'faithful execution' [clause] gave him no authority of a legislative nature."47

The implication, then, is that the impoundment of funds is an exercise of legislative power. One can just as easily argue, however, that it is of an executive nature. Moreover, the Steel Seizure Case was badly splintered-five Justices concurring and three dissenting. To locate a "consensus" among these different statements is difficult indeed. Only Justices Black and Douglas adhered to a strict view of separated powers, restricting the President to statutory and constitutional grants of power.48 The other four concurring Justices and the three dissenters were careful to avoid generalizations on the boundaries of executive action.

Thus, Justice Frankfurter concurred in the result of this decision but considered it imprudent to inquire into the more general areas of Presidential powers and their relationship to those of Congress." Justice Jackson cautioned that the decision to strike down the steel seizure should not become the occasion "to circumscribe, much less to contract, the lawful role of the President as Commander in Chief," especially when "turned against the outside world for the security of our society."5 Justice Burton distinguished tl.e steel seizure from a situation in which emergency powers might be invoked, as in the case "of an imminent invasion or threatened attack," or of "a mobilized nation waging, or imminently threatened with, total war."51 In the last of the concurring opinions, Justice Clark maintained that the Constitution "does grant to the President extensive authority in times of grave and imperative national emergency," and it mattered not whether one called this residual, inherent, moral, implied, aggregate, or emergency authority.52

The three dissenters adopted a broad view of Presidential power by supporting the seizure. Thus, seven out of nine Justices accepted a view of executive power which went beyond the mere exercise of duties specifically granted by the Constitution and by statutes.

47. Goostree, supra note 16, at 40; see Davis, supra note 17, at 48-51. 48. 343 U.S. at 535, 630.

49. Id. at 595, 597.

50. Id. at 645.

51. Id. at 659 (footnote omitted).

52. Id. at 662.

Separation of Powers

Impoundment of funds is also regarded53 as violative of the classical doctrine of separation of powers as described by Chief Justice Marshall: “The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law 1954 One can then conclude that if Congress makes the law (in this case an appropriations bill) and the President signs it, it is his constitutional obligation to spend the funds as directed.

Frequently ignored is Marshall's immediate qualification: "[B]ut the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily."55 The act in question, authorizing the courts to make and establish rules for the conduct of their business, was accordingly held to be compatible with the theory of separated powers.

A pattern was thus set for future decisions. After delivering highsounding tributes to the genius of separated powers, the Court would regularly adopt practical and workable definitions. For instance, in 1891 the Court declared it "a principle universally recognized" that Congress could not delegate legislative power to the President. The Court then upheld the delegation. In 1928 the Court said it would be "a breach of the National fundamental law" if Congress were to transfer its legislative power to the Presidert.57 Again the Court upheld the delegation. This record, repeated by other decisions, has prompted a syllogism which runs roughly as follows: Legislative power cannot be constitutionally delegated, however, it is sometimes necessary for Congress to delegate certain powers; therefore the power delegated is not legislative.55

A passage from a 1880 decision is often used to suggest that the Court thinks of separated powers in strict terms:

It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether State or national, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined.59

Nevertheless, this decision, involving the power of the House of Representatives to punish for contempt, recognized that there is no clean. separation between powers or departments. The power to punish, though primarily judicial, could at times be exercised by the legis

53. Davis, supra note 17, at 46-47.

54. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 44 (1825).

55. Id.

56. Field v. Clark, 143 U.S. 649, 692 (1891).

57. S.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928).

58. CUSHMAN, THE INDEPENDENT REGULATORY COMMISSIONS 429 (1941). 59. Kilbourn v. Thompson, 103 U.S. 168, 190-91 (1880).

lative branch. The House could punish its own members for disorderly behavior or for slack attendance; it participated in the impeachment process; and in special cases could even fine or imprison a witness for contumacy.co But it did not possess the general power to punish for contempt, and in this particular instance had assumed a function which could be discharged only by the judicial branch.

Nowhere in the Constitution is there an explicit statement of separated powers. It is supposedly implied by the opening sections of the first three articles, vesting legislative power in a Congress, executive power in a President, and judicial power in a Supreme Court and the inferior courts established by Congress. As the Court stated in 1925, however, complete independence and separation "are not attained, or intended, as other provisions of the Constitution and the normal operation of government under it easily demonstrate.""1

Furthermore, the intent of separated powers remains ambiguous. Justice Brandeis issued a famous dictum in which he maintained that the framers adopted a separation of powers "not to promote efficiency but to preclude the exercise of arbitrary powe.." "G2 A strong case can nevertheless be made that efficiency was a dominant factor in establishing a separate executive.63 From 1774 to 1789, the Government experimented with committees, boards, and single executives in an effort to remedy the administrative weaknesses of the Articles of Confederation. By process of trial and error it was discovered that a separate executive was essential for accountability and governmental efficiency. Shortly after the work of the Philadelphia Convention was completed George Washington made the following observation: "It is unnecessary to be insisted upon, because it is well known, that the impotence of Congress under the former confederation, and the inexpediency of trusting more ample prerogatives to a single Body, give birth to the different branches which constitute the present general government." If we acknowledge that the separation doctrine and the need for executive discretion are compatible and not antagonistic concepts, then the impoundment of funds is more easily reconciled with constitutional principles.

Justice Sutherland's decision in Springer v. Philippine Islands, exalting separation of powers in its doctrinal form, is also invoked by those who regard impoundment as unconstitutional. It is asserted that Springer "reaffirmed this basic constitutional division between

60. Id. at 190.

61. Ex parte Grossman, 267 U.S. 87, 119-20 (1925).

62. Myers v. United States, 272 U.S. 52, 293 (1926).

63. Fisher. Presidential Tex Discretion and 18th Century Theory, W. POL. Q. (to be published March 1970).

64. 30 THE WRITINGS OF GEORGE WASHINGTON 300 (Fitzpatrick ed. 1931). 65. Springer v. Philippine Islands, 277 U.S. 189 (1923).

the three branches of the Government. This decision has never been qualified by the Supreme Court or by the lower Federal courts."ce

At issue was a Philippine statute which transferred control over government-owned stock from the Governor to a board composed of the Governor and two legislative members. Sutherland held this repugnant to the Philippine Organic Act which placed all executive functions directly under the Governor or in one of his departments. In emphasizing the pervasive importance of separated powers, he declared it to be a general rule of the American 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 judicial power; the judiciary cannot exercise either executive or legislative power.""7

Not only did Justice Sutherland rely on a "general rule" which cannot be found in the Constitution, but the specific formulation of separated powers which he advanced was explicitly rejected in 1789 as an amendment to the Constitution. Virginia, Pennsylvania, and North Carolina urged the inclusion of a strict version of the separation doctrine in the national bill of rights, but Congress deleted this recommendation from the final list. Moreover, despite dicta on the American system and our governmental principles, Springer involved the Philippine Organic Act-not the U.S. Constitution—and is therefore extraneous to the issue of impoundments by the President. We should go beyond these observations, however, for the case lacks merit even when confined to the Philippine Islands.

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Prior to Sutherland's tenure on the Bench, the Court had left it in the states' domain to decide when a mixture of departments or powers was permissible. A state was under no obligation to live by a literal interpretation of its constitutional clause on the distribution of power. To take an early example, in 1825 a Pennsylvania court announced its decision regarding a property dispute, with which the state legislature subsequently disagreed. The case went back to the court and the legislative view prevailed. On appeal, Justice Washington of the Supreme Court observed that nothing in the Constitution "forbids the legislature of a state to exercise judicial functions."""

In a later case, an Illinois act establishing a State Board of Pardons was upheld by the state courts, although the act was in direct violation of two sections of the state constitution. Justice Harlan, writing for a unanimous Court, affirmed: "Whether the legislative, executive and judicial powers of a State shall be kept altogether distinct and separate, or whether persons or collections of persons belonging to one department may, in respect to some matters, exert powers which,

66. Davis, supra note 17, at 47 (footnote omitted). 67. 277 U.S. at 201-02.

68. DUMBAULD, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY 174-75, 183, 199 (1957); 1 ANNALS OF CONG. 453 (1834); 1 S. Jour. 1, 64, 73-74 (1820). 69. Satterlee v. Matthewson, 27 U.S. (2 Pet.) 380, 412 (1829).

strictly speaking, pertain to another department of government, is for the determination of the State."70

This was the position of the Court, prior to Sutherland, regarding separated powers on the state level. As for organic acts governing U.S. territories, the distribution clause was conspicuously absent. Although most of the state constitutions operating at the time of Sutherland contained a distribution clause, the Organic Act of the Philippine Islands did not, nor did the organic acts of Alaska, Hawaii, Panama Canal Zone, Puerto Rico, or the Virgin Islands.71

Sutherland was thus in error on two counts: for assuming a doctrinaire separation of powers at the state level, and for failing to admit that Congress, in legislating for the territories, had made no effort to bind these governments to the characteristics of the American system. In view of the political situation in the Philippines at the time Sutherland delivered his opinion, this projection of American ideas was doubly improper.72

In a fainous dissenting opinion, well-known for its trenchant quality, Justice Holmes drew attention to the fact that the "great ordinances of the Constitution do not establish and divide fields of black and white," and that "however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative

70. Dreyer v. Illinois. 187 U.S. 71, 84 (1902). See also Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 225 (1908); Carfer v. Caldwell, 200 U.S. 293, 297 (1906); Reetz v. Michigan, 188 U.S. 505, 507 (1903).

71. THE STATE CONSTITUTIONS AND THE FEDERAL CONSTITUTION AND ORGANIC LAWS OF THE TERRITORIES AND OTHER COLONIAL DEPENDENCIES OF THE UNITED STATES OF AMERICA 1555-1625 (Kettleborough ed. 1918).

72. The opening section of the 1916 Autonomy Act for the Philippines, ch. 416, 1, 39 Stat. 545. specifically cited independence as the objective. In order to achieve stable independence, the government was to be placed in the hands of the people as quickly as possible, so that, "by the use and exercise of popular franchise and governmental powers, they may be the better prepared to fully assume the responsibilities and enjoy all the privileges of complete independence." The American legislator who sponsored this bill explained that it "practically confers all legislative power upon that people, thus giving to them the control of their domestic affairs in all essential particulars." Tiongco. The Genesis of the Congress of the Republic of the Philippines, 1 Grad. and Fac. Studies, Centro Escolar Univ. 201 (1950).

The goal of complete autonomy was encouraged by Governor-General Francis B. Harrison. When his successor, Leonard Wood, tried to reimpose American control, Filipino leaders protested to Congress that the thecries and principles of Governor Wood were "utterly repugnant to the policies that go to make up the corner stone of Philippine autonomous government." It was incompatible with the theory of free government to inject "the autocracy of an irresponsible appointed executive into a representative democracy such as the Congress of the United States implanted in the Philippines.' ANNUAL REPORT OF THE GOVERNOR GENERAL OF THE PHILIPPINE ISLANDS FOR FISCAL YEAR 1923, H.R. Doc. No. 485, 68th Cong., 2d Sess. 44 (1923).

Filipino legislators set up national banks and corporations in an effort to prevent foreign exploitation and overcharging. Wood considered such measures contrary to laissez-faire principles and directed that the government ventures be disposed of as soon as possible. Short of this, he would have declared management of the government-owned corporations an exclusively

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