Is it possible to give contemporary shape to the principles of constitutional structure we know as "separation of powers"? That question was sharply presented once again on the final day of the Supreme Court's most recent Term, when it decided two cases raising separation-of-powers issues. In Bowsher v. Synar, I the subject of this symposium, the Court found constitutional fault in Congress's asserted expansion of its own powers at the expense of the President's article II authority. Commodity Future Trading Commission v. Schor,2 far less widely noted, upheld against constitutional challenge Congress's assignment to an administrative adjudicator of the power to resolve a counterclaim arising under state common law, that might have been thought to require disposition by an article III court. The basic problem facing the Court in each case was accommodating the enormously complex and varied structure of the federal government, as it has grown over the years, to the Constitution's provisions for distributing the power of government among three named heads of authority, each of which in contemplation performs a unique function. In this sense at least, the cases ask the same constitutional question: how should the judiciary assess Congress's exercise of its general authority to provide such structure for the affairs of government as it deems "necessary and proper" in light of the Constitution's clear statement that "all legislative powers herein granted" are vested in "Congress," "the executive power" is vested in the "President," and "the judicial power" is vested in the "Supreme Court" and any lower courts Congress chooses to establish?3
Peter L. Strauss,
Formal and Functional Approaches to Separation- of- Powers Questions - A Foolish Inconsistency?,
Cornell L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/435