Formal and Functional Approaches to Separation-of-Powers Questions – A Foolish Inconsistency?

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\u27s most recent Term, when it decided two cases raising separation-of-powers issues. In Bowsher v. Synar, the subject of this symposium, the Court found constitutional fault in Congress\u27s asserted expansion of its own powers at the expense of the President\u27s article II authority. Commodity Future Trading Commission v. Schor, far less widely noted, upheld against constitutional challenge Congress\u27s 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\u27s 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\u27s 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\u27s 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