Bowsher v. Synar
The Court Refines The Meaning Of Separation Of Powers
After the Articles of Confederation had created the United States of America in 1777, they were found to be unworkable--in part because they concentrated all federal power in a single governmental body. This prototype Congress was not subject to the checks and balances of either an executive or a judiciary, and the founders feared that it might come to resemble the monarchy that they had so recently fought with for their independence. Consequently, when the Confederation Congress called for a Constitutional Convention to draft a new foundation document, the framers of the Constitution based their plan on a three-party (tripartite) government. While the people had the power to elect representatives (originally only to the House; state legislatures elected Senators), all legislation passed by Congress could be vetoed by the president. With the development of the doctrine of judicial review, it became clear that the judiciary would have the final authority in determining the constitutionality of legislative and executive branch actions.
The separation of powers was never meant to be absolute. As James Madison wrote in No. 47 of The Federalist Papers in 1788, although the control of the whole of one branch would not be vested in the same entities which controlled the whole of another branch, the three departments would inevitably share some power. The "blending" that Madison wrote about became more and more pronounced as federal government evolved, but in Bowsher, the Court was called upon to redraw boundaries which had become blurred. Writing for the Court, Chief Justice Burger did so:
Appellants suggest that the duties assigned to the Comptroller in the Act are essentially ministerial and mechanical so that their performance does not constitute "execution of the law" in a meaningful sense. On the contrary, we view these functions as plainly entailing execution of the law in constitutional terms. Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of "execution" of the law . . . Congress of course initially determined the content of the Balanced Budget and Emergency Deficit Control Act; and undoubtedly the content of the Act determines the nature of the executive duty. However . . . once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly--by passing new legislation.
Fortunately, the Gramm-Rudman-Hollings Act contained a fallback provision--one which conformed to the job description outlined in the Court's opinion. In the event that the comptroller general could not carry out his reporting duties under the act, deficit reduction proposals would be submitted to the president by means of a joint resolution of both houses of Congress. Rather than invalidating the statutory provisions giving Congress the power to remove the comptroller general, the Court recommended that Congress merely adhere to the alternative it had provided for itself.
- Bowsher v. Synar - The Balanced Budget And Emergency Deficit Control Act
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