Bowsher V. Synar: (1986): Separation of Powers

• In 1985, Congress passed the Gramm-Rudman-Hollings act which stated that of the budget was not balanced by 1991, the Comptroller would order program cuts, through a “sequestration” process, which the President would have to sign unchanged.

• Majority: BURGER: The administration claimed that Congress could not give executive duties to a legislative officer. The Supreme Court agreed that the Comptroller General’s sequestration duties were unconstitutional because Congress could not vest executive functions in an officer removable by Congress.

• Dissent: WHITE: Considered this a response to a crisis similar to the New Deal legislation. Urged the Court not to impose their judgement on the wisdom of a statute the Congress and President assent too.

Morrison V. Olson (1988): Separation of Powers, Independent Counsel

• Following the scandals of Watergate, Congress established an independent “special prosecutor” to investigate charges against the President, Vice-President and high-level executive branch officials. Congress concluded that the Atty. Gen. may be faced with a conflict of interests. The independent counsel is to be appointed by a panel of federal judges, and can only be removed by the president for “good cause”.

• Majority (7-1): REHNQUIST: The Court rejected the constitutional arguments based on: the appointment power, the removal power, the separation of powers doctrine, and the President’s obligation to see that the laws are faithfully executed.

• Dissent: SCALIA: The executive power shall be vested in the a President of the United States (Art. II) “(T)his does not mean some of the executive power, but all of the executive power.”

Northern Pipeline Co. V. Marathon (1982): Separation of powers, delegation

• The Bankruptcy Reform Act of 1978 created a federal bankruptcy court in each district. The act had judges elected for terms, and controlled by Congress. The Act was challenged as unconstitutional on the ground that it conferred Article III judicial powers on judges who lacked the protection of life tenure and irreducible salaries. The Court’s opinion did not attract a majority. Brennan wrote a four-justice plurality. Rehnquist and O’Connor concurred with Brennan, but on narrower grounds. White, Burger, and Powell dissented.

• Majority: BRENNAN: The Court declared the bankruptcy courts to be “legislative” courts. The Court denied that Congress could create specialized courts to carry out one if its Article I powers. Although Congress had power to create uniform law on Bankruptcy, this authority did not permit Congress to rely on a non-Art. III court. Such reasoning “threatens to supplant completely our system of adjudication in independent Art. III tribunals and replace it with a system of “specialized” legislative courts.” The Court concluded that the Act had removed essential attributes of judicial power form Art. III courts and gave them to Non-Art. III courts.

Commodity Futures t.C. V. Schor (1986): Separation of Power, delegation

• The Commodity Exchange Act authorized CFTC to entertain state law counterclaims in adjudicatory proceedings in which disgruntled customers sought compensation from professional commodity brokers for the violation of statute

• Majority: O’CONNOR: Upheld the Act, insisting that the Court would not adopt formalistic and unbending rules that might also unduly constrict Congress’ ability to take needed innovative action pursuant to Art. I powers. The turning point seemed to be that unlike the Bankruptcy Reform Act, CTFC orders are only enforceable by order of the district court.