Patricia Wald The William B. Lockhart Lecture at the University of Minnesota Law School

The William B. Lockhart Lecture*
Life on the District of Columbia Circuit:
Literally and Figuratively Halfway
Between the Capitol and
the White House
Patricia M. Wald**
This is the Bicentennial Year of the Constitution and thus
a good time for back to the beginning thoughts. In the District
of Columbia Circuit, it is the year of separation of powers, as
indeed it was last year and probably will be next year. By separation of powers I mean the enduring debate over what is, or
should be, the role of the courts in relation to the executive and
the legislature on vital issues of the day. This question not only
infuses most of our big decisions these days, but also turns up
in the most unlikely places, like discussions of standing,’ or
,how to construe statutes,2 or whether Medicare patients should
be able to go to court for claims under $1000.3 I wonder if our
Founding Fathers knew what a hot topic separation of powers
would become. Indeed, Judge Posner has defined that current
paragon of jurisprudential virtue, a judicially “self-restrained”
judge, in separation of powers terms as one who “sets as an important goal of his decisionmaking the cutting back of the
power of his court system in relation to-as a check on-other
* The following lecture was delivered in April of 1987 at the University
of Minnesota Law School. The Lockhart Lecture Series is in honor of Dean
William B. Lockhart.
** Chief Judge, United States Court of Appeals for the District of Columbia. I wish to thank my former law clerk Edward Foley, J.D., Columbia
Law School, 1986, for his thoughtful assistance in the preparation of this
speech.
1. See, e.g., Haitian Refugee Center v. Gracey, 809 F.2d 794, 801-07 (D.C.
Cir. 1987).
2. See, e.g., Abourezk v. Reagan, 785 F.2d 1043, 1053 (D.C. Cir.), cert
granted, 107 S. Ct. 666 (1986).
3. Bartlett ex reL Neuman v. Bowen, 816 F.2d 695, 703-13 (D.C. Cir. 1987).
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government institutions. ‘4
Critics of the courts accuse judges of violating the separation of powers principle in far less temperate terms. According
to those critics, the federal courts commit daily such atrocities
as restructuring state and local government through reapportionment rulings, radically transforming criminal procedures,
improvising extraconstitutional rights to privacy, protecting
hard core pornography, and subverting the nation’s internal security. Indeed, one recent litany of our transgressions ends
with the Shakespearean entreaty: “Now, in the names of all
the gods at once, Upon what meat do these our Caesars feed,
that they have grown so great?” 5 As a newly minted Chief
Judge, I find all this pretty ironic, especially when the General
Services Administration threatens to close the only cafeteria
within miles of the courthouse; when I am unable to find a
messenger to deliver a package to the Administrative Office;
when I have to take the subway to a Judicial Conference meeting at the Supreme Court; and when my pleas for heat on the
weekends and hot water or towels in the washrooms are
cruelly rejected.
Situated as the D.C. Circuit is, however, it is not surprising
that separation of powers dominates our current deliberations.
We get the lion’s share of the “political” cases. In our circuit,
the federal government is a litigant in well over eighty percent
of all cases. When individual legislators or the leadership
in the two Houses decide to enter the judicial arena, they find it
an easy walk or subway ride to our courthouse. We have
sent Buckley v. Valeo,6 the Pentagon Papers,7 and the
Gramm/Rudman/Hollings8 separation of powers challenges to
the Supreme Court. We are currently entertaining a challenge
to the constitutionality of the Independent Counsel. 9 Moreover, our members include three ex-Senators or Representatives and seven others who previously held senior executive
4. Posner, The Meaning of Judicial SelfiRestraint, 59 IND. L.J. 1, 11-12
(1983).
5. Stanneyer, Judicial Supremacy, in THE NEW RIGHT PAPERS (R. Whitaker ed. 1982) 147 (“slight paraphrase” of W. Shakespeare, Julius Caesar, act I, sc. 2, lines 149-50).
6. 519 F.2d 821 (D.C. Cir. 1975), affd in part and rev’d in part, 424 U.S. 1
(1976).
7. United States v. Washington Post Co., 446 F.2d 1327 (D.C. Cir.), afftd
sub nom. New York Times Co. v. United States, 403 U.S. 713 (1971).
8. Synar v. United States, 626 F. Supp. 1374 (D.D.C.) (per curiam), affid
sub nom. Bowsher v. Synar, 106 S. Ct. 3181 (1986).
9. In re Sealed Cases, No. 87-5261 et seq. (D.C. Cir. Aug. 24, 1987).
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branch positions. A stint in one of the other branches seems almost a prerequisite to service on our court. The president and
Congress seem extraordinarily interested in us; as a rule our
appointments draw more attention than those of other courts.
We are exquisitely aware of the separate powers of
government.
The judges in our circuit have widely divergent ideologies,
and separation of powers has become the battleground for
fighting out many of our basic differences about what courts
can legitimately decide. The frequency and variety of contexts
in which the doctrine is invoked nowadays, however, suggest
that the Bicentennial may be a blessing in ceremonial disguise
if it forces us to rethink what that fundamental concept meant
to the Founding Fathers two hundred years ago and whether
they might praise or condemn what we are doing with it these
days.
I would like to describe today a few not-so-easy pieces of
the separation of powers puzzle in our circuit. If you sense a
reference to the classic Jack Nicholson movie of similar name,
you may remember the great scene: “Give me a BLT, forget
the bacon, drop the mayo,” and so on.’0 Actually, it’s not such a
bad analogy to the way separation of powers is handled in some
of our cases. We invoke the concept, but leave out many of its
vital ingredients.
The first piece of the separation of powers puzzle concerns
just how strictly the Founding Fathers meant to separate the
three powers-executive, legislative, and judicial-into untouchable sectors. Some recent Supreme Court decisions such
as INS v. Czadha,”1 wiping out the legislative veto, and Bowsher
v. Synar,32 invalidating the comptroller general’s role in
Gramm/Rudman/Hollings budget slicing, do read as though
there is something definable and identifiable as executive
power, which can be exercised only by executive branch employees, something quite different called legislative power, exercisable only by legislators, and something called judicial
power, exercisable only by article III judges. To quote former
Chief Justice Burger in United States v. Nixon,3 “the ‘judicial
Power of the United States’… can no more be shared with the
Executive Branch than the Chief Executive… can share with
10. Five Easy Pieces (Columbia 1970).
11. 462 U.S. 919 (1983).
12. 106 S. Ct. 3181 (1986).
13. 418 U.S. 683 (1974).
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the Judiciary the veto power, or the Congress share with the
Judiciary the power to override a Presidential veto.’ 4
Notwithstanding what Professor Strauss labels “certainty’s siren call,’u 5 most constitutional scholars know it’s just not so.
Our proof, of course, is the administrative agency that so
dominates the Washington scene, combining all three functions-executive, legislative, and judicial-in one body, a phenomenon which the Supreme Court has not yet conceptualized
in any coherent manner. These alphabet agencies operate in
open defiance of a rigid separation of powers theory. Indeed, a
few creative post-Synar lawyers have argued in our court that
the agencies themselves are unconstitutional, but so far the
court has avoided the issue.’ 6
Many authorities believe that the Founding Fathers did not
intend the branches to operate in splendid isolation from one
another, but rather that they should enter freely into mutually
beneficial arrangements so long as the checks and balances inherent within the system assured that disproportionate power
did not aggregate in one branch uncontrolled by the others.
Thus, the more appropriate inquiry in separation of powers
cases might be not whether there has been some spillage of
pure executive power into the legislature or pure legislative
power into the executive, but whether in performing an essential function one branch is unnecessarily inhibited or disrupted
by another or whether so much power vests in one branch that
it subordinates the others.
The Supreme Court sometimes seems to recognize this
need for flexibility and sometimes not. In Commodities Futures Trading Commission v. Schor,17 Justice O’Connor, correctly I believe, reversed an opinion of our court that held
Congress could not administratively give the Commission the
power to resolve private state law setoff claims against the
main brokerage accounts it regulated because such private state
law claims could only be heard in an article III court., The
Court skirted gingerly around the Marathon’9 precedent and
14. Id at 704 (internal quotation omitted).
15. Strauss, The Place of Agencies in Government- Separation of Powers
and the Fourth Branch, 84 COLUM. L. REV. 573, 626 (1984).
16. Ticor Title Ins. Co. v. Federal Trade Comm’n, 814 F.2d 731 (D.C. Cir.
1987).
17. 106 S. Ct. 3245 (1986).
18. Id at 3257-61.
19. See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S.
50, 58 (1982) (Brennan, J., plurality opinion) (“The Federal Judiciary was
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ultimately called the agency neither an executive nor a legislative tribunal, but rather a neutral “non-Article III tribunal.”20
Upholding the agency’s statutory scheme, the Court thus bowed
to the practicalities of commerce and a coherent adjudication
system, warning that “formalistic and unbending rules [in the
area of separation of powers may] … unduly constrict Congress’ ability to take needed and innovative action pursuant to
its Article I powers.” 21 The result was eminently sensible, even
if the reconciliation with Supreme Court precedent was a trifle
fuzzy. Earlier, Justice White, dissenting in Chadha, had emphasized as well that the “history of the separation-of-powers doctrine is also a history of accommodation and practicality.” 22
What is interesting to a first-time reader of the Constitution is that the phrase “separation of powers” appears nowhere
in the document. Article I says that all legislative powers shall
vest in Congress; 23 article II says that the executive power shall
vest in a president;A and article III says that the judicial power
shall vest in one Supreme Court and in such inferior courts as
the Congress may ordain or establish.25 The Framers, however,
did not attempt to define precisely the scope of these three
powers and left the operational lines between the branches to
be worked out by events, evolution, and history. They did, of
course, set out specific instances where exclusive power was
delegated to one branch, such as the presidential veto26 or its
override by Congress, 27 or the nomination of judges by the
president and their confirmation by the Senate.23 At the same
time, however, the Framers provided for a vast reservoir of implied powers through the “necessary and proper” clause of article I, section 8, thus effectively undermining notions that the
Constitution’s enumeration of specific examples of the several
powers was meant to be exclusive and that no power was ever
to be shared. Indeed, in many instances, the Constitution itself
contemplates the branches sharing power. For example, the
president shares legislative power through his veto authority,
therefore designed by the Framers to stand independent of the Executive and
Legislature …. “).
20. 106 S. Ct. at 3256-58.
21. Id. at 3258.
22. INS v. Chadha, 462 U.S. 919, 999 (1983).
23. U.S. CONST. art. I, § 1.
24. U.S. CONST. art. II, § 1.
25. U.S. CONST. art. III, § 1.
26. U.S. CoNsT. art. I, § 7.
27. Id
28. U.S. CONST. art. II, § 2.
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and the House and Senate share judicial power through their
authority to impeach and try article III judges.29
From what little we can tell, the Framers worried most
about checking undue concentrations of power in any one
branch. The separation of powers was more a means to that
end than an end in itself. In The Federalist Number 47,
Madison defined the evil that separation of powers was intended to avoid: “[T]he accumulation of all powers, legislative,
executive, and judiciary, in the same hands, whether of one, a
few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of
tyranny.”30
Interestingly, Madison says “the accumulation of all powers.., in the same hands.” 31 That, of course, is a far cry from
some powers crossing bounds in some situations. Madison made
this point clearly in discussing Montesquieu’s often misinterpreted statement: “‘There can be no liberty where the legislative and executive powers are united in the same
person …. “-32 Madison explained that Montesquieu “did not
mean that these departments ought to have no partial agency
in, or no control over, the acts of each other. His meaning…
can amount to no more than this, that where the whole power
of one department is exercised by the same hands which possess the whole power of another department, the fundamental
principles of a free constitution are subverted.”3 3 In a separate
Federalist paper, Madison emphasized further that “the powers
of government should be… divided and balanced among several bodies… [so] that no one could transcend their legal limits without being effectually checked and restrained by the
others.” 34
In The Federalist Number 51, his most important pronouncement on separation of powers, Madison asserted that the
greatest security against a concentration of the several powers
in the same department consisted in giving those who administered each department the constitutional means and personal
motives to resist the encroachments of the others: “Ambition
must be made to counteract ambition.” 35 Pragmatically, the
29. U.S. CONST. art. I, § 3.
30. THE FEDERALIST No. 47, at 301 (J. Madison) (C. Rossiter ed. 1961).
31. I. (emphasis added).
32. Id. at 302 (citing 1 C. MONTESQUIEU, THE SPIRIT OF LAws 222 (1766)).
33. Id. (emphasis in original).
34. THE FEDERALIST No. 48, at 311 (J. Madison) (C. Rossiter ed. 1961).
35. THE FEDERALIST No. 51, at 322 (J. Madison) (C. Rossiter ed. 1961).
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Framers envisioned a kind of “permanent guerrilla warfare”
between the branches.3 6 Citizens’ liberty would be protected
against an overpowering government through fragmentation
and competition among its branches, continuously checking and
balancing each other.
Over the past few years our court has wrestled with the
conflict between rigid and more flexible separation of powers
notions in, of all things, standing cases. Old, prosaic standing
doctrine, while always rooted in the case or controversy requirement of article III, has taken on a distinct separation of
powers sheen lately. It is no longer enough, for some judges at
least, that a plaintiff show a concrete injury that the court can
redress, fall within the congressional zone of interest, and
demonstrate a “fairly traceable” causation between the injury
and the governmental action challenged. The putative plaintiff
also may now have to pass an additional separation of powers
test that takes ever new and exotic forms.
Judge Bork’s dissenting opinion in Barnes v. Kline37 is exemplar. In that case, the Senate and House, along with thirtythree individual House members, challenged President Reagan’s veto of a bill requiring human rights certification of countries receiving foreign aid. The President pocket vetoed it
between two sessions of Congress. The legal issue centered on
the pocket veto provision of the Constitution, which applies
only when “the Congress by their Adjournment prevent [the
bill’s] Return,”38 and whether an adjournment prevented the
return of the bill where Congress had designated an agent to
receive presidential communications between sessions. The executive said the pocket veto was valid while the Congress said it
was not. The panel majority agreed with the Congress.
Judge Bork, however, filed a wide-ranging, sixty-three
page dissent3 9 propounding the view that the courts should not
have decided the case at all because neither the individual
members of Congress nor the two Houses of Congress could
challenge the veto in court under article III. Article III, he asserted, barred any government official or body from pursuing
in federal court any claim, the gravamen of which was that an36. Strauss, supra note 15, at 604 (quoting Levi, Some Aspects of Separation of Powers, 76 COLUM. L. REV. 371, 391 (1976)).
37. 759 F.2d 21, 41-71 (D.C. Cir. 1985), vacated as moot sub hoin. Burke v.
Barnes, 107 S. Ct. 734 (1987).
38. U.S. CONST. art. I, § 7, cl. 2.
39. Judge Bork’s dissent ran 63 pages in the slip opinion and 30 pages in
the West Reporter. See 759 F.2d at 41-71.
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other governmental official or body had unlawfully infringed
its official prerogatives or powers.40 Judge Bork argued that
our prior precedents permitting suits by members of Congress
in some circumstances need not be followed because they did
not give proper scope to the separation of powers underpinning
of standing.41 He went on to demand that the circuit “renounce
outright the whole notion of congressional standing.” He
wrote:
Questions of jurisdiction are questions of power … over . .. other
branches of government …. [J]udges can determine the extent of
their own power within American government by how they define
cases and controversies…. [Tihe proper definition of those terms is
crucial to the maintenance of the separation of powers that is central
to our constitutional structure….
… A federal judiciary that is available on demand to lay down
the rules of the powers and duties of other branches and of federal
and state governments will quickly become the single, dominant
power in our governmental arrangements…. A majority of Supreme
Court Justices will have something very like the power to govern the
nation by continuously allocating powers and inhibitions to every
other governmental institution. 4 3
Judge Bork seems to be saying that members of the executive branch or of the Congress cannot seek the aid of the judiciary in enforcing their authority under the Constitution. Under
his view, if the courts agree to decide such disputes at the behest of one of the quarreling branches, they will become so
powerful as to violate the spirit of separation of powers.
The panel majority, on the other hand, saw the issue in
traditional terms. Judge McGowan wrote that “when a proper
dispute arises concerning the respective constitutional functions
of the various branches . . ., ‘[ilt is emphatically the province
and duty of the judicial department to say what the law is.”’44
The pocket veto dispute presented a “constitutional impasse” 4 –
between the executive and the legislature and thus the court
was not being asked to provide relief to legislators who had
failed to gain their ends in the legislative arena. On the contrary, the legislature’s fight was exclusively with the executive,
and it could do nothing to resolve that dispute within its own
40. 759 F.2d at 43-47.
41. Id at 67-71.
42. Id- at 41.
43. I& at 43-44, 54.
44. I- at 26-27 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177
(1803)).
45. Goldwater v. Carter, 444 U.S. 996, 997 (Powell, J., concurring).
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chambers. The court was not being asked for an advisory opinion on a hypothetical question, but rather for a declaration
about the validity of a particular veto. Congress had suffered a
specific and concrete harm to its powers under article I, and the
court would decide it.
The issue posed by Judge Bork remains inchoate. Barnes
was accepted for certiorari in the Supreme Court but later vacated as moot because the appropriation legislation that gave
rise to it had by its own terms run out in the interim.4 6
There are two interesting by-products of Barnes. One is
the reappearance in a separation of powers guise of the supposedly fading political question doctrine, whereby courts eschew
cases whose resolution is either committed by the Constitution’s text to another branch, has no manageable standards by
which the courts can judge, or is likely to produce divisive public repercussions or to bring disrepute on the courts or the
country. The doctrine has always troubled legal scholars because it deviates from the Marbury v. Madison mandate to
courts to say what the law is and because its contours are so
indistinct.47
Lately, the political question doctrine has seemed out of
vogue at the Supreme Court, which has bypassed several opportunities to give it new life. For example, in 1979 Justice Powell
refused to provide a fifth vote when the doctrine was invoked
regarding whether the president needed to go to the Senate or
the House to revoke the Taiwan Treaty.48 And just last term,
in Japan Whaling Association v. American Cetacean Society,
the Court refused the government’s invitation to back away
from the alleged “political question” of whether the Secretary
of Commerce had to certify to the president a Japanese violation of whale hunting restrictions:4 9 “It is ‘error to suppose
that every case or controversy which touches foreign relations
lies beyond judicial cognizance.’ . . . [U]nder the Constitution,
one of the judiciary’s characteristic roles is to interpret statutes,
and we cannot shirk this responsibility merely because our decision may have significant political overtones.” 50
In our own circuit we have wavered on the political ques46. See Burke v. Barnes, 107 S. Ct. 734, 736-37 (1987).
47. See, e.g., Henkin, Is There A “Political Question” Doctrine?, 85 YALE
L.J. 597, 600-01 (1976).
48. 444 U.S. at 998-1001.
49. 106 S. Ct. 2860, 2866 (1986).
50. Id (quoting Baker v. Carr, 369 U.S. 186, 211 (1961)).
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tion doctrine. In one case we rejected it as an excuse not to adjudicate the right of an American citizen who owned land in
Honduras to recover for seizure of that land by Americanbacked Honduran military forces. “The political question doctrine,” Judge Wilkey said, “is a tempting refuge from the adjudication of difficult constitutional claims. . . . [But t]he
Executive’s power to conduct foreign relations free from the
unwarranted supervision of the Judiciary cannot give the Executive carte blanche to trample the most fundamental liberty
and property rights of this country’s citizenry.”5
‘ In another
case we said that the Director of the Agency for International
Development’s interpretation of a restriction on appropriations
to countries whose population policies promoted abortion was
not immune from judicial review under the political question
doctrine.5 2 Despite these cases, we have dismissed as nonjusticiable two suits brought by members of Congress challenging,
under the War Powers Act, the United States support of the
Contras in Nicaragua53 and the rendering of military assistance
to the government of El Salvador.54
Reflecting on these decisions, it is, quite candidly, hard to
articulate the reasons why we should not decide the respective
powers of Congress and the president under the War Powers
Act but should decide their powers under the Constitution’s
pocket veto clause or under an international whaling agreement. That has always been the volatility of the political question doctrine-it requires each time an ad hoc judgment of the
courts whether to decide legal issues because of the political
consequences. Now, if Judge Bork’s views prevail, it appears
that a straight invocation of separation of powers will accomplish the same end by allowing the court to use an equally
amorphous standard to decide whether the matter presents a
“case or controversy” in the first place.
The second by-product of the Barnes decision worth noting
is that it implicitly extends the bar against courts deciding in51. Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1514-15 (D.C. Cir.
1984) (emphasis omitted), vacated on other grounds, 471 U.S. 1113 (1985).
52. DKT Memorial Fund, Ltd. v. Agency for Int’l Dev., 810 F.2d 1236, 1238
(D.C. Cir. 1987); see also Population Inst. v. McPherson, 797 F.2d 1062, 1068-70
(D.C. Cir. 1986) (holding decision by AID’s administrator to prohibit funding
earmarked by Congress for the United Nations Fund for Population Activities
presented justiciable political question).
53. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 210 (D.C. Cir. 1985).
54. Crockett v. Reagan, 720 F.2d 1355, 1356-57 (D.C. Cir. 1983), cert denied, 467 U.S. 1251 (1984).
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trabranch disputes to a bar against deciding interbranch disputes as well. There have, of course, always been cases
involving disputes within the other branches that courts have
declined to hear. However, even these can involve close questions. For example, our court refused to decide a suit by Indiana Republicans seeking to compel the House of
Representatives to seat their candidate because the election had
been niiscertified,5 5 We called it a classic political question, citing the constitutional provision: “Each House shall be the
judge of the . . . Qualifications of its own Members.”56 In another case, involving the immunity of the legislative branch
under the speech and debate clause from a suit challenging the
firing of a reporter for a House committee, we again refused to
intervene because her duties were “directly related to the due
functioning of the legislative process”5 7 despite an earlier decision that the dismissal of the Senate cafeteria’s manager had no
such immunity.58 We also refused to decide a suit challenging
the accuracy of the Congressional Record.5 9 These were all
suits the court stayed out of in deference to the right of the
other branches to run their own shops. In Thomas Jefferson’s
words:
In order to give to the will of the people the influence it ought to
have,… it was a part of the common law, adopted as the law of this
land, that their representatives, in the discharge of their functions,
should be free from the cognizance or coercion of the coordinate
branches, Judiciary and Executive.60
Barnes, however, sails into unchartered waters in refusing
to countenance members of one branch invoking the assistance
of another branch to assert their constitutional powers. Assuming the Barnes position has merit, such a per se ban would
seem to consign each branch to the vagaries of politics to determine its rights. It is far from clear, however, that the Constitution places such a hermetic seal on each branch or that the
separation of powers doctrine places such inelastic restraints on
55. Morgan v. United States, 801 F.2d 445, 447-50 (D.C. Cir. 1986), cert denied, 107 S. Ct. 1359 (1987).
56. U.S. CONST. art. I, § 5 (cited in Morgan, 801 F.2d at 445-46).
57. Browning v. Clerk, U.S. House of Representatives, 789 F.2d 923, 929
(D.C. Cir.) (emphasis omitted), cert. denied, 107 S. Ct. 601 (1986).
58. Walker v. Jones, 733 F.2d 923, 928-31 (D.C. Cir.), cert. denied, 469 U.S.
1036 (1984).
59. Gregg v. Barrett, 771 F.2d 539, 542-43 (D.C. Cir. 1985).
60. 8 WORKS OF THOMAS JEFFERSON 322-23 (P. Ford ed. 1904), quoted in
Browning, 789 F.2d at 927 n.8.
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access to the courts for declarations regarding how the Constitution was meant to operate.
The second piece of the separation of powers puzzle roiling
the calm of our circuit is its historically close, but frequently
forgotten, tie to individual freedom and the Bill of Rights. The
Founders saw the dual bulwarks of separation of powers and
the Bill of Rights as supporting and supplementing each other
to protect citizens from the tyranny of their governors.6 1
Madison thought originally that separation of powers by itself
assured sufficient protection; he was eventually convinced by
Jefferson of the need for a bill of rights as well.62 In selling the
Bill of Rights to Madison, Jefferson’s strongest argument was
that it would be enforceable by the judiciary who would have
the authority to invalidate acts of Congress or the executive
that violated those rights. One of the great virtues of the Bill
of Rights, Jefferson said, was “the legal check which it puts
into the hands of the judiciary. This is a body, which if rendered independent, and kept strictly to their own department
merits great confidence for their learning and integrity. ‘6 3
Indeed, when Madison introduced his proposed Bill of
Rights on the floor of the House of Representatives on June 8,
1789, he repeated the argument:
It may be thought that all paper barriers against the power of the
community are too weak to be worthy of attention…. Met… [ilf
they are incorporated into the Constitution, independent tribunals of
justice… will be an impenetrable bulwark against every assumption
of power in the Legislative or Executive; they will be naturally led to
resist every encroachment upon rights expressly stipulated for in the
Constitution by the declaration of rights.64
The Founders’ view of the judiciary must be seen in the
context of that time. They were not drawing a compact for a
pure democracy; they were giving birth to a republic. When’
the Constitution was adopted, only the House of Representatives was to be elected by the people.65 The Senate was chosen
by the state legislatures and the president by the electoral college. The great chasm that scholars and some judges now see
between the popularly elected branches and the unelected judi61. See generally A. Cox, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT 31, 114-15 (1976).
62. L. LEVY, CONSTITUTIONAL OPINIONS 117-20, 143 (1986).
63. Letter from Thomas Jefferson to James Madison (March 15, 1789), re- printed in 1 B. SCHwARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY
620 (1971).
64. 1 ANNALS OF CONG. 437-39 (1789).
65. At the time, suffrage was confined to white, male property owners.
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ciary simply did not exist at the beginning of the Republic. The
so-called “counter-majoritarian difficulty” with judicial review
is, as Professor Alex Bickel notes, a product of the ensuing two
centuries of democratic reforms.66
Thus, when we encounter present-day separation of powers
rhetoric about the “properly limited… role of the court in a
democratic society” 67 or “the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in
our kind of government,”6 8 we must place it in historical perspective. Usurpation of power by the judiciary or the power’s
undemocratic origins were not major concerns of the Framers.
They looked to the judiciary as the branch primarily entrusted
with protecting the liberties of citizens from the excesses of the
other two branches. 69
This is not to diminish the great democratic transformations that have occurred in our country over the past two hundred years. On the contrary, the “political branches” should
serve and be accountable to the will of the majority. At the
same time, however,- we must not lose sight of the need to protect the rights of individuals and minorities. Madison and Jefferson understood the dangers to liberty posed by a tyranny of
the majority as well as those posed by a hereditary monarch,
and both expressly recognized the judiciary as the people’s
guardian against those threats.
Some of my colleagues on the circuit have, however, discovered in the separation of powers doctrine a new rationale
for restricting judicial review of executive or congressional action that violates the Bill of Rights. Two recent cases in the
circuit are illustrative. In Bartlett ex rel. Neuman v. Bowen,7 0 a
Medicare patient challenged the constitutionality of a law bar66. A. BICKEL, THE LEAST DANGEROUS BRANCH 16-23 (1962).
67. Warth v. Seldin, 422 U.S. 490, 498 (1975).
68. Barnes v. Kline, 759 F.2d 21, 44 (D.C. Cir. 1985) (Bork, J., dissenting),
vacated as moot sub nom. Burke v. Barnes, 107 S. Ct. 734 (1987).
69. See THE FEDERALIST No. 78 (A. Hamilton) (C. Rossiter ed. 1961):
The complete independence of the courts … is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one
which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of
justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations
of particular rights or privileges would amount to nothing.
Id. at 466.
70. 816 F.2d 695 (D.C. Cir. 1987).
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ring receipt of benefits for treatment in a nursing facility unaffiliated with Christian Science by anyone who, during the same
spell of illness, received benefits for treatment in a Christian
Science-affiliated facility. The district court had dismissed the
plaintiff’s claim, grounded in the free exercise clause, because
of a provision of the Medicare law that barred judicial review of
claims below $1000. The majority, Judges Edwards and Wright,
held that the separation of powers doctrine required the court
to construe the no-review provision as inapplicable to constitutional claims because: “A statutory provision precluding all judicial review of constitutional issues removes from the courts
an essential judicial function under our implied constitutional
mandate of separation of powers, and deprives an individual of
an independent forum for the adjudication of a claim of constitutional right.”71 They thus remanded the basic constitutional
challenge to the district court for trial.
Judge Bork disagreed with the majority. He felt that no
constitutional problem existed in the bar on judicial review because the age-old doctrine of sovereign immunity precluded
any suit against the government for money, whether or not
constitutional claims were involved, unless Congress had explicitly waived the sovereign’s immunity.72 Congress had not
done so here.
The suggestion of broad congressional authority to limit judicial review implicit in the Bartlett dissent was reinforced by
Judge Bork’s position-this time in the majority-in another
recent case, Haitian Refugee Center v. Gracey.73 In that case he
asserted that separation of powers required the judiciary to
show extreme restraint in exercising its power to decide cases
and controversies, even those involving individual liberties.74
Judge Bork rejected, for lack of standing, a constitutional challenge by a group advocating the rights of Haitian refugees to an
executive branch program of interdicting Haitian refugees on
the high seas. After first acknowledging that the group had
shown an injury to its rights of association and that under
traditional causation rules the injury was traceable to the interdiction decree, he still found its showing insufficient for
standing. Judge Bork made that finding on the basis of an independent requirement, which he said “follow[s] directly from
71. Id. at 703 (emphasis in original).
72. Id. at 713 (Bork, J., dissenting).
73. 809 F.2d 794, 804-07 (D.C. Cir. 1987).
74. Id.
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the separation of powers principle,” 75 that an organization
claiming interference with its relationship to third parties must
show that the purpose, not just the effect, of the challenged
governmental action was to disrupt that relationship. Judge
Bork elaborated: “‘[Causation’ … is something of a term of
art, taking into account not merely an estimate of effects but
also considerations related to the constitutional separation of
powers as that concept defines the proper role of courts in the
American governmental structure.”7 6 The purpose requirement, said Judge Bork, “implements separation of powers because it is necessary to prevent the virtually limitless spread of
judicial authority. ’77 His two fellow panel members declined to
follow this aggressive lead. Judge Buckley came to the same
result applying established standing criteria78 while Judge Edwards dissented.79 Subsequently, the Supreme Court indicated
in a different case that it would not apply such a test either.8 0
These two cases illustrate the extremes in the way judges
of a single circuit regard the separation of powers mandate.
Judge Edwards views it as a mandate to courts to enforce the
Bill of Rights and other constitutional guarantees of individuals
and to assure that power is not aggregated disproportionately in
any one branch of government. Judge Bork views it as a control the judiciary should impose upon itself to prevent enlarge75. I& at 807-11.
76. Id. at 801.
77. 1d. at 805.
78. Id at 818-20 (Buckley, J., concurring).
79. Id at 826-27 (Edwards, J., concurring and dissenting).
80. In Meese v. Keene, 107 S. Ct. 1862, 1864 (1987), a California Senator
challenged the constitutionality of a federal statute pursuant to which the Attorney General labeled three films about acid rain and nuclear war “political
propaganda.” The Senator wished to exhibit these films to viewers but alleged
that the “political propaganda” label affected his relationship with his constituents, thereby lessening his chance for reelection and otherwise damaging his
reputation in his community. Id Plaintiff did not allege, and could not have
shown, that the purpose of the Attorney General’s decision to label the films
as “political propaganda” was to injure his relationship with his constituents.
Id at 1867. Nevertheless, the Supreme Court held that plaintiff had standing
to bring the constitutional challenge. Id at 1869. The Supreme Court applied
the traditional causation inquiry: whether plaintiff’s injury is fairly traceable
to defendant’s allegedly unlawful conduct. See id.
Moreover, the Supreme Court cited with approval a decision of this circuit
holding that a film distributor whose “potential customers declined to take the
film because of the classification,” had standing to’ raise the same constitutional challenge to the labeling. Id. at 4589 n.9 (citing Block v. Meese, 793 F.2d
1303, 1308 (D.C. Cir. 1986)). By indicating that the film distributor had standing, the Supreme Court appeared to reject the Bork purpose requirement.
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ment of its own powers but should be slow to impose upon the
other two branches when they are allegedly enlarging their
powers. The Founding Fathers, I think, would have been
stunned by this. Their premise was that each branch would
from time to time seek to expand its own powers but that these
acts would be contained by the checks and balances inhering in
the other branches. I doubt the Founding Fathers envisioned
that the judiciary would focus so intently on limiting its own
power at the same time it conceded the other branches large
doses of unreviewable power. Were it so, what has historically
been considered a paramount function of the judiciary-to enforce the Bill of Rights on behalf of all citizens against the infringements of the political branches-would be ominously at
risk.
Still another unsettled piece of the separation of powers
puzzle is whether the principle of separation of powers can survive in a country increasingly dominated by national security
concerns. The Framers worried originally about an all-powerful legislature, but Jefferson accurately predicted that “[t]he
tyranny… of the executive will come in it’s [sic] turn.”81
There can be little doubt that the executive branch is now
in the ascendancy. The executive controls the bureaucracy and
the military, spends the money, and has access to the expertise
and information that defines power. In particular, the mounting threat of aggression or subversion from abroad, as a practical matter, results in the exercise by the executive of more and
more unreviewable power. In the words of Arthur Schlesinger,
Confronted by presidential initiatives at home, Congress and the
courts-the countervailing branches… under the separation of powers-have robust confidence in their own information and judgment.
But confronted by presidential initiatives abroad, Congress and the
courts, along with the press and the citizenry, generally lack confidence…. Consequently, in foreign policy the disposition has been to
hand over power and responsibility to the president. .. . The imperial
presidency, once a transient wartime phenomenon, has become …
institutionalized.8 2
While the judiciary has shown considerable independence
in resisting the inroads on judicial review of the political question doctrine, the mere mention of national security often
causes courts to turn tail and run. National security is the real
81. Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), reprinted in 1 B. SCHwARTz, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY
621 (1971).
82. Schlesinger, The Imperial Temptation, NEW REPUBLIC, Mar. 16, 1987,
at 17.
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reason, I believe, why we will decide a Japanese Whaling case
but not a War Powers case. This tendency to retreat in the
wake of national security claims is troubling in an age where
virtually every executive action can legitimately claim some national security component. And even on those occasions where
courts do entertain a case in the field of foreign affairs, they
often avoid searching review.
Yet not long ago the Supreme Court in the Pentagon Papers case insisted on judging for itself whether the national security risks outranked the constitutional right of press
freedom.8 3 Justice Brennan emphasized that “no prior judicial
restraints of the press [may be] predicated upon surmise or conjecture that untoward consequences may result.” 4 Justice
Black added, “I can imagine no greater perversion of history”
than that “the general powers of the Government adopted in
the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of
Rights. ‘8 5 Justice Marshall concluded: “It would… be utterly
inconsistent with the concept of separation of powers for this
Court to use its power of contempt to prevent behavior that
Congress has specifically declined to prohibit.”8 6 Even Justice
Stewart, who believed that the “Constitution gives the Executive a large degree of unshared power in the conduct of foreign
affairs and the maintenance of our national defense, [and] the
largely unshared duty to determine and preserve the degree of
internal security necessary to exercise that power successfully,”8 7 ultimately decided for himself that the danger of revealing the papers’ contents did not outweigh the values of
permitting their publication.8
Regrettably, the spirit of the Pentagon Papers case may be
spent. Later cases, such as Regan v. Wald,8 9 have fostered a
doctrine of executive infallibility in the field of foreign relations and national security. In Regan the Supreme Court held
83. New York Times v. United States, 403 U.S. 713, 725-26 (1971) (per
curiam) (refusing to enjoin newspapers from publishing the contents of the
Pentagon Papers).
84. Id (concurring) (footnote omitted).
85. 1d& at 716 (concurring).
86. 1d, at 742 (concurring).
87. Id. at 728-29 (concurring).
88. Id at 730. Justice Stewart concluded: “I cannot say that disclosure of
any of [the Pentagon Papers] will surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so, there can under the
First Amendment be but one judicial resolution of the issues before us.” Id
89. 468 U.S. 222, reh’g denied, 469 U.S. 912 (1984).
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that “[m]atters relating to the conduct of foreign relations are
so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or
interference.”’90
In our own circuit, the separation of powers concept has
been invoked repeatedly in deference to the executive in cases
with national security overtones. Three cases illustrate the
point. Abourezk v. Reagan91 involved the government’s right to
deny temporary visas to visiting aliens based on its belief that
their membership in Communist organizations would threaten
the nation’s foreign policy objectives. One subsection of the Immigration and Naturalization Act of 1952 requires the secretary
of state to certify that admission of such aliens would be “contrary to the security interests of the United States.”92 Given
that specific provision, the majority found that another more
general subsection directing exclusion if the attorney general
has reason to believe that the alien “seek[s] to enter the United
States… to engage in activities which would be prejudicial to
the public interest,”93 an easier standard, could not be used to
justify exclusions based on membership in a Communist organi90. Id. at 242 (internal quotation omitted). It is also interesting to compare the Pentagon Papers case with another, more recent Supreme Court decision involving a confrontation between the Pentagon and a first amendment
claimant. In Goldman v. Weinberger, 106 S. Ct. 1310, 1311 (1986), an Air Force
captain who was an Orthodox Jew claimed that an Air Force regulation forbidding him to wear his yarmulke while in uniform violated his rights under
the free exercise clause of the first amendment. The majority of the Court rejected this claim, deferring to the “considered professional judgment” of the
military officials that allowing yarmulkes to be worn would harm the military’s interest in discipline and esprit de corps. Id. at 1313-14. In contrast to
the Pentagon Papers Court, the Goldman Court did not articulate how much
harm to the military’s legitimate interests yarmulke-wearing would have to
cause in order to justify its prohibition. Similarly, the Court did not itself undertake (or order a lower court to undertake) any independent inquiry on the
issue of how likely it is that yarmulke-wearing would cause harm to legitimate
military interests. Thus, Justice Brennan, with Justice Marshall concurring,
dissented vigorously from the Court’s decision:
Simcha Goldman invokes this Court’s protection of his First Amendment right to fulfill one of the traditional religious obligations of a
male Orthodox Jew-to cover his head before an omnipresent God.
The Court’s response to Goldman’s request is to abdicate its role as
principal expositor of the Constitution and protector of individual liberties in favor of credulous deference to unsupported assertions of
military necessity.
Id at 1316. Justices Blackmun and O’Connor also thought that the Court
went too far in deferring to the Pentagon in this case. See id. 1324-26.
91. 785 F.2d 1043 (D.C. Cir.), cert. granted, 107 S. Ct. 666 (1986).
92. 22 U.S.C. § 2691(a) (1982).
93. Id. § 1182(a) (27).
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zation alone.94
Judge Bork dissented in Abourezk on the ground that normal principles of statutory construction did not apply to foreign
affairs and the Chevron9s principle of deference to an agency’s
construction of a statute applied with “special force” where the
case involved a “delegation to the Executive of authority to
make and implement decisions relating to the conduct of foreign affairs. ’96 He viewed the majority’s adherence to normal
principles of statutory interpretation as initiating “a process of
judicial incursion into the United States’ conduct of its foreign
affairs.” 97
The second case, Halperin v. Kissinger,98 was part of a national security trilogy authored by then Judge, now Justice,
Scalia. The case involved a suit for damages resulting from
twenty-one months of a warrantless wiretap on a private telephone. It was the first case in our circuit to decide what criteria determine the liability of officials who violate constitutional
rights in the name of national security. In an earlier Supreme
Court decision, Harlow v. Fitzgerald,99 the Supreme Court had
set up an objective test for ordinary government officials that
shields them from civil liability insofar as their conduct does
not “violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”‘z °
Lower courts had held, however, that Harlow’s reasonable person test-a proscription against considering subjective intentapplied only with respect to the actor’s knowledge of the relevant law, and not to other questions of intent.’0 ‘ For example,
if the government agent undertook the challenged conduct out
of racial animus, the conduct would be unlawful, and Harlow
did not preclude judicial inquiry into the actor’s subjective intent for this purpose. In the area of government wiretaps, a
warrantless wiretap is lawful under both the relevant federal
statute 0 2 and the fourth amendment if undertaken for reasons
of national security. The wiretap subject in Halperin argued
94. 785 F.2d at 1057.
95. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S.
837 (1984).
96. 785 F.2d at 1063 (Bork, J., dissenting).
97. Id. at 1076.
98. 807 F.2d 180 (D.C. Cir. 1986).
99. 457 U.S. 800 (1982).
100. Id at 818.
101. See, e.g., Kenyatta v. Moore, 744 F.2d 1179, 1183-84 (5th Cir. 1984), cert.
denied, 471 U.S. 1066 (1985).
102. 18 U.S.C. § 2511 (1968).
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that only an actual national security motivation should immunize an official from liability for constitutional wrongdoing. 0 3
Rejecting this argument, the court instead held that a government official purporting to act on the basis of national security
need only show that his purported motive would have been reasonable under the circumstances, not that he actually believed
that what he was doing was in aid of national security.
In effect, Halperin created a special immunity doctrine for
national security cases as opposed to all other cases, a departure
Judge Scalia justified on separation of powers grounds. Proclaiming that “[t]he separation-of-powers concerns that underlay Harlow are especially prominent in the national security
field… [a]nd the harm produced by ‘dampen[ing] the ardor of
[public officials] in the… discharge of their duties’ is particularly severe in the national security field,’104 the panel pronounced a much broader rule for immunity in national security
cases than in other constitutional violation cases. Admitting
that a comparable expansion of Harlow in such cases would
create a “massive expansion of official immunity,’10 5 Judge
Scalia limited it to national security cases only.
Finally, the third case, Finzer v. Barry,0 6 involved a District of Columbia statute which banned “display[ing] any flag,
banner, placard, or device designed… to bring into public disrepute political, social, or economic acts, views, or purposes of
any foreign government, party, or organization” in front of an
embassy. 0 7 In short, it permitted signs in front of an embassy
only if they were supportive of the foreign country. Judge
Bork’s majority opinion upheld the statute, counseling
superdeference to the political branches even in the area of
content-based restrictions on speech: “[Tihere are,” he said, “certain classes of decisions which courts are institutionally less
suited to make”’08 and these encompass even first amendment
cases if they involve “the conduct of American foreign policy”
including “defining and enforcing the United States’ obligations
under international law.”‘1 9 Incidentally, Finzer did not rest
on national security grounds, but rather on the need to pre103. 807 F.2d at 183.
104. Id. at 187 (citations and internal quotation omitted).
105. Id. at 186.
106. 798 F.2d 1450 (D.C. Cir. 1986), cert. granted sub nom. Boos v. Barry,
107 S. Ct. 1282 (1987).
107. D.C. Code Ann. § 22-1115 (1981).
108. Finzer, 798 F.2d at 1459 (footnote omitted).
109. Id at 1458.
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serve the dignity of the embassy: “[A] court cannot lightly dispute a determination by the political branches that the statute
meets important international obligations,” the panel decision
held.110
I hasten here to note that I dissented in Finzer. My concern was that the majority was “too willing… to sacrifice first
amendment freedoms to the generality of political decision
making in the area of foreign affairs without carefully inquiring whether international obligations and national security concerns are really implicated at all, and if they are, whether the
statute fulfills those interests with the least amount of intrusion into cherished constitutional rights.””.1 The Supreme
Court will decide.” 2
These cases may reflect a spreading pattern of withdrawal
by the courts in monitoring individual rights when national security is invoked. Terrorism, nuclear dangers, and subversion
all presage more frequent assertions by the executive-and
sometimes by the Congress-that overriding national security
concerns disarm the courts in passing on the conflicts between
government and individuals which, ironically, are likely to arise
increasingly in the foreign affairs and national security context.
Once again the judiciary’s paramount function under the separation of powers doctrine to enforce the rights of individuals
against the government may be in jeopardy.
Our circuit has undergone many changes in the past few
years. I know of no swifter shift in the balance of a court of
appeals in this century. It is hard to predict the future direction of separation of powers at this time. Will it be used by
those determined to reinforce the judiciary’s role as the protector of individual rights or by those who would erect it as a barrier to judicial oversight of the actions of the other branches?
Chief Justice Marshall, almost two hundred years ago, declared
in Marbury v. Madison that the function of the judiciary was to
declare what the law is; to declare the rights of individuals
against the democratic majority under a Constitution which
constrains that majority by a Bill of Rights; to decide the meaning of power-conferring clauses in the Constitution; and to interpret acts of Congress. Today, many believe there is as much
danger in a retreat by judges from that constitutional responsi110. Id at 1459.
111. Id& at 1478 (Wald, J., dissenting) (emphasis omitted).
112. See Boos v. Barry, 107 S. Ct. 1282 (1987) (petition for certiorari
granted).
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bility through unyielding deference to an extreme view of separation of powers, as there is in the possibility that they will
assume, by some as yet undefinable means, tyrannical power
over government.
In this Bicentennial Year, the D.C. Circuit reflects all the
tensions of this latest and perhaps gravest confrontation over
the rightful place of separation of powers under our Constitution. For two hundred years the doctrine has served the Republic well by preventing the assumption of power by a single
branch. More than ever, we must today be wary of revisionist
constitutional theories that would threaten the historic balance
among the three branches of government.
Throughout our history, events have tested the durability
of separation of powers. Jefferson, the eloquent spokesperson
for judicial oversight of the Bill of Rights in 1789, scarcely a
decade later as President assailed the integrity and loyalty of
the federal courts that sought to insure due process in the trial
of Aaron Burr, calling them protectors of traitors.11 3 The ideal
of judicial independence and separation of powers endured,
however, beyond the lifetimes and occasional changes of heart
of its constitutional authors. Now, two hundred years later, in
the shadow of the Capitol and the White House, the eleven
judges of the D.C. Circuit, and judges everywhere in the Nation, debate the meaning and application of separation of powers to questions of individual liberties and national security
unimagined by the Founders. The outcome of the debate may
shape the Republic for a long time to come.
113. See L. LEVY, supra note 62, at 178.
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