The Separation of Powers Struggle

...Neither side would be entirely satisfied with this...

...Such a compromise, however, would seem compatible with the rationale offered by George Washington in his limited defense of Executive secrecy...

...for that matter, the plan finally adopted clearly compromises the principle...

...The Founding Fathers' overriding concern with independence rather than the separation of powers might appear to support Nixon's assertion that the principle of confidentiality is "essential to maintaining the balance among the three branches of government...

...But he insisted that he could not cross "the boundaries fixed by the Constitution between the different departments" in this case, between the Senate and President as one department and the House of Representatives as the other...

...The Federalist Papers, written by Madison, Hamilton and Jay, responded to the charge...

...Congress asked for detailed information on the ill-advised and politically embarrassing undertaking?basically the same kind of information involved in the Jay Treaty imbroglio And Washington discussed the issue with his Cabinet...

...History demonstrates, though, that the men who drafted the Constitution did not mean to totally compartmentalize the powers of government...

...As the President continues stonewalling Congressional subpoenas for Watergate evidence, therefore, prudence would appear to dictate that we comprehend just what the framers of the Constitution intended (and sought to protect) by dividing the national government into three parts...

...In fact, he agreed that the House would be entitled to the information in an impeachment proceeding, but tartly noted that the request "has not expressed" impeachment as its purpose...

...While acknowledging that "the accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny," he contended that all governments necessarily blended various powers and combinations of powers...

...At the same time, he pointed out that existing state constitutions flagrantly violated the doctrine in both theory and practice, despite their professions of general adherence to it...

...and James Wilson (if the former was the father of the Constitution, then the latter must be regarded as its close uncle) both insisted that the Judiciary should share the veto power with the President...

...It is noteworthy, however, that the framers of the Constitution, while reserving a form of secrecy for Legislative deliberations, did not do so for the Executive...

...Though Thomas Jefferson's notes reflect an agreement "in principle" that some data might be withheld on "public interest" grounds, in the end Washington decided to comply with the request and made no mention to Congress of the Cabinet deliberations...

...The debates about the treaty-making function indicated a similarly broad view of the separation principle...

...THE SEPARATION OF POWERS STRUGGLE BY ISIDORE SILVER / trust that no part of my conduct has ever indicated a disposition to withhold any information which the Constitution has enjoined upon the President, as a duty to give, or which could be required of him by either House of Congress as a right...

...the French philosopher "did not mean that these departments ought to have no partial agency, in, or no control over, the acts of each other...

...In its classical formulation by Montesquieu, Madison maintained, separation did not require strict compartmentalization, but simply that no one branch of government should exercise all of the powers of any other branch...

...The separation of powers was never raised against Wilson's energetic but unavailing effort to include the House of Representatives...

...To use contemporary terminology, the three branches of government were to be responsible to different constituencies...

...The first modern-day High Court answer to that question, the decision in the historic case of United States v. Richard M. Nixon, is being awaited as this article goes to press...

...And opinion among Constitutional scholars is hardly uniform...

...That he had thoroughly considered his course of action is evident from his response to a previous Congressional request...

...rather it will be the extent of the blending and sharing of powers by all three branches of government...

...In Federalist 47, Madison conceded there was merely partial separation of powers in the new Constitution...

...In the fall of 1791, an American military expedition under General Arthur St...

...The issue of Legislative prerogatives, particularly exclusive of impeachment, remains to be resolved...

...But this "parchment barrier" of separation, to borrow Madison's description, was to be distinctly subordinate to another great principle, the independence of each branch in its operation and the method of selecting its members...

...their design was infinitely more complex, more fascinating, and more detrimental to Richard Nixon's present defense...

...But no one disputed Madison's proposition that it was appropriate for all three branches to participate in the legislative process...

...and, with truth, I affirm that it has been, as it will continue to be, while I have the honor to preside in the government, my constant endeavor to harmonize with the other branches thereof, so far as the trust delegated to me by the people of the United States, and my sense of the obligation it imposes, to "preserve, protect, and defend the Constitution," will permit...

...It is of more than passing significance, therefore, that Washington's words and practices clearly belie Nixon's vague, sweeping and exaggerated claims of confidentiality, especially insofar as impeachment is concerned...

...For instance, the Judiciary would be chosen by both the President (elected independently of Congress) and the Senate (originally selected by state legislatures), judges would have tenure "during good behavior" (not at Executive pleasure), and their salaries could not be reduced (by a vengeful Congress...

...To prevent the concentration of all powers in any one of the three branches, the Constitution established "boundary" limitations (often vague ones) for them...

...During the Constitutional Convention, the most intense debates over the separation issue concerned the veto and the treaty-making function...

...In the furious fight over ratification that erupted after the convention, opponents criticized the Constitution for providing insufficient separation of powers...

...To buttress his position, he cited both "the plain letter of the Constitution itself" and his personal knowledge, "having been a member of the general convention, and knowing the principles on which the Constitution was formed...

...Yet Nixon's interpretation of that principle As well as its presumed underpinning, the "separation of powers"-would have startled Washington, Madison, Hamilton, and the rest of the Founding Fathers...

...Polk, of course, was talking about the special case of impeachment proceedings, an area where most legal authorities agTee with Berger...

...Nor did President Washington invoke any overall theory of either separation of powers or Executive privilege in refusing to give the House documents about the Jay Treaty...

...It would not be unreasonable for the courts to lay down ground rules for Congressional inspection of Presidential documents based on a weighing of the purpose of enforcing Executive privilege (with a genuine claim of national security counting more than confidentiality per se) against the specified Legislative "need" for the information...

...The last was chosen on the wholly practical grounds of expediency and protection of the national interest...

...When that day comes, the issue will not be, as Nixon has maintained, the separation of powers...

...Since the first President and many members of the early Congresses were veterans of the Constitutional Convention, their statements and actions understandably continue to carry much weight in matters of interpretation...

...Others, like Raoul Berger of Harvard, insist this "is in fact a figment of the Executive imagination...

...Clair (then governor of the Northwest Territory) had been ambushed by an Indian tribe with disastrous results...

...Indeed, a close analysis of the Constitution may lead one to conclude that the separation of powers is a chimera if the term be defined as the ability of any one branch to operate completely free of interference from the other two...

...Consequently, there would be no temptation for one branch to corrupt another, and Madison hoped that the panoply of safeguards would constitute "some practical security for each, against the invasion of the other...

...He emphasized that he had complied with the constitutional requirement for full disclosure: "All of the papers affecting the negotiation . . . were laid before the Senate, when the Treaty itself was communicated for their consideration and advice...

...Many have argued that over the years Congress has tacitly accepted the notion of Presidential confidentiality...

...Their colleagues persistently voted the proposal down, the majority refusing to countenance a judicial "double negative" over Congress (first through the veto and second as interpreters of a law's constitutionality...

...Our received Constitutional rhetoric obfuscates the fact that there is a fundamental contradiction between the separation of powers and the "checks and balances" doctrines, since each implies limits upon the other...

...In rejecting the tendency of "strong" Presidents to assert the privilege, Berger further cites James Polk's statement that "malversation in office" requires "all the archives and papers of the Executive department, public or private," to be "subject to the inspection and control of a [Congressional] committee...

...Accordingly, the current White House occupant has proclaimed that all American Presidents since Washington have adhered to something called the principle of "confidentiality" in withholding information from the other branches of government...

...Yet has a legally valid tradition of absolute Executive privilege slowly come into being, despite the limited role assigned to this concept by the Founding Fathers...

...Yet leaving impeachment aside, it appears that the Judiciary will ultimately have to set the limits of Executive privilege against Congressional inquiry...

...Four alternative solutions to the vexatious problem of who should be empowered to conclude treaties were discussed at length: the President alone, the Senate alone, the President and the entire Congress, or the President and the Senate...

...Washington hinged his decision on the specific ground that the treaty power was expressly and explicitly confined by the Constitution to the President and the Senate...

...James Madison Isidore Silver, a past contributor, is Professor of Constitutional Law at the John Jay College of Criminal Justice and editor of The Crime Control Establishment...

...The critical lesson of Washington's carefully worded message is its recognition that it is not the doctrine of separation of powers, but rather the subject matter of an inquiry And what the Constitution states about its jurisdiction which determines whether the Executive has the right to withhold information from the Legislative...

...But] a just regard to the Constitution and to the duty of my office under all the circumstances of this case, forbid a compliance with your request.-George Washington March 30,1796 At first glance, President Washington's refusal to furnish documents to the House of Representatives during the controversy over the Jay Treaty 178 years ago seems to provide a strong, if not unassailable, precedent for Richard Nixon's truculence toward the House Judiciary Committee today...

...When the Chief Executive exercises the veto power, for example, he is sharing in the legislative power otherwise reserved to Congress...

...Whether these essays be viewed as ex post facto rationalizations for the Convention's ad hoc decisions or as insightful analyses of the nature of republican government, they have become a touchstone for interpreting the framers' intentions...

...Separation was relevant only to one telling argument, that judges who had "approved" the "wisdom" of a law might be "inhibited" when asked later to rule on its constitutionality...

...But the case applies only to the relationship between the Executive and the Judiciary...

...In Federalist 75 Alexander Hamilton reduced the separation concept itself to a nullity, at least with regard to treaty-making, by commenting that the President and Senate were a "distinct department" of government in jointly exercising a power "belonging neither to the Legislative nor the Executive...

...Moreover, the actual roles of the different branches inevitably converge at crucial points...