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University of Georgia School of Law




One of the most significant structural elements of the United States Constitution divides the political power of the government between two discrete political institutions, the Congress and the President, in order to prevent concentration of the full power of the national government in one place. This governmental structure has posed a continuing dilemma of how to allow for the shared decisionmaking necessary to effective government while maintaining the independence of each political branch. As the United States Congress reaches its two hundredth anniversary, questions concerning the relationship between Congress and the President, for a substantial time thought by legal scholars to be either resolved or uninteresting, have reentered the public discourse between the two political branches and have pressed for judicial answers.

These questions generally appear under the rubric "separation of powers." The term is misleading, however, for it suggests that the Constitution separates the powers each institution exercises rather than the institutions themselves. More aptly, the Constitution mandates a system of shared political powers in which dual institutional consent ordinarily establishes governmental policy. In this way, the Constitution reconciles representative democracy with a remedy for the executive weaknesses that the Continental Congress and the Articles of Confederation had manifested in practice.

After the two political branches reach tentative agreement as to how they will allocate decisionmaking power between themselves, an aggrieved branch or a third party may invite the courts to review the decision. Our constitutional tradition accords the Supreme Court the last word short of formal amendment in deciding constitutional issues presented in a "case" or "controversy."1 The Court may treat the division of political functions between the other two branches as simply one more constitutional issue within its usual competence. On occasion, however, the Court has declined to intervene, leaving the political branches themselves to arrive at acceptable arrangements.2 The establishment of the institutional arrangements between Congress and the President thus involves the consent of all three branches.

Unfortunately, the Court's recent decisions in this area proceed from an erroneous conception of the constitutional structure, one that divides powers into three neat categories. The opinions do indicate that the powers are not hermetically sealed from one another.' But after this nod towards reality, the Court generally goes on to determine whether a particular arrangement falls on one or another side of a separation of powers boundary line. This conception runs three risks: that the Court will prevent the political branches from creating new responses to changing events and problems of government; that the Court will enhance rather than diminish the very consolidation of power within a single branch that the Constitution sought to avoid; and that the Court itself will decide the political matters properly left to the elected branches.

This article offers a competing conception, one that emphasizes decisionmaking shared by Congress and the President. 4 Under this view, the Constitution creates a balance between two vital political institutions that reach decisions in different ways. The resulting combination produces decisions both efficient and responsive. Court intervention is appropriate, then, only to prevent one political branch from upsetting the balance and excluding the other from the decisionmaking process.

In considering the relationship between Congress and the President, I first examine the constitutional text that shapes the process. The text offers little to support the Court's classification of powers approach. The article then surveys three substantive areas in which one branch presumptively dominates the process: the allocation of funds and revenue raising, in which Congress is said to make the decisions, and the conduct of foreign policy, in which the President assertedly prevails. Contrary to the model of allocation of functions to one or another branch, the two branches share decisionmaking even in these polar cases. The process is often one of presidential leadership accompanied by significant congressional participation. The article contrasts the types of decisionmaking each institution typically employs and relates those methods to observed functional distinctions. It then turns to recent Supreme Court opinions and their apparently divergent model of separation of powers.5

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