If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.
Federalist Paper No. 51
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.
Federalist Paper No. 78
Some things never change – and that is not at all bad. Lately, it seems as if everything is up in the air and nothing is settled, but that is not at all true. While the whirlwinds of social change, allegations of climate change, and theories of justice change are spun about, constitutional grounding keeps us foundationally sound. While some will never agree, there was a method to the Framers’ intent, and that is the bedrock of our democracy.
Case in point: the separation of powers doctrine. The subject of several Federalist Papers (Numbers 47, 48, and 51), this concept is front and center today even if the arguers don’t realize that that is the basis for their complaints or counter-arguments. Which branch of government has the final word and in which way, and to what extent each branch encroaches on the others’ zones of authority are just as relevant today as they were at the start of our Nation. Just as important to the doctrine of separation of powers, the concept of judicial review also merits review. An examination of several cases—both past and very recent—establishes how valuable the concept of separation of powers is and how we should hold tight to it even in these turbulent times.
I. Separation of Powers and Judicial Review – the Early Years
Among all the advantages, which have arisen to mankind, from the study of letters, and the universal diffusion of knowledge, there is none of more importance, than the tendency they have had to produce discussions upon the respective rights of the sovereign and the subject; and, upon the powers which the different branches of government may exercise. For, by this means, tyranny has been sapped, the departments kept within their own spheres, the citizens protected, and general liberty promoted. But this beneficial result attains to higher perfection, when those, who hold the purse and the sword, differing as to the powers which each may exercise, the tribunals, who hold neither, are called upon to declare the law impartially between them.
Commonwealth v. Caton, 8 Va. (4 Call) 5, 7 (1782).
In 1782, the question of judicial review arose in a case with life and death implications requiring the court to consider the authorities of the three branches of government, leading one judge, George Wythe, to declare “Fiat Justitia, ruat coelom” (Let Justice be done though the Heavens fall). In Caton, the fate of three men charged with treason and subject to execution rested in the hands of the courts. The three men had received a pardon that was only assented to by the Virginia House but not the Senate—as required by the state constitution—and they sought to have a state court give their pardon legal effect and thus avoid execution. The Caton court looked to the constitution, considered the precise language to determine its meaning, deliberated in a manner that foreshadowed Justice Antonin Scalia, upheld the separation of powers, and found the pardon to be invalid.
This decision, at the time, flew in the face of public sentiment, and the Caton Court should be commended not only for taking seriously this important concept newly enacted in the Nation, but for doing so in a case where lives were at stake.
Much can be said about why our Founders determined that there should be three equal but separate branches of government. The Framers recognized that paying mere lip-service to equality among the branches led to the loss of liberty and was but the first step towards tyranny. The key to rational and practical stability was to ensure that the judiciary was—unlike Hamilton feared—a true player at the table. “The Framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers, which had been prevalent in the colonies long before the Revolution.”
Perhaps the most famous case to address the doctrine of separation of powers is one mentioned in all law schools and readily found upon the lips of most lawyers: Marbury v. Madison. A little more than two decades after Caton set out the process by which courts should examine laws and review the authority of each governmental branch, the United States Supreme Court (implicitly ruling upon James Madison’s writings in the Federalist Papers) ruled on a case involving James Madison, currently the Secretary of State. In an interesting twist, Secretary Madison was compelled to acknowledge the commissions of three men appointed justices of the peace because the Court held those duly enacted commissions provided those men with a legal title to their offices.
Setting out the separation of powers doctrine, Marbury establishes the province and duty of the judicial branch: it is “to say what the law is.” In particular, “[t]he powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.” Deciding cases in conformity with the Constitution is “of the very essence of judicial duty.” To do otherwise “would be giving to the legislature a practical and real omnipotence,” and would “subvert the very foundation of all written constitutions.”
The separation of powers doctrine is still applicable and important today. Sometimes, in modern cases, a court majority reaches a decision consistent with this doctrine, but then—for whatever reason—declines to take the next step and more vocally embrace the separation of powers. In some cases, one or two judges or justices write compelling concurrences (or dissents) to elaborate upon the foundational bedrock and judicial authority in our tri-partite system of government.
II. Wisconsin’s Foray Into the Field
In a case in which this author had first-hand experience, the Wisconsin State Supreme Court addressed a challenge to actions by the state legislature in 2011. This case arose in the midst of the chaos faced by the Republican-majority legislature in Wisconsin when then-Governor Scott Walker signed a Budget Repair Bill that was published and then was the subject of a lawsuit filed by Dane County’s District Attorney with a corresponding Motion for Temporary Injunction. The state circuit court’s decision to “unring the bell” and declare the bill “unpublished” was sharply and swiftly overruled by the state supreme court as an overreach of the separation of powers. Relying upon Goodland v. Zimmerman, in which the fundamental separation of powers doctrine mandated that a court does not have the power to enjoin the publication of a bill duly enacted by the state legislature, the Ozanne court resolved the issue. Taking care to note that it was “not affected by the wisdom or lack thereof evidenced in the Act,” the court affirmed that its “task” was “limited to determining whether the legislature employed a constitutionally violative process in the enactment of the Act.” The court concluded it did not, and held that “the legislature didn’t violate the Wisconsin Constitution by the process it used.”
In 2017, in Gabler v. Crime Victims Rights Bd., the separation of powers doctrine was again front and center. An executive agency—the Crime Victims Rights Board—with authority delegated from the legislature, reviewed a court’s exercise of discretion and, finding that discretion to be contrary to the agency’s preferences, sanctioned the judge. The Wisconsin State Supreme Court disagreed and held that:
In creating an executive branch entity with authority to pass judgment and impose discipline on a judge’s exercise of core judicial powers, the Wisconsin legislature violates the Wisconsin Constitution’s structural separation of powers and invades a domain recognized for over two hundred years as the exclusive province of the judiciary. Neither the executive branch nor the legislature may reprimand or otherwise discipline a Wisconsin judge. The Wisconsin Constitution reserves such disciplinary powers for the supreme court alone. Nor may the legislature empower the executive branch to threaten any judicial officer with repercussions for exercising constitutional power vested exclusively in the judiciary.
The Gabler court recognized the rich history that led to the separation of powers in the first place, noting that “[e]ncroachment on judicial power degrades the judicial independence that serves as a bulwark protecting the people against tyranny.” The court, therefore, concluded that “[b]y statutorily authorizing executive action against the judiciary, the legislature unconstitutionally conferred power on an executive board to impair, improperly influence, and regulate the judiciary's exercise of its constitutional duties.”
More recently, the Wisconsin State Supreme Court examined rule-making in the context of legislative prerogatives and delegation when it decided Koschkee v. Taylor. In that case, the majority held that just because the legislature delegates part of its constitutional duties to the Superintendent of Public Instruction does not transform that delegated rule-making power into a constitutional supervisory function of its own weight. Therefore, laws granting the Governor equal or greater legislative authority were not unconstitutional.
In her concurrence, Justice Rebecca G. Bradley focused more in-depth upon the separation of powers doctrine and encouraged future decisions on administrative agency deference to home in on whether the court’s “delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers.”
Recognizing that Wisconsin follows the federal concept of separation of powers leads next to a consideration of recent cases throughout the Nation.
III. A Review of Recent National Cases.
Moving on to recent nationwide decisions, courts from the United States Supreme Court to federal appellate courts to state courts have turned again and again to the foundational bedrock of our constitution embodied in the separation of powers doctrine to resolve a variety of current disputes. A chronological review of some of the more relevant decisions shows that the courts continue to determine what the law is, not what it ought to be.
To start, in NLRB v. Canning, a case resolving the issue of the President’s recess appointment powers, Justice Scalia, in a scathing concurrence, chided the majority for side-stepping the rarely afforded opportunity to interpret the “Constitution’s structural provinces.” Justice Scalia was chagrined that the Court failed to “affirm the primacy of the Constitution’s enduring principles over the politics of the moment.” Instead, that Court limited its decision.
While Canning addressed presidential powers in a relatively esoteric area, other courts have been faced with resolving disputes that address recent trends and political issues ranging from climate change to funding the border wall to presidential privilege. For instance, in Juliana v. United States, a group of young people and an environmental activist group, among others, sued President Barack Obama and several executive agencies for knowingly destabilizing the climate through fossil fuel exploitation. The district court, for purposes of resolving a motion to dismiss, accepted the premises “that climate change exists, is caused by humans, and poses a serious threat to our planet.” Surprisingly, it went on to hold that the challenge to climate change policy was not a political question that would indisputably have been barred from judicial review under the separation of powers doctrine going all the way back to Marbury v. Madison; instead, it moved forward with the case. Even with such a bold declaration, the Juliana court was compelled to acknowledge that if plaintiffs prevailed, it might be difficult to fashion a remedy consistent with the separation of powers.
Several recent 2019 cases address border wall funding in the context of the separation of powers. In U.S. House of Representatives v. Mnuchin, a “case about whether one chamber of Congress has the ‘constitutional means’ to conscript the Judiciary in a political turf war with the President over the implementation of legislation,” the Court held that the single body of Congress “lacks standing to challenge the Administration’s action.” The Mnuchin Court further noted that the doctrine of separation of powers mandates that judicial intervention in political disputes when one branch of government sues another should be undertaken only as a ‘last resort.’” The Court continued, noting that “[a] seat in Congress comes with many prerogatives, but legal standing to superintend the execution of laws is not among them.” Accordingly, the Mnuchin Court denied plaintiffs’ motion for a preliminary injunction for lack of subject matter jurisdiction.
Several decisions address separation of powers in the context of the confidentiality of presidential records, secrecy, and the Freedom of Information Act (FOIA). In Judicial Watch, Inc. v. U.S. Secret Serv., FOIA requesters sought records from the Secret Service that were barred from disclosure directly from the President. Noting that the round-about attempt to obtain the President’s calendars implicates separation of powers concerns, the court aptly concluded that those concerns dictated a denial of the disclosure of the records.
In 2019, the U.S. District Court for the District of Columbia upheld the Judicial Watch ruling and declined to require the disclosure of Microsoft Outlook calendar entries by the Director of the Office of Management and Budget under a FOIA request.
Finally, in Kisor v. Wilkie, a case concerning the appropriate deference to be afforded to administrative agency decisions, Justice Neil Gorsuch took the majority of the Court to task for tepidly approaching the question of deference by failing to emphasize its incompatibility with the judicial branch’s duty to interpret the laws. “Never,” Justice Gorsuch wrote, should this judicial power—as Marbury v. Madison states (to say what the law is) “be shared with the Executive Branch.” Expounding on the separation of powers, Justice Gorsuch aptly summarized the origins of full-bodied and impartial judicial review and the United State Supreme Court’s role by stating:
Our Nation’s founders were painfully aware of the dangers of executive and legislative intrusion on judicial decision-making. . . . These experiences taught the founders that ‘there is no liberty if the power of judgment be not separated from the legislative and executive powers’. . . . The rule of law begins to bleed into the rule of men. . . .
Experiencing all this in their own time, the founders sought to ensure that those who came after them would not. Believing that “[n]o maxim was better established” than “that the power of making ought to be kept distinct from that of expounding, the laws,” they designed a judiciary that would be able to interpret the laws “free from potential domination by other branches of government.” To that end, they resisted proposals that would have subjected judicial decisions to review by political actors. And they rejected the British tradition of using the upper house of the legislature as a court of last resort, out of fear that a body with “even a partial agency in passing bad laws” would operate under the “same spirit” in “interpreting them.” Instead, they gave federal judges life tenure, subject only to removal by impeachment; and they guaranteed that the other branches could not reduce judges’ compensation so long as they remained in office.
The founders afforded these extraordinary powers and protections not for the comfort of judges, but so that an independent judiciary could better guard the people from the arbitrary use of governmental power. And sitting atop the judicial branch, this Court has always carried a special duty to “jealously guar[d]” the Constitution’s promise of judicial independence. So we have long resisted any effort by the other branches to “‘usurp a court’s power to interpret and apply the law to the circumstances before it.’” The judicial power to interpret the law, this Court has held, “can no more be shared with another branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto.”
This decision, like others that strictly adhere to the separation of powers doctrine, evidences the impartiality that all judges swear an oath to uphold. Through the centuries, our democracy has remained vital and prosperous not in spite of our tri-partite system of government, but because of our resolve to remain faithful to the doctrine. Judicial review, when faithfully executed, strongly assists in achieving this goal. It is to attain that “higher perfection” admired in Caton, “when those, who hold the purse and the sword, differing as to the powers which each may exercise, the tribunals, who hold neither, are called upon to declare the law impartially between them.” As Justice Gorsuch said in Kisor, judicial decisions are not to be reviewed by political actors. And, finally, as expressed in Ozanne, it is not in any fashion an indication that the Court approves of or endorses the law. To the contrary, unpopular decisions are the strongest evidence that the judiciary is saying “what the law is” while still “staying in its lane.”
Because we are not angels—and because a democratic society is our birthright—it is imperative that we continue to address these concerns and that we (and especially the judiciary) remain ever vigilant to ensure that each governmental branch respects the others and doesn’t invade the neighboring zones of authority. The judicial power to “say what the law is” and to review the other equally powerful branches of government cannot be diminished. Nor should it ever be embellished to exceed its set boundaries. Times may change. Issues of popular interest have undeniably changed. But the steadfast constant remains resolute: no one branch may act on its own without the check and balance of the others. There is not a super-legislature or a super-executive. Nor is there a super-judiciary. Like complicated, twisty-edged pieces of a three-piece puzzle, the three branches join together to form a more perfect Union. And that is precisely how it should be.
Caton, 8 Va. at 13. Lest there be a concern that the three were executed, see William M. Treanor, The Case of the Prisoners and the Origin of Judicial Review, 143 U. Pa. L. Rev.491 (1994). Treanor gives an in-depth discussion of the topic of judicial review as well as details of the fate of the three men still facing execution. In short, they again petitioned for a pardon and this time both houses concurred. Id. at 540. Two were forced to leave Virginia forever and the other had to serve in the revolutionary army. Id. Strict sentences, but far better than the alternative.
The author, as an Assistant Attorney General, represented the Petitioner-Defendants at the trial court level and wrote the appellate brief to the state supreme court.
 See State ex rel. Ozanne v. Fitzgerald, 2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436. Also interesting in this decision is the inclusion, in Justice David Prosser’s concurrence, of a newspaper front page showing some of the turmoil in the State at that time.
The chaos at that time, that included massive protests for weeks in and around the State Capitol, is the subject of other books, articles and news reports. It could be—and has been—the subject of its own full-length article.
Id. This clear recognition of the judiciary’s required impartiality with respect to the “wisdom” of laws could also be a basis upon which the Court this time was able to coalesce into a majority decision in this case.
 The Gabler decision contains an excellent scholarly dissertation on the rationales behind the establishment of our tri-partite system of government and the emphasis upon an independent judiciary. See, e.g., id. at ¶¶ 3-11.
Id., at ¶ 54 (quoting Whitman v. Amer. Trucking Assn’s, Inc., 531 U.S. 457, 487 (2001) (Thomas, J. concurring)).
If a case presents a political question, federal courts will not adjudicate the question as they lack subject matter jurisdiction. Powell v. McCormack, 395 U.S. 486, 518 (1969). This lack of authority to resolve political questions is a function of the separation of powers doctrine. Baker v. Carr, 369 U.S. 186, 217 (1962).
Even though the United States Supreme Court has addressed the judiciary’s role pursuant to the separation of powers doctrine and emphasized the proper respect it is due, some federal courts appear to go their own way. See Sierra Club v. Trump, 929 F. 3d 670,707-08 (9th Cir. 2019) (Smith, J., dissenting) (a case also involving border wall funding).
379 F. Supp. 3d 8 (D.D.C. June 3, 2019).
Id. at 23.