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Courts could decide upcoming separation of powers claims

On Oct. 25, a former deputy national security advisor to President Donald Trump filed a lawsuit asking a federal judge to decide which he was bound by: a congressional subpoena or a White House order invoking executive privilege and confidentiality of presidential conversations.

The suit represents the latest in a series of historical conflicts arising from the U.S. Constitution’s separation-of-powers clauses.

The Supreme Court may decide one of the most consequential separation of powers cases in American history.

The Supreme Court may decide one of the most consequential separation of powers cases in American history.

Photo by Kelly Nigro/Moment Open/Getty Images

As an ABA Legal Fact Check posted Oct. 29 explains, typically the judiciary is called upon to referee these competing interests. Both the U.S. Constitution and case law have guided the courts to decide separation-of-powers cases involving all three branches of government.

“If this case is ultimately decided by the Supreme Court, it will be one of the most consequential separation of powers cases in American constitutional history — however it is decided,” J. Michael Luttig, a former federal appeals court judge, told The Washington Post.

For more than two centuries, the U.S. Constitution’s structure of three co-equal branches of government has produced its fair share of tension, according to a 2016 Congressional Research Service report. The most enduring U.S. Supreme Court decision dealing with the balance between executive and legislative authority came after President Harry Truman signed Executive Order 10340, which placed all U.S. steel mills under federal control during the Korean War. In 1952, the Supreme Court ruled 6-3 in Youngstown Sheet & Tube Co. v. Sawyer that Truman had overstepped his authority because he attempted to make law rather than clarify an existing piece of legislation. A concurring opinion by Justice Robert Jackson put forth a three-part test that is still relied upon by courts today in navigating these conflicts.

Two decades later, in U.S. v. Nixon, a unanimous Supreme Court ruled that “neither the doctrine of separation of powers nor the need for confidentiality of high-level communications,” gave then-President Richard Nixon an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.” Nixon subsequently resigned under threat of impeachment.

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