THE POWER OF SEPARATION: AMERICAN CONSTITUTIONALISM AND THE MYTH OF THE LEGISLATIVE VETO by Jessica Korn. Princeton: Princeton University Press, 1996. 178 pp. Cloth $29.95. ISBN 0-691-02135-X.

Reviewed by Ronald Kahn, Department of Politics, Oberlin College
 

Professor Korn offers an original, thoughtful, important contribution on the significance of INS v. CHADHA (1983), the case in which the Supreme Court ruled that all legislative vetoes are unconstitutional because they violate basic separation of powers principles. Professor Korn boldly attempts to shatter many of the conventional ideas in the academy about the use of legislative vetoes and the role of the Supreme Court in stopping them. She argues that Congress did not need the "extra-constitutional" mechanism of the legislative veto to combat the rise of "extra-constitutional" presidential powers. She opposes the view that the legislative veto is an "an indispensable counterpoint" to the creation of powerful 20^th century administrative agencies given the inherent weaknesses to American government caused by the formal separation of powers among the branches of government. She demonstrates why the Wilsonian framework for interpreting the significance of the legislative veto to American politics is not a useful guide to understanding the veto’s place in history. Most significantly for legal scholars, she argues against the "unexamined belief built into Justice White’s Wilsonian dissent (in CHADHA), that American government cannot adapt to changing political circumstances unless it undergoes amendments to the procedures that separate executive and legislative power" (p. 8). The major finding of the book is that there is a "striking disjunction between the minimal role actually played by the legislative veto (in congressional oversight of the executive) and the great significance attributed to it by students of American politics" (pp.7-8).

In making this argument, Korn emphasizes the ways in which Congress and the President have energized oversight in meeting the growth of presidential and congressional power in this age of dual party control of government. Professor Korn documents numerous procedural and institutional changes that accompanied the growth of administrative power in the executive branch. These include Congress’ more strict control over policy implementation through the drafting of detailed laws, and the decentralization of Congress which required executive branch officials to communicate with a far wider number of members, thereby increasing Congressional participation in the exercise of control over implementation. She emphasizes that compared to legislatures in parliamentary systems the "United States Congress is, after all, the most powerful legislature in the world ... because separation of powers makes members of Congress electorally independent of the executive" (p. 11). Finally, she argues that federal courts have been active in determining whether administrative and regulatory powers are too unaccountable and unlimited in their powers, thus limiting executive agency power and increasing the power of Congress to make laws.

The author uses well-researched case studies, on the Federal Trade Commission, the implementation of education statutes, and presidential authority to extend most-favored nation status, to support her argument. In the case studies, Korn identifies the origins and development of the legislative veto mechanism, using her anti- Wilsonian framework. She explores the development of public policy under each of the relevant statutes with particular attention to the shifting balance of policymaking power among political branches. She defines the actual, quite limited, role played by legislative vetoes in Presidential-congressional policy making, in light of what she views as the wide increase in procedural and political mechanisms employed by the members of Congress to control government agencies, and by the President to gain support for his policy initiatives.

Korn finds the separation of powers system is not simply consistent with, but rather well suited to the growing aggregation of presidential power, including the President's power to make foreign policy. The President’s increasing consultation with Congress on foreign and domestic matters allows the executive branch to have the direction and responsibility necessary for making final decisions. Korn views the establishment of the legislative veto and other efforts at placing constitutional restraints on executive power as "symbolic actions." They make Congress appear to be deeply frustrated over its limited powers of oversight while, in fact, Congress has quite adequate means of power over the executive branch, which had been created, by political, non- legal, non- court ordered means. Moreover, the Supreme Court’s invalidation of the legislative veto enhanced the capacity of Congress to fulfill representative functions; it also increased the capacity of the executive branch to carry out its functions by making it easier for members of Congress to pass laws containing substantive policy prescriptions. At the same time it made it easier for Congress to provide the executive branch with discretionary power to address the unpredictable demands and details of policy implementation. With regard to Congressional oversight and power over foreign policy, Korn makes the following controversial statement: "But understanding such rhetorical devices for what they are reveals that members have extensive powers--which they often prefer not to use--to control the foreign policymaking activities of the presidency" (p. 11).

Korn argues that the Wilsonian legacy continues to constitute a core way of thinking in the political science discipline in the United States, a legacy which blinds us both to the actual workings of separation of powers and to our understanding of the principles upon which separation of powers rest. Korn is very positive about the ability of day to day working relationships among the Congress, the President, and the wider executive branch to deal with any shortcomings in the structures of government created by the separation of powers. Korn argues that Wilson was wrong in emphasizing that the separation of powers was designed solely to restrain the power and authority of government by dividing it into separate institutions empowered to check each other. Korn argues, quite persuasively, that the separation of powers was also intended to produce a division of labor so that members of each branch would develop specialized skills in legislating, executing, and judging. Drawing on THE FEDERALIST PAPERS for her understanding of separation of powers, Korn writes, "Separation of powers ... allows for flexibility in the balance of power among the three branches at the same time that it preserves the independent capacity of each of them to fulfill its particular tasks. From this point of view, the legislative veto does not immediately appear as an instrument of congressional oversight. Already endowed with extensive powers with which to check and balance each other, members of the different branches are likely to produce a slew of counterbalancing mechanisms to any new powers that actually threaten to affect policy outcomes"(p. 12). Korn seems to have faith in the ability of Congress and the Presidency to create politically, through face to face and institutional accommodations, the fulfillment of basic separation of powers principles which support strong separate institutions as well as checking functions.

This book is less about constitutional questions and principles than it is about the ability of political institutions to adjust to changes in the power of the major branches of government through the development of informal procedures and interactions. It is evident that Korn knows the major constitutional issues involved in separation of powers. However, rather than detail or emphasize them, she chooses to center the book on the Wilsonian attack on separation of powers as undermining the efficiency of modern government. In doing so she validly argues that the separation of powers is not simply or mostly about efficiency.

Korn is on target about the formulaic quality of the Wilsonian legacy and how it has been used by some scholars as their primary standard of analysis for evaluating American political institutions. However, Korn overstates the degree to which all of political science, and especially the study of American politics, is driven by the Wilsonian legacy. For Korn, too many of the complex problems of American politics, including the important question of the democratic control of foreign policy, are viewed simply as problems of Wilsonian good government/ efficiency concerns which Korn feels have been met quite well by the democratic and innovative exercise of day to day politics.

The lack of a clear normative standard of evaluation, whether that be classic separation of powers doctrine or a more empirically informed viewpoint concerning the efficiency of American government or its fairness may upset some readers, of course depending on their viewpoint and approach to courts, law, and American political institutions. For example, there is no deep discussion of different and contested interpretations of separation of powers. Separation of powers as a problem of the Wilsonian critique is center stage in this book. For Korn, the real world of separation of powers fostered stable, well reasoned government at the same time that it protected liberty. Separation of powers did not result in arbitrary use of government power or inefficient government. Unfortunately, Korn's standard of evaluation appears to be an implied faith in the political process and everyday workings of political system.

This book is must reading for scholars of American political institutions, especially those who wish to understand how Congress and the President adjust to the changing nature of the problems that face our nation. This book also raises key questions as to the importance of the Wilsonian problematic about American government and separation of powers. For scholars of the Supreme Court and judicial process, this book offers very carefully researched evidence in support of the position that the Supreme Court, and courts in general, are less important to political and social change than are politics and political institutions.

It will be of less use to the constitutional theorist or scholar of separation of powers as a constitutional principle. For Korn the constitutional debate over CHADHA and the legislative veto was a rhetorical battle on congressional and presidential power and little else. I am not saying that the author should have written more deeply about constitutional questions involving the interpretation of the principle of separation of powers or about the age-old debate about court versus political institution power, because the book stands very well on its own for what it does. I say this because a filigreed analysis of separation of powers, administrative law, or issues of court versus political system power is not the purpose of this book. This book is an excellent study of the relationship of a landmark Supreme Court decision to the workings of American political institutions which scholars of the Supreme Court and American politics can fit into their ways of thinking about law and political change. Finally, the book is very well written. This is a great book to assign students in a course on American politics or political institutions or in a course on the relationship among law, courts, and politics--as long as alternative examples are also presented. For example, one might also use an excellent book on the story of the CHADHA through the decision by the Supreme Court, see Barbara Hinkson Craig’s CHADHA: STORY OF AN EPIC CONSTITUTIONAL STRUGGLE (Oxford Press, 1988).