Separation of Powers Under the Thesis

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S. Constitution and to resolve issues of law and any conflicts between the laws of individual states and the Constitution (Dershowitz, 2002). Several modern cases have required the Judicial

Branch to apply the checks and balances principle to unconstitutional actions by the other branches of government. In 1983, the Supreme Court prohibited the Legislative Branch from vetoing decisions issued by the Executive Branch (as represented by the Attorney

General) arising in the Reagan administration and later, in 1998, by applying the separation of powers doctrine to the diametrically opposite side of the same general issue, in prohibiting the delegation of congressional legislative authority to the president during the Clinton administration (Friedman, 2005).

Morrison v. Olson, 487 U.S. 654 (1988):

The case arose during the Reagan administration when President Reagan

Instructed Environmental Protection Agency (EPA) and components of the U.S.

Department of Justice to furnish documents formally subpoenaed by the House of Representatives in connection with its investigation of issues relating to enforcement of law, specifically, the Superfund law (Friedman, 2005). After the committees established by the House of Representatives to investigate the Superfund issues determined that Assistant Attorney General for the Office of Legal Counsel, Ted Olson, may have perjured himself in front of the House Judiciary Committee, the Committee Chairman requested the appointment of an independent counsel, Alexia Morrison, to investigate the prospect of charging Olson for his misleading statements, pursuant to the Independent

Counsel Act (Friedman, 2005).
Olson contended that the establishment of the independent counsel, in effect, compromised some of the authority explicitly reserved by the Constitution to the Chief

Executive and actually created an altogether different (fourth) branch of government.

Olson also suggested that this new hybridized branch of government violated the fundamental principle of checks and balances in that none of the three established branches of government maintained any authority over it.

The Supreme Court issued a nearly unanimous decision (with one dissenting opinion authored by Justice Scalia), establishing that the independent counsel was actually still an officer of the Executive Branch under the control of the President, except that such control did not also include the authority to fire the independent counsel (Dershowitz, 2002).


Dershowitz, a. (2002). Shouting Fire: Civil Liberties in a Turbulent Age. New York: Little Brown.

Friedman, L. (2005). A History of American Law. New York: Touchstone. Hall, K. (Ed.) (1992). The Oxford Companion to the Supreme….....

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