But the constitutional genius of America is checks and balances. And by rereading the Federalist Papers and looking back at earlier Supreme Court decisions, the courts can restore a rule of reason on how legislative and executive power are meant to operate together. This is crucial now because the cases involving the Federal Trade Commission, National Labor Relations Board and Privacy and Civil Liberties Oversight Board are coming up fast and might reach the Supreme Court quickly through the court’s emergency “shadow docket.”
Though the Constitution vests the president with all executive authority, it vests Congress with all legislative authority, including, significantly, the power to set fundamental policies and procedures for the executive branch.
The Framers exalted the separation of powers, but they also understood that the branches’ authorities were not designed to be “wholly unconnected.” In fact, in Federalist 48, James Madison wrote that the branches “should not be so far separated as to have no constitutional control over each other.” In Federalist 47, he noted that a “partial mixture” of governmental powers is necessary for the preservation of liberty. This is why Congress is not usurping or encroaching on presidential authority when it exercises its sole power to establish (or sunset) executive departments and offices, mandate binding spending levels, impose independent oversight and, within certain limits, set up agencies whose boards are composed of bipartisan commissioners that do not serve at the pleasure of the president.
