the modes of information-gathering, and the methods of constitutional accountability to the public which are appropriate to each.

The fact that one function shades inescapably by degrees into another is not fatal to a conception of separated powers properly understood. (23) The Founders did not emulate the framers of the Massachusetts Constitution (24) and attempt to exclude the exercise of the power of one organ by another. In light of this flexibility, and the deliberate creation of this tripartite structure to prevent "tyranny," (25) neither the purpose nor the workability of the doctrine need be in question. To the charge that the separation of powers is inefficient and that it promotes the politics of institutionalized acrimony, it should be sufficient answer that the purpose of the framers to prevent tyranny retains its normative force, and that the government was not designed for the personal working comfort of federal officeholders, but to enhance the liberty of the citizen.

It is thus fruitless to seek a full understanding of the separation of powers doctrine by reference to institutions which correspond to a set of hermetically sealed functional categories of government. It seems abundantly clear, as recent interpretative studies have emphasized, that the Constitution created not a government of separated powers, but rather a government of separated institutions sharing powers. (26) It is equally fruitless to seek enlightenment by reference to the text of the Constitution. With respect to the few textual provisions mostly in Article II, enumerating presidential powers, the words of a distinguished commentator are particularly apt: "... [W]hat is astonishing is their total inadequacy to support the office as we know it today.” (27)

The issue is further clouded, even for the judicial literalist, by the ancient dispute as to whether the words "executive power" in Article II constitute an independent, if vague, grant of authority, or whether they are mere referent to the few specifically enumerated powers of the President.

If constitutional questions of the allocation of powers cannot be decided exclusively by an analysis of separate governmental functions, and if the text of the Constitution provides no definitive resolution, how then should such jurisdictional decisions be made? One much-quoted attempt was articulated by Justice Jackson in the Steel Seizure Case. (28) Justice Jackson posited a theory of fluctuating power over national policy making as between the President and Congress. According to theory each branch possesses a zone of constitutionally exclusive powers in which it may act even against the express contrary will of the coordinate branch. In between these two exclusive areas, however, there is a "zone of twilight" in which the President and Congress may have current authority, or in which the power distribution is uncertain, in the twilight zone, either branch can act absent the initiative of the other. Accordingly, with respect to the operative presumptions, greater deference would be accorded a Presidential action taken pursuant to an express or implied authorization of Congress. Conversely, Presidential power would be at its lowest ebb if incompatible with the express or implied will of Congress.

This scheme of analysis is, however, subject to several significant qualifications. First, it neglects to account for the set of constitutional limitations on Presidential power, with or without the concurrence of Congress, which restrict the ability to act because the action may thwart the Bill of Rights, rather than the principle of separation of powers. Second, the analysis is principally stated as the formulation of a judicial doctrine which, for reasons already discussed, may not cast the question into the proper forum. Third, the statement notes that exclusive powers of a department can be "implied." The deceptive simplicity of this analysis suddenly vanishes in the face of all of the myriad constitutional disputes over what powers may legitimately be "implied." Finally, the boundaries between the "exclusive" zones and the twilight zone may well be unascertainable, at least with respect to warmaking powers, because "... the extensive authority of each branch to formulate military policy, and the inescapable ambiguity of the constitutional language, make exclusive zones illusory." (29)

The current tests for the allocation of national power all suffer from serious dificiencies unless they focus on the countervailing powers purposes of constitutional architecture. If the separation of powers doctrine is to be implemented effectively, it must be seen not as a technical guide to litigation but as a purpose for institutional action. Before discussing the mechanisms for that acton, however, it is necessary to examine briefly the causes of the current power imbalances between Congress and the Executive.

III. DELEGATION AND USURPATION

Congressional power, like chastity, is rarely taken by force, seldom lost, and almost always given away. Although there have been notable attempts by the Executive to "usurp" constitutional powers allegedly inhering exclusively in the Congress, (30) the vast bulk of the powers wielded by the President are granted not by the Constitution, but by congressional legislation. (31) These delegations of power occurred partly because of certain inherent advantages of an executive office: the ability to fill in details, continuity in office, flexibility of timing, capacity to serve as a channel of communication to foreign nations, ability to coordinate a unified governmental response, and speed in decisionmaking. (32) Yet the executive undoubtedly was also delegated power for the crasser reasons that Congress was unwilling or unable to resist political pressures or assume re sponsibility for the political consequences of controversial actions. (33)

Together with the expansion of executive power and the loss of congressional initiative in policy making has come a parallel trend toward centralization of power even within the executive. The enlargement of the size and policy functions of the White House staff, the creation of the Office of Management and Budget, and the proposals for continuing consolidation of Cabinet and subCabinet agencies demonstrate the Executive's commitment to political initiative even as they portend greater isolation of decision-making power in national policy matters. In view of these developments, the constitutional difficulties posed by a continued pattern of congressional delegation of authority bear closer examination.

Undue delegation may threaten the principle of constitutional separation of powers as vitally as any attempt by one entity to exercise the "exclusive" powers of another. The obvious difference in formulating the issue is that in the first case, the complaint is excessive cooperation between two branches rather than usurpation. Both, however, threaten the conception of shared, controlled power. The sequence of events by which judicial standards evolved to justify the constitutionality of legislative delegation is beyond the scope of this essay to relate. Supreme Court litigation established that delegated power was legitimate if it involved "finding facts" or "filling in details,” or if it utilized an “intelligible principle," contained "standards" or "legislated as far as reasonably practicable." (34) Apart from the aberrations of the Panama (35) and Schechter (36) decisions, however, the doctrinal tests have served in every case to justify the delegation. In view of the breadth of the subsequent Yakus (37) decision, it is probable that broad delegations of authority to the President, including those under the Economic Stabilization Act of 1970, (38) will continue to be sustained. In the future, the decisive "delegation" questions for Supreme Court litigation will turn on the complicated interpretative task of determining through legislative history and administrative practice not the validity of the delegation, but its legitimate extent (39).

This development, however, and newer discussions of the delegation problem (40) are salutory from the point of view of constitutional theory. These techniques eschew unmanageable judicial incantations about "standards.” They focus on the legislature's actual role in policy making. And, most significantly, they emphasize concepts of procedural safeguards, control, and accountability by which both citizen participation and continuing legislative involvement in the administrative process can prevent effective usurpation by one branch of government alone. This objective effectively shared governmental responsibility for basic policy choices-lies at the heart of the separation of powers theory and the proscription against "excessive delegation."

Inescapable difficulties in applying these concepts should not, however, be overlooked. It may be as difficult to determine whether and when power has been shared as it is to determine when Congress, by equivocal acts, or even by silence. has spoken. The legal debate over the war in Indochina raises such difficulties in interpreting the significance of Congressional action and the proper ambit of constitutional authority in foreign policy and military matters. Despite the exhaustive research and erudite argument from all quarters, the views of the commentators, (41) taken together, compel no firm conclusion as to the constitutional propriety of governmental action in conducting the war. Difficulties of standing aside, litigated cases to date (42) have held that congressional action and involvement has been sufficient to sustain the validity of Presidentially authorized military action. If it is determined that such action is in a field of concurrently shared powers, (43) and if by examination of inherently equivocal legislative action and Presidential interpretation, it can be determined that

the constitutionally coordinate branch played some arguably significant role in policy formulation or implementation, it is indeed difficult to see the respects in which there remains a role for the judiciary in resolving the issue. Absent a stronger repudiation by Congress, or an unequivocal determination that congressional power in the field is exclusive, can it indeed not be argued that with respect to separation of powers questions, there is no constitutional issue?

Conceding this point concedes no further power to the executive branch. It serves merely to cast the constitutional issue respecting the separation of powers in proper perspective. On issues involving the distribution of concurrent power, if Congress wishes to contest the constitutional propriety of executive policies, it must do so itself, and do so by affirmative action. At least in terms of the institutional mechanisms available, there are hopeful prospects for meaningful congressional action to reassert a shared legislative role in the exercise of national power.

IV. THE ROLE OF CONGRESS

Many of the same historical forces which have led to executive ascendency will continue to handicap the legislature in its efforts to compete more equally with the powers of the executive branch. Yet the Legislative Reorganization Act of 1970 has already demonstrated the internal reform of procedures enhances the effectiveness of the institution. Advocates of congressional activism have been quick to suggest increased utilization of traditional techniques of congressional oversight. They urge expanded and upgraded staff capacity, improved research and reference capabilities, and a vastly enlarged General Accounting Office to compete with the budgetary analysis resources of the executive branch. Traditional oversight devices such as the investigatory hearing can be coupled effectively with the "legislative veto"-the requirement that an affirmative committee or concurrent resolution approve the continuance of particular executive action. (44) Congress might, in addition to these techniques, proceed more cautiously in its willingness to phrase delegations of authority in sweeping terms. And by limiting the lifespan of authorizing legislation, it could force periodic congressional program review and executive agency accountability.

But underlying all of these techniques, and most important among them is the congressional power of the purse. Congress can meet the serious constituional challenge of Presidential impounding of appropriated funds (45) by the constitutional response of withholding appropriations high on the Executive's list of priorities. (46) Refusal by the Executive to release to a Senate Committee information on foreign military aid plans can result in action, pursuant to legislation, which forces termination of assistance funds or the President's formal claim, with a statement of reasons, of the doctrine of "executive privilege." (47) These, again, are constitutional decisions. They demonstrate the continuing validity of the concept of checks and balances. And they decide questions regarding the allocation of constitutional powers effectively and validly, but by use of political control, not judicial doctrines.

Constitutional constraints of this nature also operate in less dramatic and visible modes. Legislative bodies can and do exercise a panoply of informal controls at the legislative and executive agency staff levels, and through the network of relationships familiar to anyone who has observed the operations of the Federal executive bureaucracy. Yet entrenched and effective as these powers of control are, the legal theorist ironically, has never been quite comfortable with their existence. This disquiet is no doubt due, in part, to the relative invisibility of the process, and to the lawyer's lack of familarity with the political scientists' revelations. But no doubt, also, the process escapes attention because its explication usually lends itself more to the vocabulary of the sociology of group interaction than to the analytical concepts of legal theory.

Nonetheless, the aggregate of all these controls achieves a result which the framers surely would have approved as a commendable result of the institutionalized separation of powers. Several conclusions are thus compelled. First, it is clear that the mechanisms constitute powerful weapons for the enforcement of congressional policy. Second, it is also clear that congressional power, thus exercised can affect major issues, even in the era of “Presidential Government." And finally, as this essay has repeatedly observed, it is also clear that these techniques for sharing in the formulation of policy and exercise of power operate much more quickly and decisively than could any attempted resolution in a judicial forum. It appears evident. then, that any failure by Congress to assert an effective constitutional role is a failure of will and institutional vision rather than one of capacity.

V. THE ROLE OF THE COURTS

No court decision can supply a branch of government with the will to act. And since a system of shared powers depends for its vitality on such assertive ness, judicial institutions necessarily play a subsidiary role in the allocation of the right to exercize national power. It is wholly proper to demand that the President and Congress each be primarily responsible for protecting and asserting constitutional prerogatives. But because third parties may well have a stake in decisions concerning the respective jurisdictions of the legislative and exective branches, the courts, too, must occasionally adjudicate, and by implication. allocate constitutional powers.

Intricate questions of standing and justiciability and the policy debates rele vant to the wisdom of judicial intrusion into "political" matters would permeate a fully adequate discussion of the judicial role. Of necessity, examination here must be brief, and conclusions writ large. In spite of all the doctrinal technicalities, there exist recent and authoritative assertions that "[n]o case thus far has held that a legislative-executive conflict is non-justiciable," (48) and that the Supreme Court has already served as “umpire between Congress and the President." (49) In fact, however, the instances wherein issues of the allocation of congressional and presidential power have been squarely litigated are so few that case law precedent yields no compelling rationale.

Apart from whether wisdom dictates abstention from Supreme Court decisionmaking in these issues, it is clear that the contexts of disputes over the allocation of power vary dramatically. Accordingly, no single formula for court adjudication of such questions is appropriate. Certain critical considerations readily occur.

1. It is important to distinguish whether an action is challenged solely because it violates the separation of powers doctrine, or because, although the action is arguably undertaken by the wrong branch, or without the proper concurrence of another branch, it nonetheless also violates the Constitution because it is in derogation of general limitations on the scope of governmental power. Presi dential action usurping a congressional power and violating the First or Fourth Amendment protections of an individual is obviously not legitimated by explicit congressional concurrence. (50) Some such considerations may, in actuality, underlie questions of the "standing" of a soldier to question the legality of the war in Indochina. At some point, the threat of injury may create the equivalent of a due process claim in addition to the generalized assertion of illegality by virtue of an arguably unconstitutional exercise of warmaking power by one branch. (51) The two constitutional claims should, however, be distinguished. It is, in reality, the Bill of Rights assertion which here gives the argument for judicial determination its compelling force.

2. The status of the party or entity asserting the claim is obviously critical. as is the status of the entity against whom the claim is pressed. Putting aside all the difficulties involved in suing the President, eo nomine, (52) there is an obvious difference between the coordinate branch itself claiming a violation, and the position of a third party injured by the action. Apart from the greater ability of Congress to protect its jurisdiction by political means, it would be incongruous for Congress to ask the Court to determine whether the record shows that Congress gave the President adequate support in the exercise of a concurrent power. At the very least the logic of constitutional structure demands that Congress speak with clarity before adjudication between contrary and inconsistent positions is permitted. (53) If Congress does not speak, it simply can assert no constitutional violation, whatever be the position of private parties. If the Congress and the President have both spoken, and if a third entity is thereby requested to act in inconsistent ways to respect these conflicting orders, the case for Supreme Court jurisdiction of the issue is obviously at its strongest.

3. It follows from the preceding point that the ability of the coordinate branch to speak at all on an issue and thereby share power may be critical to the assumption of Supreme Court jurisdiction. This becomes a vital consideration in perplexing issues involving the President's alleged "emergency" power. In the Prize Cases (54) it was not contemporaneous participation, but subsequent legislative ratification which bore heavily in favor of the legality of Presidential action. 4. A traditional distinction bearing on the allocation of powers between branches of government descends intellectually from the sovereignty theories of Bodin and Austin, and accords to the national government inherent and virtually unlimited powers in foreign affairs. (55) Although the Curtiss-Wright doctrine does not of itself address questions of proper power allocation, it under

cuts any clear limitations based on prohibited delegation and destroys the utility of a literalist approach to the specific grants of foreign affairs of warmaking powers to each branch.

5. The case for assumption of an umpire's role by the Court has also been argued in the instance where one branch usurps the "executive" powers of another. For reasons already elaborated, with respect to Justice Jackson's analysis in the Steel Seizure Case, however, contextual findings of an "exclusive" power must first overcome the twin difficulties of textual vagueness and the deliberate overlap of constitutional jurisdictions.

6. In a situation where excessive delegation of power is at issue, the third parties should be free to request judicial intervention. Although it is unlikely that such a challenge would succeed on the merits, the argument rests on an assertion that the separation of powers has not been respected. Since the possibility of undue court intrusion into a conflict between coordinate branches is, by definition not present when the constitutional claim is excessive cooperation, judicial resolution of the respective institutional jurisdictions carries few risks of impropriety.

7. Finally, there exists a separate set of considerations respecting the appropriateness of adjudicating matters concerning the "internal" affairs of the respective branches. Two distinct separation of powers issues are here presented. The first is the propriety of the Court itself intruding into the issue. The second relates to the obvious point that few matters in modern government are truly exclusively "internal." Herein lies the significance of the debate over the scope of "executive privilege." (56) Here again, both existing doctrine (57) and analysis of constitutional structure suggest that a single formula for resolution is inappropriate. A congressional request may carry greater force than that of a private citizen. (58) These issues will not be resolved here. Suffice it only to note that although Congress has political methods of redress not available to the citizen, it also has stronger claims of public necessity to use such information in furtherance of its constitutional duties.

VI. POSTSCRIPT

The form a government assumes is not dictated by inevitable forces, nor does it always remain loyally frozen into a given historical mold. The present theory of governmental structure retains viability because it preserves freedoms of value to its citizens. Existing threats to this structure can be met only by a greater constitutional awareness of the actors within it. The role of the Supreme Court is not derogated by the demand that Congress self-consciously assume a greater role as an agent of constitutional decision-making. Herein lies the strength and value of the doctrine of shared national power; herein also lies the road to a more perfect union of legal theory and political life.

REFERENCES

1. U.S. Const., art. I. § 8, cl. 3: Wickard v. Filburn, 317 U.S. 111 (1942). See R. Stern, The Commerce Clause and the National Economy, 1933-1946, 59 Harv. L. Rev. 645, 833 (1943).

2. See R. Berger, Congress v. The Supreme Court, 8-16 (1969).

3. Those who observe Clemenceau's dictum that "politics is the art of the possible" do not err in the theoretical formulation of one valid criterion of action. Rather, because they invariably utilize the maxim as an excuse for abstention and for limiting the scope of duty to act, they fail to apply creative imagination. Political "realists," in this sense, judicial or otherwise, are often suspect not for observing crass and cynical standards, but because they may fail to perceive accurately where the boundaries of the politically "possible" really lie. In light of these difficulties, there is much to commend the consistently literalist views of the late Justice Black on the Bill of Rights. While his position expands greatly the power of the Court to assert its role, it at the same time serves to limit the range of judicial discretion. The latter is at least as likely to engender political controversy as the former.

4. See e.g., M. Finkelstein, Judicial Self-Limitation, 37 Harv. L. Rev. 338 (1924); M. Weston, Political Questions, 38 Harv. L. Rev. 296 (1925); M. Finkelstein, Further Notes on Judicial Self-Limitation, 39 Harv. L. Rev. 222 (1925) K. Tollett, Political Questions and the Law, 42 U. Det. L.J. 439 (1965); A. Bickel, Foreward: The Passive Virtues, 75 Harv. L. Rev. 40, 46