“The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.” Bowsher, 478 U.S. at 726. Therefore, any scheme whereby Congress — whether itself or through one of its committees, members, or agents — appoints, retains removal authority over, or otherwise exercises any type of continuing authority over an arbitrator32 violates the constitutional anti-aggrandizement principle. This principle extends to non-voting members. NRA Political Profit Loans, 6 F.3d at 827. ex-officio non-voting member of an arbitral panel.
32 Buckley and NRA Political Profit Fund establish that Congress violates the anti-aggradizement principle if it retains control over any member of a nonlegislative body, even though a single member cannot alone take any dispositive action. Thus, in the arbitration setting, it would not matter for purposes of separation of powers analysis that Congress exercises control over only a single member of, for example, a three-member arbitral panel. Such an arrangement would violate the anti-aggrandizement principle.
Legislation that is consistent with the Constitution’s express procedures and with the Bowsher principle may nonetheless affect the constitutional separation of powers by invading the constitutional rules of the executive or judicial branches. “[I]n determining whether [such an] Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions.” Nixon v. Manager from Gen. , 433 U.S. 425, 443 (1977); cf CFTC v. Schor, 478 U.S. 833, 856-57 (1986) (“the separation of powers question presented in this litigation is whether Congress impermissibly undermined . . . the role of the Judicial Branch”). An affirmative answer to the question of whether Congress has prevented the executive or judiciary from accomplishing its functions, furthermore, would not lead inexorably to the judicial invalidation of the statute: in that case, the Court has stated, it would proceed to “determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress.” Administrator off Gen. , 433 U.S. at 443.
In the context of binding arbitration, concerns under this general separation of powers principle would arise if an arbitral panel were given authority that is constitutionally committed to the executive. For example, the Supreme Court has held that the President must retain at least some ability to control the exercise of federal criminal prosecutorial power. Select Morrison v. Olson, 487 U.S. 654 (1988). Thus, we believe the general separation of powers principle would stand as a bar to vesting an arbitration panel with unreviewable authority to direct or control the prosecution or conduct of federal litigation by the executive branch’s attorneys.
Where, on the other hand, a disagreement over the exercise of executive authority is submitted to binding arbitration, the general separation of powers principle has little force. The principle prohibits incursions that “prevent the Executive Branch from accomplishing its constitutionally assigned functions.” Nixon v. Officer away from Gen. , 433 U.S. at 443 (emphasis added). quoted inside the Morrison v. Olson, 487 U.S. 654, 695 (1988). The Constitution does not, however, assign to the executive branch exclusive responsibility for resolving disputes over the exercise of its authority. The very language of Article III providing for federal court jurisdiction over disputes involving “the United States” demonstrates that the Constitution does not require that the authority to resolve such disputes over executive action be vested in the executive branch itself. Resolution of such disputes by private arbitrators, therefore, does not in itself disturb the separation of powers that the Constitution ordains.