The Washington PostDemocracy Dies in Darkness

Opinion Separation of powers is not a suggestion

The Supreme Court on Jan. 13.
The Supreme Court on Jan. 13. (Sarah Silbiger/For The Washington Post)

Ruth Marcus’s criticism in her Jan. 11 Tuesday Opinion column, “Chief Justice Roberts’s jarring vaccine jurisprudence,” of Chief Justice John G. Roberts Jr.’s resistance to interpreting a workplace safety statute to endow the Occupational Safety and Health Administration with authority to safeguard against a pandemic falling naturally within the purview of the Centers for Disease Control and Prevention, ignored a cornerstone canon of statutory construction: Congress does not hide elephants in mouseholes.

Ms. Marcus also errantly dismissed the Constitution’s separation of powers, which entrusts “all legislative powers” to Congress, as a mere velleity that should yield to executive legislation when Congress is divided. The purpose of separation is to require a broad consensus for federal government action to prevent any dominant faction from oppressing rivals, as James Madison elaborated in Federalist 10 and 51.  

Bruce Fein, Washington

The writer was an associate deputy
attorney general from 1981 to 1983.