There are two conflicting judicial philosophies about separation of powers that are apparent on the Court. The first is formal or strict separation of powers. Under this view (expressed by Justice Scalia in his dissent in Morrison v. Olson), any intrusion, no matter how small or technical, by one branch into the constitutionally assigned power of another branch, violates separation of powers. The second is functional or pragmatic separation of powers. Under this view (expressed by Justice White in his dissent in Bowsher v. Synar), the court is concerned with whether there is a genuine threat of encroachment or aggrandizement of one branch at the expense of another. Applying this approach, the Court would worry that one branch is increasing the scope of its authority unreasonably and disturbing the delicate balance among the three coequal branches by becoming too powerful (Bowsher v. Synar and concern that by making and executing the laws, Congress was exercising too much power under the Deficit Reduction Act).

Justice Scalia (dissenting in Morrison v. Olson):

Article II, § 1, cl. 1, of the Constitution provides:

The executive Power shall be vested in a President of the United States.

As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation of powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that, since the statute vests some purely executive power in a person who is not the President of the United States, it is void.

Justice White (dissenting in Bowsher v. Synar):

I cannot concur in the Court's action. Like the Court, I will not purport to speak to the wisdom of the policies incorporated in the legislation the Court invalidates; that is a matter for the Congress and the Executive, both of which expressed their assent to the statute barely half a year ago. I will, however, address the wisdom of the Court's willingness to interpose its distressingly formalistic view of separation of powers as a bar to the attainment of governmental objectives through the means chosen by the Congress and the President in the legislative process established by the Constitution.

The Court's decision rests on a feature of the legislative scheme that is of minimal practical significance and that presents no substantial threat to the basic scheme of separation of powers. In attaching dispositive significance to what should be regarded as a triviality, the Court neglects what has in the past been recognized as a fundamental principle governing consideration of disputes over separation of powers:

"The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J. concurring).