3152

VETOES

labels to the various governmental functions is but
conclusory, Cooper & Cooper, supra, at 482; that the nature
of the act performed and not the title of the performer
determines whether an act is legislative or executive,
Opinion of the Justices, 266 A.2d 823, 827 (N.J. 1970); that
any attempt to allocate governmental authority on a purely
"functional" model, (viz., the Legislature "makes law" while
the executive "carries it out") is of little further
assistance in determining whether an encroachment has
occurred, Cooper 6 Cooper, supra, at 483—487; and that the
several branches are not wholly separated, Buckley v. Valeo,
426 U.S. 1, 120-23 (1976) (per curiam opinion). "Indeed,
there are governmental powers of doubtful classification
which may he held properly to belong to either of more than
one department of government." II Pound, Jurisprudence,
330—331. See also, Opinion of the Attorney General [Tenn.
12/22/75) .27

As Mr. Justice Holmes "... in a classic formulation of
the principles of the separation of powers, observed...":

"The great ordinances of the Constitution do not
establish and divide fields of black and white.
Even the more specific of them are found to
terminate in a penumbra shading gradually from
one extreme to the other.... It does not seem to
need argument to show that however we may
disguise it by veiling words we do not and cannot
carry out the distinction between legislative and
executive action with mathematical precision....
When we come to the fundamental distinctions it
is still more obvious that they must be received
with a certain latitude or our government could
not go on.

"The fact that the boundaries between the powers
of the different branches are vague and uncertain
implies that the authority of each branch should
be absolute only within the core of the powers
the Constitution assigns it. Beyond the core of
its powers, a branch certainly may act, but its
activities begin to operate in an area where
authority is shared with other branches.
'[T]here is a twilight in which [the President]
and Congress may have concurrent authority, or in
which its distribution is uncertain.' Within this
'gray area' Congress may act to the extent that
it has legislative authority and does not
encounter an express constitutional limitation or
intrude upon the core of powers held by another
branch."

Stewart, supra, at 602-603. See also, 16 C.J.S.
Constitutional Law §130.28 Thus, the question for analysis
here is whether the proposed legislation would inject the