Separation of Powers in the States

Often quite different from the federal system.

|The Volokh Conspiracy |

The post about the Kentucky AG suing the Kentucky Governor post is a good reminder that the separation of powers operates very differently in many states than in the federal government. At the federal level, the executive power is vested in the President (though there are some disputes at the edges about independent agencies); but many states have independently elected executive officers—Governors, Attorneys General, Secretaries of State, and many more—that run different parts of the executive.

Beyond that, some state high courts have held that it's unconstitutional for state legislatures to create evidence codes or codes of civil procedure, since that's a part of the judicial power; that's not the federal view. Many states provide that the governing bodies of various powerful agencies will be appointed in part by the legislature; at the federal level, that's not allowed (except as to essentially advisory bodies).

Of course, other features of state government structure are also often different from the federal. Many states elect judges, many states allow the citizen initiative, referendum, and recall. Nebraska has a unicameral legislature. Different states have very different rules as to the governor's veto and pardon powers; and the list could go on.

There are doubtless some commonalities: No state has a parliamentary system, where the Governor is elected by the legislature, though I think there's nothing in the federal Constitution precluding that. (Many local governments, I believe, have something like that sort of model, with the city council appointing a city manager.) State and federal governments arise, after all, from the same constitutional culture, and the federal constitutional rules are an influential part of that culture.

And there is probably an irreducible constitutional minimum: I suspect that judges have to have at least some level of independence from legislative or executive officials (plus of course each state is supposed to have a republican form of government, so monarchies are out, and no state can have a House of Lords because no state can grant titles of nobility). Also, while states have considerable latitude in deciding voter qualifications in some respects, that's limited in other respects (both expressly, as to race, color, condition of previous servitude, sex, and age above 18, and via the Equal Protection Clause, as to various other matters).

But "the doctrine of separation of powers embodied in the Federal Constitution is not mandatory on the States,"and there is a broad tradition of substantial state variation from that federal structure.

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  1. “No state has a parliamentary system, where the executive is elected by the legislature”

    The Maine legislature elects the Attorney General.
    The President of the State Senate is next in line for Governor.

    1. Interesting, thanks! Just to be precise, I’ll revise the post to make clear that I was talking about the main executive official, which is to say the Governor. Prosecutors are odd critters in our legal system — as a recent post noted, they are usually appointed by governors but sometimes by judges, and in Tennessee the AG is appointed by the state supreme court.

      As to legislative officials being in the line of executive succession, that’s so in the federal system, too (right behind the Vice-President), though some academics have argued that it’s unconstitutional.

  2. The federal separation has turned into a distribution of powers, I sometimes think. Waaaay back when the federal government had little power, it made sense to have an executive appoint heads of various agencies and departments. Customs, the post office, that was about it for the civil side, and there was little power to abuse and little conflict between agencies and departments.

    I think things would be much better off now if the heads of agencies were appoint by Congress, not the executive. The agency and department heads have way too much power now, far beyond what I think the framers ever anticipated being controlled by the President. Well, I think the government itself has far more power than they ever anticipated, but that’s a different story.

    1. Customs, the post office, that was about it for the civil side, and there was little power to abuse and little conflict between agencies and departments.

      Customs had no power? It was the primary revenue generator for the US Government for almost 100 years. It had great power and the people appointed to run it abused its power regularly until the appointments process was eventually reformed. And there was regular conflict between agencies as the people appointed were frequently not experts or knowledgable about the position (remind you of the current administration?).

      While you are reading up on basic history of the US Government – make sure to look up the phrase “spoils system”.

      1. Oh psssh. Customs rates were set elsewhere. presumably by Congress. All customs officials did was take bribes or customs. That’s not power in the separation sense.

        And the post office? More pssssht. The civil service was 90% post office punks. That also is not power in the separations sense.

  3. Nebraska has a unicameral Legislature, something I find interesting, and promotes a unique brand of politics in that State.

    1. While unique it doesn’t really make politics much more interesting beyond the structure. The nonpartisan elections make it a little different, but not by all that much. We still know who’s an R, a D, and an L and they still get support from their respective groups.

  4. In states where you have multiple statewide elected officials it can get quite raucous with many of the lesser officials lining up to be the next Governor or Senator.

  5. In Texas, the Attorney General issues legal interpretations, and those opinions have the force of law unless overturned by judges.

    1. They also have a lieutenant governor who actually controls the work of the Texas Senate.

  6. A great example of this is in California, when Gov. Pete Wilson got into a dispute with the State Bar, the California Supreme Court held the State Bar was constitutionally mandated and appropriated funds for it.

    Obviously, you couldn’t do that on the federal level. (Although, maybe! What if, for instance, Congress refused to appropriate funds for federal judges whose compensation isn’t allowed to be cut during times of good behavior? Would SCOTUS rule that it could appropriate the funds?)

  7. The Equal Protection Clause does not grant anybody the right to vote. By itself it could be read as doing so, but that reading is prevented by Section 2 of the 14th Amendment (which penalizes any state that doesn’t let all of its men over 21 vote, by taking away part of their representation in the House — and thereby implies that each state still has that option).

    If it did so, then the 15th, 19th, and 26th Amendments would have been unnecessary.

    This means it is still legally possible for a state to introduce a property requirement for voting, but that state would suffer the representation penalty.

    1. jdgalt1: As a matter of text and original meaning, you might be right.

      But, along with most American lawyers and law professors writing about law, when I say “the First Amendment protects” or “the Equal Protection Clause limits” or some such, I’m referring to the current legal rules, usually as set forth by the Supreme Court. This tracks modern legal usage, and it’s also generally more useful to our readers, both lawyers laypeople: I think they generally want to know what the government is or isn’t allowed to do in our legal system today, not what it would be or wouldn’t be allowed to do under some hypothetical purely originalist or textualist system.

  8. While it’s certainly true that ” ‘the doctrine of separation of powers embodied in the Federal Constitution is not mandatory on the States,’ and there is a broad tradition of substantial state variation from that federal structure,” couldn’t Congress (50% with Presidential concurrence or 66% without) simply declare that such doctrine is a requirement of a “republican form of government” and thereby make it mandatory?

    Aside from and Luther v. Borden, Article IV, Sec 4 has received relatively little attention over the years… and one objection to it was “what Congress may see in our present [state] constitution, or any future amendments, not strictly republican in their opinions, who can tell?”

    1. It’s an interesting question — but one the Court hasn’t had to resolve, in part because Congress has never shown any interest in mandating federal separation of powers for the states.

  9. Not sure how the case ended but the Governor was sued in West Virginia because he did not physically live in the Capital. Also, not sure how it was interconnected but the ENTIRE state Supreme Court was impeached there around the same time.

  10. ‘Race, color, condition of previous servitude, sex, and age above 18’

    You left out failure to pay any poll tax or other tax.

    1. Deliberately — the Twenty-Fourth Amendment is limited to poll taxes in federal elections, and I’m speaking here of the structure of state governments. (The Supreme Court has rejected poll taxes for state elections, too, but that was under the Equal Protection Clause.)

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