Separation of Powers—Legislative-Judicial Relations
If you have any questions, please contact us in NCSL's Denver office at (303) 364-7700. Also, please email us if you would like to recommend legislative resources or case law that may enhance the Separation of Powers website.
Every society has confronted the question of how to resolve disputes. Many early societies chose a private system of revenge for dispute resolution but, as civilizations evolved, communities began designating individuals to resolve disputes impartially in accordance with established norms and customs.
In Ancient Greece, rulers and a group of respected elders in the community were empowered to hear disputes. The judicial powers of these institutions were gradually replaced by an assembly of 6,000 jurors that was divided into smaller panels to hear particular cases.
Juries played a key role in the development of the English judicial system. As more legal disputes were submitted to juries for resolution, however, concerns arose that both judges and juries were rendering biased decisions based on irrelevant and untrustworthy evidence. Trial procedures often were deemed haphazard, arbitrary and unfair. The concerns about the English judicial system affected the development of the U.S. judicial system.
The general blueprint for the U.S. judiciary is laid out in Article III of the U.S. Constitution, and many details of federal judicial power are spelled out in the Judiciary Act of 1789. State judicial systems are created similarly by state constitutional and statutory provisions.
One of the principal characteristics of the U.S. judicial system is that it has a specific role under the separation-of-powers doctrine. Under the doctrine, laws are passed by the legislature and enforced by the executive branch. The judiciary interprets and applies the law, adjudicates legal disputes and otherwise administers justice. This includes the authority to enforce—or void—statutes when disputes arise over their scope or constitutionality.
The power of the judiciary is balanced by the legislature's ability to pass new laws and propose constitutional amendments. Legislatures also may have the power to confirm, select or impeach judicial branch officials.
Examples of the areas in which legislative-judicial conflict may arise include:
Judicial confirmations, selections or impeachments
Enrolled bill doctrine
Legislative intent and histories
Judicial Review and Interpretation
Federal: Congressional Research Service, Constitutionality of the Deficit Reduction Act of 2005
Michigan: Michigan Bar Association, "Judicial Review of Legislative Action," Law School for Legislators
NCSL: Mason’s Manual of Legislative Procedure, 2000 edition, Chapter 8, “Power of Courts with Reference to Legislative Procedure.”
Michael Libonati, "State Constitutions and Legislative Process: The Road Not Taken," Boson University Law Review, Vol. 89:863, 1989
Stephen Raher, Judicial Review of Legislative Procedure: Determining Who Determines the Rules of Proceedings, 2008
Robert F. Williams, American State Constitutional Law
Enrolled Bill Doctrine
Kentucky: Kurt, X. Metzmeier, "Clocks and Courts: Enrolled Bills and Extrinsive Evidence," University of Louisville School of Law Faculty Blog, April, 23, 2008
North Dakota: North Dakota Attorney General, Attorney General's Opinion 91-11, July 1991
Texas: Texas Legislative Council, Texas Legislative Council Drafting Manual, September 2008
Texas: Texas Attorney General, Attorney General's Opinion JM-1086, August 1989
Legislative History and Intent
California: Legislative Research, Inc., Research and Practice Guide: California Legislative History and Intent, Sixth Edition, 2005
Colorado: Colorado Office of Legislative Legal Services, Researching Legislative History, 2009
Minnesota: Minnesota State Legislature, Minnesota Legislative History Guide
New York: New York State Library, Legislative Intent, January 16, 2013
North Carolina: North Carolina Legislative Library, North Carolina Legislative History Step-by-Step, 2013
North Carolina: University of North Carolina, N. C. Legislative History, 2011
Ohio: Legislative Service Commission, "A Guide to Legislative History in Ohio, Members Only, Volume 128 Issue 10, Jan. 26, 2010
Virginia: Virginia Division of Legislative Services, "Legislative History," Legislative Reference Center
Washington: Washington Secretary of State, Legislative History
Wisconsin: Legislative Reference Bureau, "Researching Legislative History in Wisconsin," Wisconsin Briefs, Brief 06-10, July 2006
Wyoming: Wyoming State Legislature, Legislative History of Wyoming Laws
Federal: Marbury v. Madison, 5 U.S. 137 (1803)
Kentucky: Lafferty v. Huffman, 35 S.W. 123 (1893)
Kentucky: D&W Auto Supply v. Department of Revenue, 602 S.W.2d 420 (Ky. 1980)
Pennsylvania: Consumer Party of Pa. v. Commonwealth, 507 A.2d 323 (Pa. 1986)
South Carolina: Tolentino v. Secretary of Finance, 235 SCRA 630
Receiving Information or Recommending Additions
If you have any questions, please contact Brenda Erickson in NCSL's Denver office at (303) 364-7700. Also, please contact Brenda if you would like to recommend legislative resources or case law that may enhance the Separation of Powers website.