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Separation of Powers An Overview

Separation of Powers -- An Overview

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The term  "trias politica" or "separation of powers" was coined by Charles-Louis de Secondat, baron de La Brède et de Montesquieu, an 18th century French social and political philosopher. His publication, Spirit of the Laws, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United States. Under his model, the political authority of the state is divided into legislative, executive and judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently. 

Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another.  The intent is to prevent the concentration of power and provide for checks and balances.  

The traditional characterizations of the powers of the branches of American government are:

* The legislative branch is responsible for enacting the laws of the state and appropriating the money necessary to operate the government. 

* The executive branch is responsible for implementing and administering the public policy enacted and funded by the legislative branch. 

* The judicial branch is responsible for interpreting the constitution and laws and applying their interpretations to controversies brought before it.

 Forty state constitutions specify that government be divided into three branches:  legislative, executive and judicial.  California illustrates this approach; "The powers of state government are legislative, executive, and judicial.  Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution."

 While separation of powers is key to the workings of American government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap; they are too complex and interrelated to be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of government. Throughout American history, there also has been an ebb and flow of preeminence among the governmental branches. Such experiences suggest that where power resides is part of an evolutionary process. 

 This Web page provides resources for legislators and staff to use in addressing separation of powers issues.  It organizes them into broad categories and links to a diverse set of resources to illustrate how the doctrine applies to specific issues under each category.  The resources include law review articles, court cases and legislative reports.

 

Resources

Alaska: Alaska Legislature, Separation of Powers
http://w3.legis.state.ak.us/docs/pdf/Separation_of_Powers.pdf

Iowa:  Iowa Legislative Services Agency, Legislative Guide to Separation of Powers, 2005
https://www.legis.iowa.gov/DOCS/Central/Guides/lgseppwr.pdf

Minnesota:  Minnesota House Research,  Separation of Powers: When Statutes and Court Rules Conflict, 2005
http://www.house.leg.state.mn.us/hrd/pubs/ss/ssseppw.pdf   

Pennsylvania: Pennsylvania Legislature, Separation of Powers
http://www.legis.state.pa.us/WU01/vc/visitor_info/blue/powers.htm

 

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. 

 

 

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