LEGISLATIVE JUDICIAL RELATIONS : SEPARATION OF POWERS

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 review
  • Judicial interpretation
  • Judicial confirmations, selections or impeachments
  • Enrolled bill doctrine
  • Legislative intent and histories

APPROPRIATION POWERS

Legislatures are responsible for enacting laws and appropriating funds. But what does “appropriating funds” mean? It is the action taken by the legislature to authorize the expenditure of a designated amount of public funds for a specific purpose.

  • By definition, “appropriating funds” appears to be straightforward. In reality, the appropriation process is not quite so clear cut. Both legislative and executive branches play significant roles in budgeting.
  • Executive branch agencies provide budgetary information to the governor, who then develops a proposed budget and submits it to the legislature.
  • The legislature reviews and adjusts the governor’s proposed budget until it is in a form that is acceptable to the legislature, and the budget is passed.
  • The enacted budget is returned to the governor for his or her consideration.
  • Governors may veto the enacted budget in its entirety. In most states, governors also have the option to veto only portions (items) of the bill.
  • If any gubernatorial vetoes occur, the budget is returned to the legislature with the governor’s objections.
  • The legislature can override gubernatorial vetoes, thereby enacting the vetoed bill (or portions thereof) into law over the governor’s objections.

In addition, most states operate under balanced budget requirements. Questions frequently arise over who is responsible for maintaining the balanced budget and what actions can be taken to do so.

Federal funds also can trigger state legislative-executive conflict over who controls these funds.

EXECUTIVE VETO POWERS

Two of the main responsibilities of the legislative branch are to enact the laws of the state and appropriate money for the administration of public policy.  State constitutions balance these legislative powers by giving veto authority to the chief officer of the executive branch (i.e., the governor).

Every state constitution empowers the governor to veto an entire bill passed by the legislature.  Many constitutions  expand the executive’s veto powers by also authorizing methods of veto that permit particular portions of a bill to be rejected or changed.  Partial veto methods include item (or line item) veto, amendatory veto and reduction veto.

The veto process is very formal and time sensitive, and how time is counted is extremely important.  Legislatures often face specified times within which measures must be delivered to their governors.  Once a bill is delivered to the governor, the number of days for gubernatorial action on a measure also is limited.  If the governor vetoes a bill (or portion thereof), it must be returned to the house of origin for reconsideration.  To become law, each chamber must repass the bill (or portion thereof), usually by a supermajority vote.

Questions arising with the veto process include:

  • What is the number of days in which the governor must sign or veto the bill?
  • How is that number computed (when does the “tolling” begin)?
  • Must the governor’s objections be sent with the vetoed bill?
  • What constitutes a gubernatorial veto message?
  • Must a vetoed bill be returned to the legislature when it is actually in session?
  • Does adjournment by the legislature prevent return of the bill, and if so, when does the time period for signature or veto begin (after presentation of the bill to the governor, after adjournment of the legislature)?

Item (or Line Item) Veto

Although the legislature has the exclusive power to appropriate, many governors can veto items contained in appropriations bills without having to veto the entire bill.  Granting the governor line-item budget veto authority, for example, would appear to infringe on the legislature’s appropriation authority, yet 44 states allow it.  Thus, the power to control spending is shared.  As a result, budgeting is an area where friction between the legislative and executive branches often occurs.
Questions arising with the item veto process include:

  • What constitutes an appropriation bill?
  • What constitutes an item within an appropriation bill?

IMPEACHMENT

Separation of powers is not absolute, and its system of checks and balances is designed to allow each branch to restrain abuse by another branch. As a result, legislatures often are granted the ability to oversee official government conduct and to remove executive or judicial public officers from their positions, called “impeachment.”   The word “impeachment” originates from Latin roots expressing the idea of being caught or entrapped, and it is the act of challenging the honesty or credibility of a person. Impeachment does not necessarily result in removal from office.
The impeachment process was first used by the English Parliament in the 14th century. Following the British example, the U.S. Constitution and all state constitutions except Oregon’s include an impeachment doctrine.

The impeachment process actually has two stages, and the responsibility for each stage usually is separated.

  • The first stage is the impeachment—that is, the development of a formal accusation or statement of charges. Most often, the responsibility for this stage is given to the “lower” legislative chamber, i.e., the house or assembly. During this stage, accusations are heard and investigated. If the body believes that misconduct occurred, the charges—articles of impeachment—are developed and voted upon. If the requisite affirmative vote is reached, the articles of impeachment are forwarded to the body responsible for the second stage of the process.
  • The second stage is the formal consideration of the charges laid out in the articles of impeachment, and the responsibility usually is assigned to the “upper” legislative body, i.e., the senate. This stage resembles a trial; both sides may call witnesses and present evidence. When the presentation of arguments is completed, the body must vote whether to find the person guilty of the charges, and a supermajority vote typically is required to convict the accused.

Impeachment is relatively rare. For example, for more than 200 years, the U.S. House has impeached only 18 federal officials. In 1994, a state Supreme Court justice became the first Pennsylvania judge to be impeached in 183 years. In 2000, the New Hampshire House held an impeachment proceeding—something that the House had not done in 210 years. The 2004 impeachment of the state controller was the first impeachment in Nevada’s 140-year history. The Illinois House has impeached only two people in the state’s history—a judge in 1832-33 and a governor in 2008-09.
Why do impeachments occur so infrequently? The reasons include:

  • Impeachment is regarded as a power to be used only in extreme cases.

Individuals frequently resign before the impeachment proceedings begin or are completed.

State-Tribal Relations

Native American tribal governments are sovereign, self-governing entities.   Much like state governments, tribal governments are responsible for the health, safety and welfare of their citizens and their communities.  Tribal sovereignty pre-dates the formation of the United States and is recognized through the U.S. Constitution and numerous federal statutes and court cases.   Tribal governments are on equal footing with state government and have a government-to-government relationship with federal government.  The sovereignty of each entity necessitates a government-to-government relationship at the state and tribal levels as well.

States and tribes have adjacent jurisdictions, with some tribes crossing into the boundaries of more than one state.  These bordering jurisdictions are a key reason why state-tribal relationships are necessary.  In addition, services are now provided by tribal government to members and non-members who reside on or near the reservations.  This makes coordination between state and tribal agencies and service providers essential.  There also is an increasing desire to ensure that services provided to tribal members through state programs are culturally-competent in order to increase effectiveness.  Finally, tribal citizens are also citizens of the state in which they reside.  State legislators have a responsibility to provide for the well-being of all state citizens, tribal and non-tribal alike.  The health and well-being of tribal citizens and tribal communities enhance the overall health of a state.  In short, strong tribes contribute to strong states.

Intergovernmental agreements and state-tribal compacts are one tool in promoting positive state-tribal relationships and fostering collaborative policy development.  There are many policy issues and aspects of Indian law that require a high degree of state-tribal cooperation.  The Indian Child Welfare Act (ICWA), taxation, public safety, emergency response and criminal jurisdiction and law enforcement are some of the key areas that can benefit from formalized agreements.   Much as interstate agreements allow for government-to-government cooperation, state-tribal agreements accomplish the same end.  This type of state-tribal cooperation allows the parties to tailor policy solutions to local situations while respecting state and tribal sovereignty.   Consultation and cooperation through the agreement/compact negotiation and formation process can help policymakers avoid legislation that produces unintended consequences and spare the parties the potential costs of litigation.

Negotiating Interstate Compacts

Interstate compacts are critical tools that allow states to cooperate with other states, Indian tribes or foreign jurisdictions on issues that cross jurisdiction boundaries.  Legal authority for interstate compacts starts with the U.S. Constitution, which provides that “no state shall without the consent of Congress…enter into any agreement or compact with another state or with a foreign power.”   But, after federal authorization is established, a significant legal question remains: which branch of state government gets to negotiate the compact on behalf of the state, the executive or the legislative?

The question of negotiation authority is important for all compacts and vitally important for compacts related to controversial topics.  In particular, it is important to establish whether the state’s chief executive can negotiate compacts without oversight or input from the legislative branch.  The powers of the state executive and legislative branches are determined by individual state constitutions.  Negotiation authority can vary within a state depending on the compact topic and court interpretations of constitutional provisions.  In some examples, constitutional provisions prevent the legislature from delegating authority for particular issues to the executive branch.

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