Separation of Powers: Is There a Cause for Concern?
| Publication year | 2013 |
| Pages | 30 |
By Natalie Haag
Most KBA members have heard about the budgetary restraints and the resulting limitations facing the judicial branch. Our organization has lobbied the legislature for more money for the judiciary and as proponents of an independent judiciary. As lawyers, we also focus on legislative proposals that impact our law practices, our clients or the courts. It is now time we look at the growing role of the legislative branch in executive branch functions with a view toward how changes may impact our tripartite form of government and ultimately how it might encroach on the judicial branch. The issue is one of separation of powers.
I. What is Separation of Powers?
Although it is not specifically mentioned in the Kansas Constitution, the Kansas Supreme Court has recognized the doctrine of separation of powers.[1] The concept of separation of powers is founded on the premise that there are three separate branches of government: the executive, the legislative, and the judicial, and that each of the three branches shall have powers distinct from the others. The general concept is:
• The legislative power includes the power to make laws that establish the public policies of the state. In short, the legislative power is to make, amend, or repeal law.[2]
• The executive branch has the power to execute the laws, that is, to carry them into effect.[3]
• The judiciary has the power to interpret the laws and apply the law to actual controversies.[4]
It is "checks and balances" at its best. While an absolute separation of powers is impossible,[5] we must remain vigilant to protect this system of checks and balances.
II. Are the Executive Branch Powers Eroding?
It has long been recognized that the legislative branch had the propensity for overreaching its powers.
Thomas Jefferson in his Notes on the State of Virginia, Constitution (1758), stated: "All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government."
James Madison in The Federalist Papers No. 48, stated: "The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. ... The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.
Shelby Smith, former lieutenant governor and secretary of administration, in the Scandal Time Bomb Ticking, by Lew Ferguson,[6] stated: "Blurring the lines of separate and coequal branches of government is the breeding ground for scandal.
In 2001, Smith testified before the legislative Special Committee on the Judiciary identifying 70 assignments of legislators to state boards and commissions involving 31 different state bodies. He noted that 110 such appointments actually occurred that year but only 88 were by legislative mandate and 22 by gubernatorial discretionary appointment.
By January 29, 2008, 25 statutory committees existed to conduct interim studies or oversight activities and whose membership was principally legislative. At the same time, 59 agencies and groups created through legislation after 1985 included legislators, appointments made by legislators, or both.[7]
Despite strong warnings from Smith, as of August 14, 2012, there were still 25 statutory committees and 42 agencies and groups with legislative appointments,[8] including at least two new such committees/governing bodies that were established during the 2012 session. The membership of the 42 state agencies and groups includes 160 representatives of the legislature, including 88 legislators and 72 members appointed by legislators. The statutory committees include 242 legislator members out of 280 total committee members.
Additionally, during the 2012 session, one committee alone considered four additional oversight committees, including a Joint Committee on KanCare Oversight (HB 2789 and SB 459), Kansas Employment First Oversight Committee (SB 205), Joint Committee on State Authorities Oversight (SB 243), and Joint Committee on Oversight of the Closure of the Kansas Neurological Institute (HB 2296).
Legislative involvement in executive branch functions has been challenged in the past. The separation of powers doctrine does not prevent individual members of the legislature from serving on administrative boards or commissions when such service falls in the realm of cooperation on the part of the legislature and there is no attempt to usurp functions of the executive department of the government.[9] For example, the appointment of a majority of the members of the Governmental Ethics Commission did not constitute an unconstitutional usurpation of executive power by the legislative branch nor did it violate the doctrine of separation of powers.[10] In contrast, the statute creating the State Office Building Commission to manage state office buildings, review leases and approve construction, which limited the governor's commissioner appointments to legislators, was deemed an unconstitutional encroachment on the executive powers.[11] The legislature also unconstitutionally violated the separation of powers doctrine when it adopted a statute allowing the legislature to adopt, modify or revoke administrative rules and regulations by concurrent resolution without presentment to the governor. The Supreme Court upheld that ruling even though legislators contended their approval of rules and regulations was simply an extension of the legislative function of creating the laws.[12]
Legislative involvement with the governing bodies or oversight committees by itself may not constitute a violation of the separation of powers doctrine; however, at what point does the role of the legislature in joint committees, oversight commissions, and memberships on executive branch governing boards become so pervasive that it begins to usurp the authority of the executive branch? The current scope of issues and governing boards with mandatory legislative roles or appointments is broad.
Here are just a few of the governing bodies, joint committees and oversight committees with legislative members or appointments and some of the issues they handle:
A. Social Services
1. Coordinating Council on Early Childhood Development Service (K.S.A. 74-7801 et seq.)
Membership: Not less than 16 to not more than 25 members, including two legislators
Duties: To develop and implement a plan for the delivery of health, education and social services for young children with or at risk for disabling conditions, appoint a staff person and determine the work activities of said staff person, and propose policies and recommendations for delivery of services.
2. Kansas Commission on Disability Concerns (K.S.A. 74-6701 et seq.)Membership: 30 members, including 4 legislators Duties: To carry on continuing programs to promote a higher quality of life for people with disabilities and assist other agencies with this mission.
3. Joint Committee on Children's Issues (K.S.A. 46-3001 et seq.)Membership: 10 legislators
Duties: To oversee the implementation and operation of children's health insurance plans, including assessment of the performance based outcomes set forth in law and "other children's issues as the Committee deems necessary."
4. Joint Committee on Home and Community Based Services (K.S.A. 39-7,160)
Membership: 9 legislators
Duties: To review the number of individuals transferred from institutional settings to home and community based settings and the cost savings; review community capacity and ensure that adequate progress is being made for the transfers to occur; study and determine the effectiveness of the program and perform a cost analysis; review the salaries, benefits, and training of direct care staff and ensure that any proceeds resulting from the successful transfer be applied to the system of long-term care and home and community-based services.
B. Public Safety
1. Justice Reinvestment Working Group (2012 Kansas House Bill 2684)
Membership: 17 members, including 4 legislators Duties: To study the data-driven, fiscally responsible policies and practices that can increase public safety and reduce recidivism and spending on corrections in Kansas.
2. Emergency Medical Services Board (K.S.A. 65-6102 et seq.)
Membership: 13 members, of which 4 members are appointed by legislators
Duties: To select the administrator/CEO of the agency, adopt rules and regulations, conduct hearings on regulatory matters, enter contracts, develop a state plan for delivery of emergency medical services, review and approve training programs and funding requests, approve methods for examination for certification, set standards for providers, and appointment of a medical advisory council.
3. Joint Committee on Corrections and Juvenile Justice Oversight (K.S.A. 46-2801 et seq., as amended)
Membership: 14 legislators
Duties: To...
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