Chapter § 12.4

• Jurisdiction: Oregon

§ 12.4 CORE POWERS OF THE BRANCHES OF GOVERNMENT

Determining when one branch of government has unduly burdened another or has exercised the essential functions of another requires first understanding the core functions of each branch. See § 12.4-1 to § 12.4-3(b) (describing the core powers of each branch).

§ 12.4-1 Core Powers of the Legislative Branch

Article IV, section 1(1), of the Oregon Constitution vests in the legislative assembly all "legislative power of the state, except for the initiative and referendum powers reserved to the people," and Article IV, sections 1(2) to (3), reserve to the people the powers of initiative and referendum. Thus, in Oregon "the legislative power is a unitary authority that rests with two lawmaking bodies, the legislature and the people." Hazell v. Brown, 352 Or 455, 465, 287 P3d 1079 (2012). See also Meyer v. Bradbury, 341 Or 288, 299, 142 P3d 1031 (2006) (the legislature and the people, through the initiative and referendum powers, comprise "a single legislative [branch]."). Although those bodies are separate, their exercise of the legislative power "is always 'coequal and co-ordinate,' regardless of which of the two entities wields it." Hazell, 352 Or at 465 (quoting Meyer, 341 Or at 300). See also MacPherson, 340 Or at 126 ("In Oregon, the Legislative Assembly and the people, acting through the initiative or referendum processes, share in exercising legislative power.").

That lawmaking power is "plenary," meaning that it is "subject only to limits that arise either from the Oregon Constitution or from a source of supreme federal law." Kellas v. Department of Corrections, 341 Or 471, 478, 145 P3d 139 (2006). See also Wright v. Blue Mountain Hospital District, 214 Or 141, 145, 328 P2d 314 (1958) (the legislature is empowered "to enact any law not forbidden by the constitution or delegated to the federal government or prohibited by the Constitution of the United States").

Although the legislative assembly and the people share the power to make laws under the Oregon Constitution, "[n]ot every action taken by the legislature involves the making of a law, and the people do not share the other powers of the legislature." Harisay v. Clarno, 367 Or 116, 127, 474 P3d 378 (2020). For instance, the Oregon Constitution also gives the legislature the authority to determine the qualifications of its own members and the rules of its proceedings (Or Const, Art IV, § 11), the power to enact "[j]oint resolutions" (Or Const, Art IV, § 25), and certain powers concerning state budgetary control (Or Const, Art III, §§ 2-3).

§ 12.4-2 Core Powers of the Judicial Branch

The power of the courts is to decide cases (see Or Const, Art VII (Amended)), and the courts have the inherent power to take the actions necessary to carry out their judicial function. See Nicklin v. Hobin, 13 Or 406, 410, 10 P 835 (1886) (describing "the power of the court to hear and determine all matters"); see also Law v. Zemp, 362 Or 302, 327, 408 P3d 1045 (2018) (courts have "broad inherent powers, sometimes also recognized by statute, to do those things that are necessary to perform their judicial function").

In their adjudicative capacity, courts interpret and apply regulations, statutes, and constitutional provisions, and establish rules of law in equity and the common law in the absence of legislative action. See Farmers Insurance Co. v. Mowry, 350 Or 686, 698, 261 P3d 1 (2011) (the court has an "obligation when interpreting constitutional and statutory provisions and when formulating the common law . . . to reach what [it] determine[s] to be the correct result in each case"); Pendleton School District 16R v. State, 345 Or 596, 609, 200 P3d 133 (2009) (the court has an "obligation to determine what the law is"); Smith...