While the text of the national Constitution of 1787 did not provide specific authorization for a separation of powers, categorical references to separate departments of government conveyed implicit recognition of the doctrine.(1) The Articles of Confederation placed whatever powers the central government might exercise, however inadequate, in the "United States, in Congress assembled" with little or no attention to differentiation or implementation except in perfunctory terms.(2) Despite the respect accorded to notions of separated powers set out by Locke and Montesquieu, any effort to establish such a system appeared to have been thwarted by an overriding need to create an enfeebled confederation in which the states and the legislatures in particular retained almost all of the indicia of sovereignty that they had previously claimed.(3) It remained for the Constitution of 1787 to establish the basis for separate departments intended to guard against tyranny, though like aims led to a blending of powers by way of a system of checks and balances.(4) During the two centuries since ratification and a marked infusion of national powers, significant modifications were introduced as essential to the success of the basic plan.(5) Separation survived, but not in the form in which its progenitors originally envisioned it.(6)
Over the years, especially in the era following the Great Depression of the 1930s, the separation doctrine exhibited signs of diminished significance.(7) Executive authority in the decisionmaking process expanded to a remarkable degree.(8) The administrative state assumed a newfound status and a measure of acceptance hitherto unknown in American history.(9) Formerly divisive issues of excessive delegability receded as less rigorous guidelines were used to control the operations of a vast bureaucracy.(10) Agency personnel came to exercise substantial discretionary powers by means of broad grants from legislators overwhelmed by the intricacy of contemporary governmental processes.(11) With the virtual disappearance of the acrimony attendant upon congressional delegation of major grants of power to the executive branch, familiar clashes associated with the separation of powers declined.(12) The notion that exacting standards were required to lend validity to allocations of authority to administrative entities was retained only as a rationale, often a feigned one, to facilitate ever broader grants.(13) Adherence to a strict separation doctrine, viewed in this light, existed more in the abstract than as an operative feature of government.(14)
Long the most vigorous critic of a steadily growing bureaucratization and its ultimate reviewer,(15) the United States Supreme Court acquiesced in a doctrine of primary jurisdiction, assigning a broad measure of discretion predicated upon the presumed expertise of administrators.(16) Compelling standards of delegability were less evident as the mechanisms of the national government continued to proliferate.(17) In many respects, old-line tests of accountability persisted as symbols, rather than as working standards.(18) The impact of these symbols was often minimal when measured against the congeries of power that had come to prevail during the New Deal years and succeeding decades.(19) However reluctant the Supreme Court might have been to yield to quasi-legislative units, the administrative state took on a life of its own, usually unencumbered by judicial interference, except under egregious conditions.(20) Whether expressly conceded or implicitly noted, efforts to contain or to curtail the growth of the administrative colossus receded into the outer reaches of constitutional adjudication.(21)
Nevertheless, the separation doctrine itself endured even if the negativism of the past dwindled, reappearing only on occasion and then in truncated form.(22) The independent counsel provisions of the Ethics in Government Act(23) were sustained in 1988, against separation of power challenges, on the ground that the law did not work "any judicial usurpation of properly executive functions."(24) A few years later, however, an interbranch conflict, affecting the courts and Congress, led to a holding of unconstitutionality on the basis of separation principles and the "structural safeguard" that these principles provided.(25) Even as the much-decried early New Deal cases continued to fade into oblivion, as late as the 1950s, the Court refused to discard the "accepted tests" of delegation.(26)
During the closing days of the 1996-1997 Term, the Supreme Court announced several decisions touching upon separation principles.(27) Among these was a case holding unconstitutional the so-called Religious Freedom Restoration Act which sought to reverse earlier rulings construing the Free Exercise Clause of the First Amendment.(28) In effect, Congress had attempted to attain, under the enforcement provision of the Fourteenth Amendment, what the Court disapprovingly described as a "substantive change in constitutional protections."(29) In rebuffing this effort, the Court reminded legislators that "[t]he power to interpret the Constitution in a case or controversy remains in the Judiciary."(30) Although the Court, in a different context, declined to reach the merits of a line item veto act passed by Congress because of the challengers' lack of standing, it left for another day weighty separation issues that remained unresolved.(31) Reappearance of the venerable doctrine served as a reminder that the three branches of the national government must be treated as separate entities even as rudiments of integration continue to intrude.
THE SEPARATION DOCTRINE IN THE STATES: ISSUES AND APPLICATIONS
If separation questions no longer project a recurrent level of primacy in the national constitutional scheme, especially in relation to issues of delegability, they have assumed greater significance, though of a different order, in the states.(32) There is less emphasis on economic power, not unexpectedly, in view of an increasing shift of responsibility to federal agencies during the middle and late decades of the twentieth century. State issues have been of a more traditional type, while still reflecting the problems of contemporary society.(33)
Though the separation principle is explicitly set out in many state constitutions, the institutional pattern to which it refers differs, at least in theory, from that of the national government.(34) The authority of the latter is predicated upon enumerated powers derived from the constitutional text. By contrast, the states retain "reserved" powers of a residual nature maintained apart from national control when not preempted by valid congressional action, the Supremacy Clause, and other factors judicially ascribed to the requirements of nationhood.(35) Indeed, the language of the Tenth Amendment has often been taken to preserve what remains of state sovereignty.(36) If, then, state powers are dependent upon a nebulous base of inherent sources, the separation of powers doctrine emerges as a continuing restraint to prevent oligarchic rule and the tyranny to which the Framers of the American Constitution so frequently adverted.(37) Yet the exercise of separated power by the branches of government, in many respects, is interrelated to, and thwarted by, a system of checks and balances that protrudes the powers of one branch into another and, to an extent, compels a blending of duties.(38) Thus, the rigors of separation are qualified and government is made more workable, while counterbalancing devices guard against an excessive accumulation of power in any one branch.(39) It is within this framework, beset by incongruities and confining modifiers, that the separation principle has evolved, while serving to sort out and to underwrite a commingling of responsibilities.
A representative sampling of state separation of powers cases, decided during the past two decades, reveals the types of contests in which state courts have become engaged and the results that have ensued.(40) Among the most intriguing have been conflicts concerning extraconstitutional issues that arose when, lacking any warrant in the state's fundamental law, the validity of long-term practices was called into question.(41) The two cases selected for review examine challenges to practices associated with the legislative process and sustained by historic considerations.(42) Whether judicial intervention itself was permissible in the circumstances ranked high among the initial queries that had to be resolved before the courts could move to weigh the merits.(43) Even if a minimal level of justiciability was established, the separation problem interposed additional sensitive issues related to the limits of judicial authority, when it touched upon the prerogatives of the legislature, a co-equal branch.(44) Nor was it clear how implementation of any judicial findings would be undertaken if resistance developed, particularly since any mandate for change might affect the executive department as well.
The practice of senatorial courtesy in New Jersey has long been a source of controversy in relation to executive nominations.(45) Along parallel lines is the gloss placed upon the federal constitutional clause requiring the advice and consent of the Senate in the confirmation process.(46) It is accepted that a United States Senator (of the same party as the President) may object conclusively to the President's nomination of a would-be officeholder to a federal post in the senator's home state.(47) This veto power affords members of the Senate pervasive influence over patronage matters and, in effect, compels the President to consult with the senator affected before the nomination is submitted.(48) In New Jersey, the practice of senatorial courtesy permits a single senator, who represents the county in which the nominee resides, to veto a proposed gubernatorial appointment, thereby...