Article III, Section 3 of the California Constitution declares that the powers of state government are legislative, executive and judicial.  Section 3 then explicitly provides that “Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”  This is what the Constitution says, but is it reality when it comes to agencies? 

The Constitution refers to state agencies in various places, but doesn’t specifically locate state agencies in any particular branch of government.   In describing the position of Governor, for example, the Constitution expressly vests the supreme executive power of the state in the Governor, but does not expressly provide that the Governor has authority over state agencies – it only provides that the Governor may require agencies and their employees to furnish information “relating to their duties”.   Article V, Sections 1 & 4.  Moreover, the Governor’s authority to asisgn and reorganize functions among agencies is dependent upon the legislature conferring authority “by statute”.  Article V, Section 6.

As I’ve mentioned on other occasions, state agencies exercise to some degree all three powers.  When enforcing state statutes, agencies are exercising executive power; when conducting administrative hearings, agencies are exercising judicial power; and when adopting rules and regulations, agencies are exercising legislative (policy making) power.  Does the exercise of legislative power violate the separation of powers mandated by Article III, Section 3?

One California legislator thinks so.  Earlier this month, Assemblymember Tim Donnelly introduced ACA 1 – the Write the Laws Act.  He proposes to revise California’s Constitution to required administrative agencies to submit all regulations to the legislature for approval.  This proposal borrows from a bill, S. 3361, that was introduced in the U.S. Congress last June.

The idea of separation of powers is usually attributed to Charles-Louis de Secondat, baron de La Brède et de Montesquieu who advanced the idea in his book, De l’esprit des Lois (The Spirit of the Laws).  In Chapter XI, he wrote:

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the judiciary power be not separated from the legislative and executive.  Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator.  Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

Book XI, Chapter 6 (Thomas Nugent, translator).  James Madison picked up this theme in The Federalist No. 51 – The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments (Feb. 6, 1788).