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Part III Structure of State Government, 8 State Constitutional Distribution of Powers

From: The Law of American State Constitutions

Robert F. Williams

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 17 May 2021

This chapter presents a general discussion of state constitutional distribution or separation of powers. The federal Constitution does not mandate any particular arrangement of governmental powers in the states. By contrast to rights provisions, the federal Constitution's separation of powers doctrine has not been incorporated into the federal Constitution so as to apply to the states. For this reason federal separation of powers doctrines should be even less persuasive in state courts than federal constitutional rights interpretation. Many states' constitutions, unlike the federal Constitution, contain textual requirements of separation of powers and bans on dual office holding. Further, however, the states' constitutional distribution of powers arrangements differ a good deal from state to state. The chapter therefore describes the importance of a state-specific separation of powers analysis based on that state's specific arrangements. Examples are given where a state has a particularly strong governor or legislature. The chapter distinguishes between functional and formalist separation of powers analysis, and provides an example of state separation of powers approaches to the delegation of legislative authority.

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