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Legislative Process
Southern Illinois University School of Law
Schmitz, Suzanne J.

PART I – Separation of Powers and Checks and Balances (SOP & CAB)
I. Background
A. At Federal level the purpose was related to framers fear of gov’t power & tyranny so they sought structural means to limit gov’t power and thus built in a constitutional limit
ii. Framers thought tyranny was use of gov’t power by rulers over others for benefit of themselves and not for users of gov’t
iii. saw tyranny as taking away liberty.
iv. So framers suspicious of gov’t power (feared being reduced to slavery)
B. 1 method they agree to avoid tyranny was Montesquieu’s description of the British SOP
ii. avoid unhealthy accumulation of too much unchecked power into 1 hand
iii. SOP approach
a. Article I – Leg power to Congress
b. Article II – Executive Power to President
c. Article III – Judicial power to Superior court and such inferior courts as congress shall time to time deem necessary
C. But the framers had experience with state constitutions and SOP within those early on right after the Decl. of Independence.
ii. Some states had adopted a sort of SOP, so the framers had some experience.
iii. Problem was that they discovered the state versions did not work well. 1 branch was always trying to overreach at the state level (usually the legislature)
D. So the framers did not adopt that approach, instead they used an ad mix or mix approach
ii. Ad mix placed limits on pure definitional power of each branch and gave to each branch additional powers above and beyond their pure powers to protect from encroachment by another branch.
a. (i.e. appointment of judges, veto etc.)
iii. Some critics attacked this by saying it was not pure SOP
a. ex: are judges appointment by president & senate confirmation & president’s veto power – obviously there is overlap)
E. Madison answered these criticisms in the Federalist #47-51
ii. Said that limits on pure powers and ad mix approach was practically necessary to stop unhealthy accumulations of power and to achieve the very goals that SOP sets out.
iii. Said no one keeps totally separate
iv. Said purpose of some intermingling is to keep at a minimum the practical problem of encroachment of 1 branch into another
v. Said the very things that critics point to as pitfalls of SOP are essential to prevent what SOP is intended to prevent in the 1st place
vi. 2 general approaches to SOP according to Madison
a. Absolutists or Purists on SOP (opponents of American version of SOP)
b. Pragmatics on SOP )proponents of American version of SOP)

Complete SOP

American Version of SOP


Purists or Absolutists


Opponents of American version of SOP

Faithful or True SOP

Radical or Anti-SOP

vii. Madison says Purists have misapplied SOP and made an interpretation mistake b/c Eng. Constitutional analysis by Montesquieu has to mean as Madison says b/c the goal is to prevent whole power of 1 branch exercised by hands holding whole power of another branch.
II. 2 problems with SOP
A. Purists assume you can identify or define what is included in each sphere and what is not
B. Practical problem – parchment barriers not effected like in VA & PA so legislature is likely to encroach
ii. Leg power is hard to define precisely, also the power of the purse affects things
1. Argument against Va. & Pa. is fruit of Constitutional experiment is U.S. after the war
iii. Federalist #51
1. need interior structures in place (appointment power), control over emoluments (pay), veto power etc – all things purists say are evil
III. CAB actually preserves SOP by preventing tyranny
A. Limit pure power of 1 branch (leg purse for ex)
ii. can’t increase or decrease president’s salary or salary of fed judges
B. Gave branches additional powers above and beyond normal ones to protect encroachment by 1 branch
ii. Veto power
iii. advice and consent power by senate
iv. power to appoint judges instead of electing
C. Purists/Absolutists criticized Fed Con b/c it did not adopt pure SOP like the State Constitutions
ii. Madison defended against these critics and said that CAB are necessary to preserve SOP in the 1st place.
iii. But Madison’s defense in the Federalist can be argued that it is not accurate b/c it is not in the Con.
D. Morrison v. Olson(U.S. Supreme Court)

Purist Pragmatist
Absolutist Madisonian

ii. Independent counsel may be removed by attorney general
iii. Scalia (Dissent) paints it as criminalization, as political dispute between legislative branch by Democrats and executive branch by Republicans.
iv. Rehnquist (MAJ opinion) gives low key fact summary and Scalia re-characterizes.
a. Maybe Rehnquist wants to paint as executive hiding something and trying to get EPA to hide something and thus is encroaching upon legislature’s power to make sure laws are being carried out as they were intended
v. Scalia is a purist basically and Rehnquist is pragmatic.
vi. Statute was

ii. Background
a. IL Con of 1970 has own bill of rights. General assembly must approve amendment except for amendment re: legislature.
b. SOP under ILL Con – Art. II §1 – specific provision of Con.
1. more of purist approach
2. each branch has specific sphere of authority
a) Art. IV – leg power
b) Art. V – Exec
c) Art. VI – Judiciary
c. CAB in Ill Con – less than in Fed Con – Veto Art. IV §
1. Ill con, impeachment power Art. IV § 14 Ill Con
2. no grounds stated, appointment Art.V § 9 – more protected of exec power
d. Does executive have power over prosecution in IL? NO
1. Ill atty general has no power over states atty in IL
2. Ill tort reform act
iii. IL Supreme Court takes view like Scalia’s in Morrison & asks if the cap on non-economic damages was an intrusion or interference into inherent judicial power or unique judicial power.
iv. 1994 surprisingly saw no gridlock and so the Tort Reform Act was passed. But IL Supreme Court held whole act unconstitutional b/c 4 parts were unconstitutional & it was deemed that those parts were not severable.
a. (cap on non-economic damages, dr.-patient disclosure, changes in contribution, changing J&SL to SL)
b. Court said cap on non-economic damages was a legislative intrusion on unique judicial function so it was uncon, (court said basically legislature was trying to use remittitur which is a judicial function)
c. Court goes about determining whether cap was uncon in steps:
1. Look at tradition of power of remittitur (judicial)
2. Look at purpose of power exercised (in order to maintain control of jury trial)
3. Look at Function in case by case application is to help judiciary achieve justice in individual cases – a core judiciary function
d. Court then looks at Dr.-patient disclosure in a 2 part analysis:
1. Does it impair judicial function
2. Does it contradict any procedure like discovery
e. Court asks if this is an intrusion of court’s function and uses history and procedural analysis.
f. So court uses pure approach. Court looks at:
1. traditional exercise of power
2. purpose of power
how exercise of that power fits in with function of