Can’t Touch This …

November 7, 2013

Inside Insight

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ariail separation of powersThe Power-Trip Parade

By Ashley Landess

James Madison wrote in the Federalist Papers that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

The separation of powers doctrine seems clear: The powers of government should be divided so that no one branch has all power and so that the branches serve as checks and balances on one another. The legislative branch makes the laws; the executive branch executes and enforces them; and the judicial branch interprets them. Pretty simple stuff for most Americans – except those who serve in public office in South Carolina.

In our state, public officials frequently claim that separation of powers only means separation of them from the powers of the other branches. Each branch might serve the intended functions (for the most part) with regard to governing citizens, but when it comes to how they operate, they are entitled to govern themselves. Also, public officials ignore state laws and argue that they are entitled to make their own rules, even if those rules conflict with the law.

We’ve heard that argument over and over from legislative leaders, who claim their rules trump laws on everything from recording their votes publicly to whether they are allowed to police each other in private. The S.C. Supreme Court recently came under scrutiny because the court has often failed to adhere to a state law requiring that their decisions be rendered 60 days from the end of the term after hearing a case, and the argument was once again made that the court has the power to make its own rules and those apply to the operation of the court – regardless of state law. And state agencies routinely ignore the S.C. Freedom of Information Act by arguing they aren’t really public entities.

The problem with all of this is that the operation of the bodies is not always separate and apart from the rights of the people. Lawmakers can certainly govern themselves when it comes to granting leave for the day or managing an internal dispute, as can the other branches. But the idea that the members of the branches themselves are separate from checks and balances is not the same thing as the powers being separate. Simply put, the Legislature is not the enforcement branch and should therefore have no investigative powers, nor should its leaders get to interpret the laws as unconstitutional and therefore unnecessary for them to follow. And the other branches do not get to make the laws either with regard to themselves or the rest of us.

If a state law is archaic, the Legislature should repeal it. If a law is unconstitutional, then it should be challenged before the court. But public officials do not exist in their own governance world separate from the one by which the rest of us are governed. Each branch should make its own rules as they apply only to the internal operations, but all branches are subject to checks and balances of the others for the protection of citizens’ right to ultimately control our own government. Freedom is impossible when those in charge get to make their own rules independent of the people whom they serve. That’s why the Founders were so adamant about forming a republic.

Makes perfect sense when you think about it.