Written by attorney Robert Walter Dapelo

Separation of Powers under New York State Law

As this Court has explained, The State Constitution provides for a distribution of powers among the three branches of government (see N.Y. Const., art. III, s. 1; art. IV, s. 1, art. VI). This distribution avoids excessive concentration of power in any one branch or in any one person. Where power is delegated to one person, the power is always guided and limited by standards. . . . Without such standards there is no government of law, but only government by men left to set their own standards, with resultant authoritarian possibilities. Rapp v. Carey, 44 N.Y.2d 157, 162 (1978). As Professor James McLellan has noted in his treatise on the United States Constitution, "Of all the theories of government that have been propounded to establish limited government, the doctrine of separation of powers has been the most influential and successful. It stands alongside that other great pillar of Western political thought--the concept of representative government--as the major support for constitutional government." James McLellan, Liberty, Order & Justice 327-328 (3d ed. 2000). The separation of governmental powers among different branches "is a necessary prerequisite to limited constitutional government because a concentration of political power is inherently dangerous and will sooner or later lead to the abuse of power and to oppressive government." McLellan at 328. Professor McLellan points out that the doctrine "is also closely associated with rule of law, and may be said to be an indispensable means for its attainment." McLellan at 328. In the context of the New York Constitution, "the separation of powers 'requires that the Legislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies." Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801, 821-822 (2003), quoting Bourquin v. Cuomo, 85 NY2d 781, 784 (1995). This "legislative power cannot be delegated--not to the people, not to administrative agencies, and not to committees of the legislature itself." Peter J. Galie, The New York State Constitution: A Reference Guide 77 (1991). Thus, "[w]here it would be practicable for the Legislature itself to set precise standards, the executive's flexibility is and should be quite limited." Rapp at 163. In this case the legislature not only can "set precise standards" but, according to this Court, is the branch of government to whom the "critical policy decision" of the definition of marriage for purposes of New York law belongs. Allowing the executive branch to create its own definition of marriage threatens to concentrate far more authority over social policy into the hands of a branch not intended to have that authority. If executive officials can decide to unilaterally assume any legislative function, the rule of law is weakened as the constitutional delegation of authority to the legislative branch is subordinated to the will of administrative officials.

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