Nondelegation doctrine: States with APAs or constitutions that contain separation of powers provisions (2020)

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Disclaimer:
The research presented on this page was completed in 2020. It has not been regularly updated since its completion. This page is likely outdated and may be incomplete.
This Ballotpedia article is in need of updates. Please email us if you would like to suggest a revision. If you would like to help our coverage grow, consider donating to Ballotpedia.
This page contains information from a Ballotpedia survey about the nondelegation doctrine, one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Ballotpedia reviewed all 50 state constitutions and administrative procedures acts (APAs) to determine which states had APAs or constitutions that contain separation of powers provisions as of 2020.
Looking at whether states have separation of powers provisions in their government documents provides insight into how the nondelegation doctrine works at the state level. Limiting the delegation of one branch's authority to another—the nondelegation doctrine—is a constitutional principle key to understanding one of the main areas of debate about the nature and scope of the administrative state.
Some states cite their separation of powers provisions as the statutory source of their respective nondelegation doctrines. For example, on October 2, 2020, the Michigan Supreme Court ruled against Governor Gretchen Whitmer's extension of COVID-19-related executive orders, holding that the orders violated the nondelegation doctrine implied by the state constitution's separation of powers provision.[1]
According to the Ballotpedia survey, 40 state constitutions contained separation of powers provisions as of October 2020. There were no state APAs that contained separation of powers provisions.
You can find the results of another Ballotpedia survey, which recorded explicit prohibitions on the delegation of legislative power to administrative agencies, here.
This page features the following sections:
- Background and methodology
- Summary of key findings
- Table showing states that had APAs or constitutions that contain separation of powers provisions
- Text of state constitutions with separation of powers provisions
Background and methodology
Background
For this survey, Ballotpedia examined whether states have APAs or constitutions that contain separation of powers provisions. Separation of powers provisions divide power among the branches of government. These provisions may support state-level nondelegation doctrines that prohibit delegation of legislative authority to administrative agencies. The nondelegation doctrine holds that lawmakers cannot delegate legislative authority to administrative agencies or to private entities.
Methodology
Ballotpedia examined all 50 state constitutions and Administrative Procedure Acts (APAs) to see whether states have APAs or constitutions that contain separation of powers provisions.
Administrative Procedure Acts (APAs) govern the procedures state administrative agencies must follow to issue regulations and adjudicate disputes. Many state APAs are modeled on the federal APA.
Other state laws might provide for the separation of powers among the branches of state governments, but those are beyond the scope of this survey.
To see the specific legal provisions Ballotpedia used to categorize each state, click here.
Summary of findings
Ballotpedia's survey of state constitutions and APAs produced the following key takeaways (as of October 2020):
- 40 states had constitutions that contain separation of powers provisions.
- 10 states had constitutions that did not contain separation of powers provisions.
Results: States that had APAs or constitutions that contain separation of powers provisions
The table below includes each state in alphabetical order and indicates those with specific provisions in their constitutions or APAs that contained separation of powers provisions.
means that the state APA or constitution contained a separation of powers provision
means that the state APA or constitution did not contain a separation of powers provision
Other state laws that might have contained separation of powers provisions are beyond the scope of this survey.
State | Constitutions or APAs with separation of powers provisions |
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Alaska | ![]() |
Arizona | ![]() |
Arkansas | ![]() |
California | ![]() |
Colorado | ![]() |
Connecticut | ![]() |
Delaware | ![]() |
Florida | ![]() |
Georgia | ![]() |
Hawaii | ![]() |
Idaho | ![]() |
Illinois | ![]() |
Indiana | ![]() |
Iowa | ![]() |
Kansas | ![]() |
Kentucky | ![]() |
Louisiana | ![]() |
Maine | ![]() |
Maryland | ![]() |
Massachusetts | ![]() |
Michigan | ![]() |
Minnesota | ![]() |
Mississippi | ![]() |
Missouri | ![]() |
Montana | ![]() |
Nebraska | ![]() |
Nevada | ![]() |
New Hampshire | ![]() |
New Jersey | ![]() |
New Mexico | ![]() |
New York | ![]() |
North Carolina | ![]() |
North Dakota | ![]() |
Ohio | ![]() |
Oklahoma | ![]() |
Oregon | ![]() |
Pennsylvania | ![]() |
Rhode Island | ![]() |
South Carolina | ![]() |
South Dakota | ![]() |
Tennessee | ![]() |
Texas | ![]() |
Utah | ![]() |
Vermont | ![]() |
Virginia | ![]() |
Washington | ![]() |
West Virginia | ![]() |
Wisconsin | ![]() |
Wyoming | ![]() |
Text of state constitutions with separation of powers provisions
This section features the text of separation of powers provisions in state constitutions.
Separation of powers provisions divide power among the branches of government. These provisions may support state-level nondelegation doctrines that prohibit delegation of legislative authority to administrative agencies.
The 40 states listed below had separation of powers or vesting clauses in their state constitutions. Alaska, Delaware, Hawaii, Kansas, New York, North Dakota, Ohio, Pennsylvania, Washington, and Wisconsin did not have constitutions with specific separation of powers clauses.
Alabama
- See also: Alabama Constitution and Alabama Administrative Procedure Act
Article III of the Alabama Constitution is a separation of powers provision:
(a) The powers of the government of the State of Alabama are legislative, executive, and judicial.
(c) To the end that the government of the State of Alabama may be a government of laws and not of individuals, and except as expressly directed or permitted in this constitution, the legislative branch may not exercise the executive or judicial power, the executive branch may not exercise the legislative or judicial power, and the judicial branch may not exercise the legislative or executive power.[2] |
Arizona
- See also: Arizona Constitution and Arizona Administrative Procedure Act
Article III, Section 1 of the Arizona Constitution is a separation of powers provision:
The powers of the government of the state of Arizona shall be divided into three separate departments, the legislative, the executive, and the judicial; and, except as provided in this constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.[3] |
Arkansas
- See also: Arkansas Constitution and Arkansas Administrative Procedure Act
Article IV, Section 2 of the Arkansas Constitution is a separation of powers provision:
No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.[4] |
California
Article III, Section 3 of the California Constitution is a separation of powers provision:
The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.[5] |
Colorado
- See also: Colorado Constitution and Colorado Administrative Procedure Act
Article III of the Colorado Constitution is a separation of powers provision:
The powers of the government of this state are divided into three distinct departments,the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.[6] |
Connecticut
Article II of the Connecticut Constitution is a separation of powers provision:
The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.[7] |
Florida
- See also: Florida Constitution and Florida Administrative Procedure Act
Article II, Section 3 of the Florida Constitution is a separation of powers provision:
Branches of government.—The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.[8] |
Georgia
- See also: Georgia Constitution and Georgia Administrative Procedure Act
Article I, Section 2, Paragraph III of the Georgia Constitution is a separation of powers provision:
The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.[9] |
Idaho
- See also: Idaho Constitution and Idaho Administrative Procedure Act
Article II, Section 1 of the Idaho Constitution is a separation of powers provision:
The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.[10] |
Illinois
- See also: Illinois Constitution and Illinois Administrative Procedure Act
Article II, Section 1 of the Illinois Constitution is a separation of powers provision:
The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.[11] |
Indiana
- See also: Indiana Constitution and Indiana Administrative Procedure Act
Article III, Section 1 of the Indiana Constitution is a separation of powers provision:
The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.[12] |
Iowa
- See also: Iowa Constitution and Iowa Administrative Procedure Act
Article III, Section 1 of the Iowa Constitution is a separation of powers provision:
The powers of the government of Iowa shall be divided into three separate departments--the legislative, the executive, and the judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.[13] |
Kentucky
- See also: Kentucky Constitution and Kentucky Administrative Procedure Act
The Distribution of the Powers of Government section of the Kentucky Constitution is a separation of powers provision:
The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.[14] |
No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.[14] |
Louisiana
- See also: Louisiana Constitution and Louisiana Administrative Procedure Act
Article II, Section 2 of the Louisiana Constitution is a separation of powers provision:
Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.[15] |
Maine
- See also: Maine Constitution and Maine Administrative Procedure Act
Article III of the Maine Constitution is a separation of powers provision:
The powers of this government shall be divided into 3 distinct departments, the legislative, executive and judicial.
|
Maryland
- See also: Maryland Constitution and Maryland Administrative Procedure Act
Article 8 of the Declaration of Rights in the Maryland Constitution is a separation of powers provision:
That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.[17] |
Massachusetts
Articles XX and XXX of Part the First of the Massachusetts Constitution contain a separation of powers provision:
XX: The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.
|
Michigan
- See also: Michigan Constitution and Michigan Administrative Procedure Act
Article III, Section 2 of the Michigan Constitution is a separation of powers provision:
The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.[19] |
Minnesota
- See also: Minnesota Constitution and Minnesota Administrative Procedure Act
Article III, Section 1 of the Minnesota Constitution is a separation of powers provision:
The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.[20] |
Mississippi
Article 1 of the Mississippi Constitution is a separation of powers provision:
The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.
|
Missouri
Article II, Section 1 of the Missouri Constitution is a separation of powers provision:
The powers of government shall be divided into three distinct departments—the legislative, executive and judicial—each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.[22] |
Montana
- See also: Montana Constitution and Montana Administrative Procedure Act
Article III, Section 1 of the Montana Constitution is a separation of powers provision:
The power of the government of this state is divided into three distinct branches--legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.[23] |
Nebraska
- See also: Nebraska Constitution and Nebraska Administrative Procedure Act
Article II of the Nebraska Constitution is a separation of powers provision:
The powers of the government of this state are divided into three distinct departments, the legislative, executive, and judicial, and no person or collection of persons being one of these departments shall exercise any power properly belonging to either of the others except as expressly directed or permitted in this Constitution.[24] |
Nevada
- See also: Nevada Constitution and Nevada Administrative Procedure Act
Article 3, Section 1 of the Nevada Constitution contains a separation of powers provision:
1. The powers of the Government of the State of Nevada shall be divided into three separate departments,—the Legislative,—the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution.
|
New Hampshire
Article 37 of Part First of the New Hampshire Constitution is a separation of powers provision:
In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.[26] |
New Jersey
Article III of the New Jersey Constitution is a separation of powers provision:
The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.[27] |
New Mexico
Article III of the New Mexico Constitution contains a separation of powers provision:
The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted. Nothing in this section, or elsewhere in this constitution, shall prevent the legislature from establishing, by statute, a body with statewide jurisdiction other than the courts of this state for the determination of rights and liabilities between persons when those rights and liabilities arise from transactions or occurrences involving personal injury sustained in the course of employment by an employee. The statute shall provide for the type and organization of the body, the mode of appointment or election of its members and such other matters as the legislature may deem necessary or proper.[28] |
North Carolina
Article I, Section 6 of the North Carolina Constitution is a separation of powers provision:
The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.[29] |
Oklahoma
- See also: Oklahoma Constitution and Oklahoma Administrative Procedure Act
Article IV of the Oklahoma Constitution is a separation of powers provision:
The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.[30] |
Oregon
- See also: Oregon Constitution and Oregon Administrative Procedure Act
Article III, Section 1 of the Oregon Constitution is a separation of powers provision:
The powers of the Government shall be divided into three separate branches, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these branches, shall exercise any of the functions of another, except as in this Constitution expressly provided.[31] |
Rhode Island
Article V of the Rhode Island Constitution is a separation of powers provision:
The powers of the government shall be distributed into three separate and distinct departments: the legislative, executive and judicial.[32] |
South Carolina
Article I, Section 8 of the South Carolina Constitution is a separation of powers provision:
In the government of this State, the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.[33] |
South Dakota
Article II of the South Dakota Constitution is a separation of powers provision:
The powers of the government of the state are divided into three distinct departments, the legislative, executive and judicial; and the powers and duties of each are prescribed by this Constitution.[34] |
Tennessee
- See also: Tennessee Constitution and Tennessee Administrative Procedure Act
Article II, Sections 1 and 2 of the Tennessee Constitution contain separation of powers provisions:
1: The powers of the government shall be divided into three distinct departments: legislative, executive, and judicial.
|
Texas
- See also: Texas Constitution and Texas Administrative Procedure Act
Article 2 of the Texas Constitution is a separation of powers provision:
The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.[36] |
Utah
- See also: Utah Constitution and Utah Administrative Procedure Act
Article V of the Utah Constitution is a separation of powers provision:
The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.[37] |
Vermont
- See also: Vermont Constitution and Vermont Administrative Procedure Act
Section 5 of the Delegation and Distribution of Powers in the Vermont Constitution is a separation of powers provision:
The Legislative, Executive, and Judiciary departments, shall be separate and distinct, so that neither exercise the powers properly belonging to the others.[38] |
Virginia
- See also: Virginia Constitution and Virginia Administrative Procedure Act
Article III of the Virginia Constitution is a separation of powers provision:
The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time; provided, however, administrative agencies may be created by the General Assembly with such authority and duties as the General Assembly may prescribe. Provisions may be made for judicial review of any finding, order, or judgment of such administrative agencies.[39] |
West Virginia
Article V of the West Virginia Constitution is a separation of powers provision:
The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature.[40] |
Wyoming
Article II of the Wyoming Constitution is a separation of powers provision:
The powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.[41] |
See also
Footnotes
- ↑ Michigan Supreme Court, "Midwest Institute of Health, PLLC v. Governor," October 2, 2020
- ↑ Alabama State Legislature, "Alabama Constitution," accessed September 23, 2019
- ↑ Arizona State Legislature, "Arizona Constitution," accessed March 26, 2014
- ↑ Text of Arkansas Constitution, Article 4, Section 2
- ↑ California Legislature, "California Constitution, Article III," accessed January 9, 2020
- ↑ Lexis Nexis, "Colorado Constitution," accessed March 26, 2014
- ↑ Connecticut State Library, "Connecticut Constitution," accessed March 26, 2014
- ↑ Florida Senate, "Constitution of the State of Florida," accessed January 9, 2020
- ↑ Georgia State Senate, "Georgia Constitution," accessed June 27, 2023
- ↑ Idaho State Legislature, "Idaho Constitution," accessed March 28, 2014
- ↑ Illinois General Assembly, "Illinois Constitution," accessed March 28, 2014
- ↑ Indiana.gov, "Indiana Constitution," accessed March 30, 2014
- ↑ Iowa.gov, "Iowa Constitution," accessed March 28, 2014
- ↑ 14.0 14.1 Kentucky Legislature, "Kentucky Constitution," accessed March 28, 2014
- ↑ Louisiana State Senate, "Louisiana Constitution," accessed March 28, 2014
- ↑ Maine.gov, "Constitution of the State of Maine," accessed March 28, 2014
- ↑ Maryland.gov, "Constitution of Maryland," accessed March 28, 2014
- ↑ Massachusetts State Legislature, "Constitution of the Commonwealth of Massachusetts," accessed March 28, 2014
- ↑ Michigan State Legislature, "Michigan Constitution," accessed March 28, 2014
- ↑ Minnesota State Legislature, "Constitution of the State of Minnesota," accessed March 28, 2014
- ↑ Mississippi SOS, "Mississippi Constitution" (HTML), accessed March 28, 2014
- ↑ Missouri General Assembly, "Missouri Constitution," accessed March 30, 2014
- ↑ Montana Judicial Branch, "Montana Constitution," accessed March 30, 2014
- ↑ Nebraska State Legislature, "Nebraska Constitution," accessed March 30, 2014
- ↑ Nevada State Legislature, "Nevada Constitution," accessed March 30, 2014
- ↑ NH.gov, "New Hampshire State Constitution," accessed March 30, 2014
- ↑ New Jersey State Legislature, "New Jersey State Constitution," accessed March 30, 2014
- ↑ FindLaw, "New Mexico Constitution Art. III, § 1. Separation of powers," accessed September 24, 2019
- ↑ North Carolina Legislature, "North Carolina State Constitution," accessed September 24, 2019
- ↑ Oklahoma Supreme Court, "Oklahoma Constitution, Section: Article 4 section 1," accessed September 24, 2019
- ↑ Oregon State Legislature, "Constitution of Oregon," accessed March 30, 2014
- ↑ State of Rhode Island General Assembly, "Constitution of the State of Rhode Island and Providence Plantations," accessed September 25, 2019
- ↑ South Carolina State House, "Article I: Declaration of Rights," accessed September 25, 2019
- ↑ South Dakota Legislature, "Article II," accessed September 25, 2019
- ↑ State of Tennessee, "Tennessee Constitution," September 25, 2019
- ↑ Texas Constitution and Statutes, "Texas Constitution," accessed March 30, 2014
- ↑ Utah.gov, "Utah Constitution," accessed March 30, 2014
- ↑ Vermont State Legislature, "Constitution of Vermont," accessed March 30, 2014
- ↑ Virginia's Legislative Information System, "Constitution of Virginia," accessed March 30, 2014
- ↑ West Virginia Legislature, "West Virginia Constitution," accessed March 30, 2014
- ↑ Wyoming State Legislature, "Wyoming Constitution," accessed March 30, 2014