By A. Scott Chinn, Faegre Drinker Biddle & Reath LLP
It seems beyond serious question that over the past decade disputes between and among the branches of our tripartite system of government have increased in number and intensity. Likely, there are several different types of motivations behind such disputes ranging from political to ideological to philosophical. While separation-of-powers issues may seem academic and esoteric to many, recent contexts for these disputes make clear that the implications are very practical.
As a starting point, most would be familiar with what has become a staple dispute over the past three presidencies: a newly inaugurated president signs a host of executive orders not only to undo his predecessor’s opposite actions, but also in ways that arguably stretch the limit of executive power in apparent recognition that bi-partisan legislation has become endangered if not extinct in Congress. Lawsuits attacking that executive action as beyond the power of the president or as a usurpation of legislative power ensue. Think here about things like border wall funding appropriations disputes, deferred action for childhood arrivals (DACA), and climate change. On that last issue, by way of example, twelve states (Indiana among them) recently sued the Biden Administration over Executive Order 13990 expanding regulatory reach into defining the social costs of greenhouse gases and other emissions.
Beyond the political and ideological “crises” that have led to separation-of-powers disputes at the national level, the COVID-19 pandemic has provided the environment for such disagreements at the state level. Perhaps the most obvious example is the current debate at the Indiana Statehouse about whether the governor’s powers to declare and maintain emergencies should be curbed in the wake of the scores of executive orders Governor Holcomb has issued during the pandemic. Many bills and resolutions have been offered during the 2021 session of the Indiana General Assembly that push back on what some see as the unchecked powers of the governor to regulate and extend the duration of the orders without legislative input. One legislator cited the public’s “negative response to order, after order, after order, for which we could do nothing and our hands were tied.”
Various proposals under legislative consideration would establish mechanisms to require the governor to call legislators into a special session during a long-lasting emergency or provide authority to legislative leadership to take such action. Ironically, some of those proposed measures designed to balance executive and legislative power may themselves violate separation-of-powers principles according to scholars of the Indiana Constitution, like former Indiana Supreme Court Justice Frank Sullivan. In Indiana, resolving separation-of-powers disputes largely revolves around an understanding of Article III, Section 1 of the Indiana Constitution (known as the “distribution-of-powers clause”), which provides: “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.” Under Article IV, Section 9, only the Governor may call special sessions of the General Assembly.
And while we wait to see what new landscape exists at the conclusion of the legislative session regarding the power structure of emergency management, there are live lawsuits in state and federal courts in Indiana challenging the power of both the governor and local public health officials to regulate by executive order activities designed to mitigate the effects of the COVID-19 pandemic. In September of last year, a group of bar owners sued the City of Indianapolis and the Marion County Public Health Department in federal court alleging, among other things, that local public health orders addressing the COVID-19 pandemic violated separation of powers and the Indiana home rule statute. The federal district judge denied the plaintiffs a preliminary injunction and the case is still pending. (Bar Indy LLC et al v. City of Indianapolis et al., No. 1:20-cv-02482-JMS-DML.) In January of this year, a Brown County judge ruled that Governor Holcomb’s executive orders clearly did not preempt local health authorities from imposing more stringent attendance restrictions at school sporting events than his order would otherwise allow. (Stanley v. Brown County School District, No. 07C01-2101-PL-000005.) And just this month, a new lawsuit was filed in Allen County challenging state and local restrictions on a catering business as unconstitutional, including an assertion that the Governor’s executive orders are violative of the distribution of powers provision of the Indiana Constitution in Article III, Section 1. (Ceruti Catering, Inc. v. Allen County Health Department and Holcomb, No. 02D03-2103-PL-000101.)
Finally, it is important to note that separation-of-powers issues are not confined to the context of crisis. There have been many reported separation-of-powers cases involving state government officials over the years, including several regarding encroachment on the judiciary as well. And such cases in some circumstances apply at the local government level. Just this month, the Lake Superior Court – in the extraordinary posture of sitting as an en banc panel of seven judges – unanimously found that the East Chicago Common Council violated the statutory separation-of-powers provision applicable to cities in Ind. Code § 36-4-4-2 by passing an ordinance that effectively took from the mayor, as city executive, the power to determine firefighters’ work schedules. (Copeland v. Common Council of the City of East Chicago, No. 45D11-1912-MI-01003.)