Disregarding the separation of powers has real-life consequences

At first, these stories might seem unrelated. They arise in different areas of law and implicate different questions of social policy. One is about Medicare and government contracts, the next about criminal law, the last about immigration. But despite their surface differences, over time I came to realize that cases like these reflect the same underlying problem: a mixing of what are supposed to be separated powers in ways that undermine the rule of law and diminish liberty. In the first case, the legislature delegated its lawmaking powers to the executive — and the result was that lawmaking had become so easy and came so quickly that no one could keep up with all the new restrictions. In the second case, the judiciary rewrote the legislature’s statutes to make “better” policy, even though it meant sending a man to prison for breaking a law nowhere in the books or approved by the people’s representatives. In the third case, the executive assumed the judicial power “to say what the law is” and left a family without fair notice of its demands on them. It’s one thing to study the theory of the separation of powers. For me, it was another thing to witness how its disregard affects the lives of real people in real cases.

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