Separation of Powers:
The Three Branches of
Government
A Justice Teaching Case Study
TM
Bush v. Schiavo, 885 So. 2d
321 (Fla. 2004):
A discussion of the separation of powers
under the Florida Constitution
TM
What are the three branches
of government in Florida?
The Executive Branch
TM
The Legislative Branch
TM
The Judicial Branch
TM
Where are these branches
listed?
The Florida Constitution
TM
The Constitution delineates the
powers of each branch of
government.
TM
The Three Branches of
Government

The Legislative Branch creates the laws
TM
The Three Branches of
Government

The Judicial Branch interprets the laws
TM
The Three Branches of
Government

The Executive Branch executes the laws
TM
The Three Branches of
Government

Who else is part of the executive branch?
Law Enforcement
Executive Agencies
TM
There are also three branches
of federal government listed in
the United States Constitution.
The Legislative Branch

The Legislative Branch creates the laws
TM
The Judicial Branch

The Judicial Branch interprets the laws
TM
The Executive Branch

The Executive Branch executes the laws
TM
The Executive Branch

Who else is part of the executive branch?
Federal
Law Enforcement
Executive Agencies
TM
Can one branch of
government perform the duties
of another branch?
ANSWER: NO
Why not?
TM
The Florida Constitution
provides:

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.
TM
This provision is known as
the “separation of powers”
clause.
Does the United States
Constitution have an express
separation of powers clause?
TM
Answer: No
However, the United States Constitution is
structured so that no one branch of
government is vested with all of the
power. Each branch is limited (or
checked) by the other branches. Thus,
federal government operates as a system
of checks and balances.
TM
Checks on the Legislature


The President can veto a law passed by Congress
The Supreme Court can strike a law passed by
Congress as unconstitutional
TM
Checks on the Executive


Congress can impeach the President
The Supreme Court defines the limits of the
President’s power
TM
Checks on the Judiciary


The President appoints members of the Supreme
Court…
With the advice and consent of the Senate
TM
How can we find out what
the separation of powers
clause in the Florida
Constitution means?
TM
The Separation of Powers
It is the duty of the judiciary to interpret
the law.
 The Florida Constitution is a body of law.
 We look to judicial decisions to determine
what the separation of powers clause
means.

TM
The Separation of Powers

The clause covers two specific
prohibitions:


No branch may encroach upon (invade) the
powers of another.
No branch may delegate (assign) to another
branch its constitutional powers.
Chiles v. Children A, B, C, D, E, and F, 589 So.
2d 260 (Fla. 1991)
TM
The Separation of Powers

If the conduct by one branch falls
under either prohibition, that conduct
is unconstitutional because it violates
the separation of powers clause in
the Florida Constitution.
TM
Why is a Separation of Powers
Necessary?

According to the Florida Supreme Court, the
drafters of the Florida Constitution “had
witnessed the breaking down by unrestrained
legislation all the security of property derived
from contract . . . the overturning of solemn
decisions of the Courts of the last resort, by,
under the pretence of remedial acts, enacting for
one or the other party litigants such provisions as
would dictate to the judiciary their decision…
TM
Why is a Separation of Powers
Necessary?

. . . .and leaving everything which should be
expounded by the judiciary to the variable and
ever-changing mind of the popular branch of
the Government.”
Trustees Internal Improvement Fund v. Bailey, 10
Fla. 238 (1863)
TM
Today, you will be a justice
on the Florida Supreme
Court and decide a real case
involving the separation of
powers clause.
TM
But first –
You should examine cases to decide
how the Florida judiciary has
analyzed the separation of powers
clause in prior situations.
TM
Chiles v. Children A, B, C, D, E, and F, 589
So. 2d 260 (Fla. 1991)


The Legislature passed a law that permitted the
Governor to reduce state agency budgets to
prevent a budget deficit. When a revenue shortfall
occurred, the Governor reduced the budgets of
various state agencies.
The Florida Supreme Court held that the statute
violated the separation of powers because only the
Legislature may allocate (distribute), or reduce the
allocation of, state funds.
TM
Chiles v. Children A, B, C, D, E, and F, 589
So. 2d 260 (Fla. 1991)

The Court concluded that it is the responsibility of
the Legislature to establish the priorities of the
State of Florida through the allocation of funds.
When the power to change those priorities is given
to another branch of government (here, the
executive branch) without any guidelines to
implement Legislative intent, the duty of the
Legislature to establish priorities is improperly
nullified.
TM
B.H. v. State, 645 So. 2d 987 (Fla. 1998)


A statute made it a crime to escape from a juvenile
commitment facility that is of “restrictiveness level
VI or above.” The statute provided that the
different restrictiveness levels would be established
by the Department of Health and Rehabilitative
Services (HRS), an executive branch agency.
The Florida Supreme Court held that the statute
violated the separation of powers clause because
the authority to determine what the law is, and to
define the elements of a crime, belongs exclusively
to the Legislature.
TM
B.H. v. State, 645 So. 2d 987 (Fla.
1998)

Here, the Legislature unconstitutionally delegated
the power to define a crime to an executive
agency by allowing HRS unlimited discretion to
define the various levels of restrictiveness with
regard to juvenile commitment facilities.
TM
State v. Cotton, 769 So. 2d 345 (Fla. 2000)


The Prison Releasee Reoffender Punishment Act
authorized the enhanced sentencing of criminal
defendants who qualify as reoffenders. The Act
gave prosecutors the authority to decide whether
to seek sentencing under the Act.
A criminal defendant contended that the Act
violated the separation of powers clause because it
improperly granted prosecutors (members of the
executive branch) discretion in sentencing and
allegedly encroached on the power of the judiciary
to sentence defendants.
TM
State v. Cotton, 769 So. 2d 345 (Fla. 2000)


The Florida Supreme Court held that the Act was
constitutional because the Legislature can give
prosecutors the discretion whether to pursue—or
not pursue—the enhanced penalties in the Act, and
the exercise of such discretion by prosecutors is
generally not subject to review by the judiciary.
The Court also noted that the Act only imposes a
mandatory minimum sentence. If the defendant is
eligible for a harsher sentence under the law,
courts still have the discretion to impose the
harsher sentence. Thus, the Act did not encroach
on the sentencing power of the judiciary.
TM
Marine Industries Assoc. v. Fla. Dep’t of
Envir. Protection, 672 So. 2d 878 (Fla. 4th
DCA 1996)


Under the Florida Manatee Sanctuary Act, the
Legislature designated specific geographic areas
and authorized the Department of Environmental
Protection (DEP) to regulate the construction and
expansion of marine facilities and the operation of
motorboats in those areas.
The Marine Industries Association contended that
the statute allowing for DEP regulation in one of
those areas was an unconstitutional delegation of
legislative authority to the executive branch.
TM
Marine Industries Assoc. v. Fla. Dep’t of
Envir. Protection, 672 So. 2d 878 (Fla. 4th
DCA 1996)

The Fourth District Court of Appeal held that no
separation of powers violation occurred. The
district court explained that although minimum
standards must be established by the Legislature to
guide an administrative agency in implementing
legislative intent, “if the subject matter requires the
expertise and flexibility of the agency to deal with
complex and fluid conditions, the legislature will not
be required to draft more detailed or specific
legislation.”
TM
Marine Industries Assoc. v. Fla. Dep’t of
Envir. Protection, 672 So. 2d 878 (Fla. 4th
DCA 1996)

The district court then noted that DEP had been
“charged with enacting rules to protect a migratory
endangered species which inhabits waters also
used by the public. By the very nature of the
problem and the mobility of the manatee,
articulating exact standards would be difficult at
best and probably subject to change on a yearly
basis as the manatees' habitat changes.”
TM
Bush v. Schiavo


Now for the case that you will decide.
Read the case materials provided and
circle or highlight all important facts.
TM
Florida’s Court Structure
Supreme
Court
7 Judges
District Courts of Appeal
62 Judges
Circuit Courts
599 Judges
County Courts
322 Judges
TM
Bush v. Schiavo





What are the facts of the case?
How did the trial court rule?
How did the district court of appeal rule?
How are the facts similar to Chiles, B.H.,
Cotton, and Marine Industries Association?
How are they different?
TM
Bush v. Schiavo
 The
Question Presented: Does
“Terri’s Law” violate the separation
of powers clause of the Florida
Constitution?
TM
Supreme Court Conference




Individually answer the question.
If you vote yes, you are ruling in favor of
Michael Schiavo.
If you vote no, you are ruling in favor of
Governor Bush.
Give reasons for the group decision and
explain how the decision is supported by
the cases previously discussed.
TM
How did the Florida Supreme
Court Actually Rule?
TM
Bush v. Schiavo
 By
a unanimous vote, the Court
held that “Terri’s Law” violated
the separation of powers clause
of the Florida Constitution.
TM
Bush v. Schiavo

The Court held that Terri’s law gave the
Governor the power to reverse a final
judgment that had properly been entered by
a trial court. By authorizing the Governor to
do so, “Terri’s Law” constituted an
unconstitutional encroachment on the power
granted to the judiciary under the Florida
Constitution.
TM
Bush v. Schiavo

The Court also held that “Terri’s Law”
improperly delegated legislative power to the
Governor. The Court noted that the
Legislature failed to provide any standards
by which the Governor should determine
when to issue a stay, or how long a stay
should remain in effect. The law also gave
the Governor absolute discretion to
determine when to lift a stay.
TM