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Separation of powers, delegation and a legality framework

It is one thing to be subordinate to the laws, and another [for the Executive] to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the Constitution, unites all power in the same hands.

Alexander Hamilton, Federalist No. 71, Federalist Papers (1788)


The fundamental principles of law have often been described in the German literature as limits to the enactment of temporary legislation.[1] Is this also the case of the principle of separation of powers?

If we read the United States Constitution, we will not find a ‘principle of separation of powers clause’: it is one of its many unwritten principles that supplement and transcend the meaning of individual constitutional clauses.[2] As Jack Balkin explains ‘it is a principle we derive ... from how the various institutions and structures outlined in the constitutional text relate to each other’.[3] It is also a principle to be inferred from history and context that ‘helps preserve political stability and keep the enterprise of governance going when people disagree strongly about what is just or unjust’.

The principle of separation of powers is not necessarily a constraint on both sunset clauses and experimental legislation. Instead, in the United States and in Germany, it has been argued that sunset clauses could be enacted to control the excessive powers of the executive. They are an instrument of legislative oversight.[4] This explains why this principle is analyzed in Part I of this book and serves as a ground to plant a legal framework for sunset clauses and experimental legislation.

Before presenting a legal framework for experimental legislation and sunset clauses, this chapter is introduced by an analysis of the principle of separation of powers and principle of legality. As far as experimental legislation is concerned, it will first be examined how the principle of separation of powers constrains the enactment of this instrument (3.3). Since experimental legislation requires clear legality boundaries, a legality framework for the enactment of this instrument will be provided (3.4). None of the three countries under analysis possesses one. However, imposing a statutory basis for the delegation of the power to enact experimental provisions is not sufficient to fulfil legality requirements. Such statutory basis must contain specific elements (3.4). This chapter offers a differentiated approach to legality in the sense that it first sketches the theoretical relationship between the principle of separation of powers and experimental legislation (3.3) and then attempts to solve potential intricacies by suggesting a concrete and complete framework, which is built on different doctrines of delegation (3.5) and illustrated by examples (3.6).

  • [1] See for example, Antonis Chanos, Moglichkeiten und Grenzen der Befris-tung parlamentarischer Gesetzgebung (Duncker and Humblot, 1999).
  • [2] Akhil Reed Amar, America’s Unwritten Constitution: The Precedents andPrinciples We Live By (Basic Books, 2012) 6.
  • [3] Jack M. Balkin, Living Originalism (Harvard University Press, 2011) 14.
  • [4] See also Katherine R. Williamson (ed.), Revisiting and Evaluating theCongressional Review Act (Nova Science Publishers, Inc., 2009).
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