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EDITORIAL: Separation of powers gets its due

The separation of powers doctrine is finally regaining respect among members of the judiciary — both nationally and in Nevada.

Last week, two state Supreme Court justices argued in a minority opinion that a prosecutor violated the state constitution by simultaneously serving in the Legislature. The Nevada Constitution forbids anyone who exercises the powers of one branch of government from also exercising the powers of either of the other two branches.

The case in question involved a man accused of sexual assault who sought to overturn his conviction on the grounds that the prosecutor, state Sen. Melanie Scheible, D-Las Vegas, moonlights as a lawmaker. A majority of justices refused to vacate the conviction and avoided ruling on the constitutional issue. In dissent, however, Justices Abbi Silver and Kristina Pickering concluded that Ms. Scheible’s dual service was an impingement of the law.

Their public pronouncement has major significance.

For decades, both Democratic and Republican lawmakers have flouted the separation of powers provision while the high court deflected challenges, typically on technical grounds. But while the justices again avoided directly confronting the issue in the assault case, they are currently pondering another more wide-ranging challenge to lawmakers who hold other public sector jobs. With two justices on the record confirming that the separation of powers clause means what it says, it becomes trickier for the court to play four corners.

Meanwhile, a federal appeals court last week put the kibosh on a Securities and Exchange Commission scheme in which the agency claims vast powers to both prosecute and judge those in its sights.

The case involved a man accused of securities fraud, who was prevented from defending himself in federal court. Instead, he was forced before an administrative law judge under the aegis of the SEC itself. In essence, the agency acts as rule-maker, prosecutor, judge and jury. It’s a cozy arrangement that Congress allows many federal agencies — including the National Labor Relations Board — but it raises serious questions about the runaway administrative state and the separation of powers doctrine.

The 5th U.S. Circuit Court of Appeals agreed, ruling that the SEC was using legislative authority that Congress had unconstitutionally delegated to the executive branch.

The Founders recognized that the concentration of power in too few hands is a recipe for tyranny. By clearly defining the three branches of government and their functions, they acted to ensure the deconsolidation of power in an effort to safeguard personal liberties and guard against government abuses. The health of our democratic republic depends in part on a judicial system willing to aggressively enforce this vital constitutional principle.

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