The Separation of Legislative Powers in the Initiative Process

Abstract

This article recenters the initiative process as a power and considers the implications of a divided legislative branch through a frame of state separation of powers principles. Part II develops the state constitutional position of the initiative process, how its provisions are entrenched against legislative incursion by detailed constitutional text, and ways in which this position leaves the initiative power vulnerable on judicial, executive, and legislative fronts. Part III introduces three possible defenses for the initiative power: a fading set of federal constitutional rights, an ill-fitting lens of state constitutional rights, and a tentative principle of separation of powers within a divided state legislative branch. This part then turns to constitutional doctrine for models that might describe and defend the initiative power, drawing from bicameralism and plural executive powers in federal and state constitutional law. Part IV explores the problems a powers-based approach may help solve, with reference to recent state legislative efforts, and state court cases that converge on an examination of whether legislation affecting the initiative power facilitates or impairs that power. Part V concludes.