Oklahoma’s senate has called for a national federalism task force. The senators wisely recognize the dangers of the federal government’s ever-expanding role in our lives. This move should not be undersold nor under-appreciated. America’s founders wisely divided power between the federal government and the states, knowing that the two would pull against each other and keep each other in check. Legislators in all 50 states should be working to keep that power properly balanced.

However, there is another division of power that the legislature often ignores, or even tries to break down: the separation of powers between the various branches of state government. The legislature is supposed to jealously guard their power from the executive and judicial branches. But far too often, it seems as though legislators believe they serve at the pleasure of the other branches, especially the administrative agencies. When bills come up for a committee vote, far too often debate begins and ends with whether the bill has the support of the agency it will affect.

This is a badly flawed view of the legislature’s duty. The legislature shouldn’t go out of its way to make life difficult for agencies, but it should keep a close watch on them. It should monitor how agencies use their power, and make sure that even small abuses are quickly wrung out of the system. Small abuses tend to grow when left unchecked. The relevant question should not be whether the agency favors a bill, but what the effect will be on ordinary Oklahomans, those who aren’t politically connected or influential.

James Madison, in advocating for the passage of the federal constitution noted that,

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.

In Oklahoma, legislators are far too ready to let unaccountable agencies, staffed by career bureaucrats, immune from either elections or term limits, dictate the kind of legislation that ought to pass.  

The administrative state, especially those overseeing occupational licensing (such boards are almost always composed of a majority of members with a conflicting interest in the regulated profession) ought to be viewed with a skeptical eye. Their power derives from both the legislative and executive branches. They sometimes perform quasi-judicial functions, in addition to rule-making and enforcement. This is exactly the type of power accumulation about which Madison warned.

The point isn’t that the separation of state powers is more important than the division of state and federal powers, though that was certainly true at the time of the founding. The federal government was thought to be one of enumerated powers, that could only act where the constitution gave it particular authority. Now it has become a leviathan that threatens to swallow the states whole. But state legislators have far more weight in matters of state power. If they jealously guard their prerogative, and work to do what is best for the state as a whole, rather than what is easier for the agencies, they could do a great deal of good for the state. 

Our national and state founders left us profoundly well-designed tools in our national and state constitutions. These tools must, nevertheless, be properly maintained and wisely applied. Even the sharpest tool can rust and dull if neglected. If we do not continue to hone federalism and the intra-state separation of powers, we risk letting them become mere words on pages. It would be tragic for them to lose all meaning because our best safeguard for them, elected legislators, stop zealously guarding their power as representatives of the people.

Mike Davis is Research Fellow at 1889 Institute. He can be reached at [email protected].

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.