Legislators on Executive-Branch Boards Are Unconstitutional, Period

33 Pages Posted: 13 Sep 2019

See all articles by Douglas Laycock

Douglas Laycock

University of Virginia School of Law

Date Written: September 11, 2019

Abstract

The Virginia General Assembly has enacted increasingly frequent exceptions to its statute prohibiting legislators from serving on executive-branch boards. But these exceptions are clearly unconstitutional. Appointing legislators to executive-branch boards violates any meaningful conception of separation of powers. The only purpose is to intrude legislative influence into the daily workings of the executive branch.

Such appointments violate Virginia’s Separation of Powers Clause as interpreted by the Virginia Supreme Court. They even more clearly violate what I will call the Personal Separation Clause, which prohibits any person from exercising the powers of two branches of government at the same time. The federal courts and eleven state supreme courts — every court to consider the question except South Carolina — have held that legislators cannot simultaneously serve in the executive branch. The South Carolina precedent is irrelevant elsewhere, because the state has a unique constitutional system in which the legislature is allowed outsize influence on the other branches.

This article focuses on the particular case of Virginia and the boards of its public universities. But the principles developed apply to all executive-branch boards and to all the states except South Carolina.

Keywords: separation of powers, legislators, executive-branch boards, Virginia, Board of Visitors

Suggested Citation

Laycock, Douglas, Legislators on Executive-Branch Boards Are Unconstitutional, Period (September 11, 2019). William & Mary Bill of Rights Journal, Forthcoming; Virginia Public Law and Legal Theory Research Paper No. 2019-52. Available at SSRN: https://ssrn.com/abstract=3451980

Douglas Laycock (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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