4. SEPARATION OF POWERS National and State Governments in the United States are each organized into three departments. The theory of separation of powers is formally announced in forty State Constitutions. In the remaining eight State Constitutions and in the Constitution of the United States the same constitutional result arises from the fact that these nine documents create three departments of gov ernment, and vest the legislative power in one, the executive power in another and the judicial power in a third.
There are no clear lines separating one governmental function from another, and the courts have therefore been unable to develop any logical lines of division. Legislative power having been dele gated to Congress and the State legislatures, the courts frequently say that legislative power may not be delegated, but the very necessities of modern life have forced in the United States, as in England and on the Continent, the vesting of a large amount of sub ordinate legislative authority in permanent administrative bodies within the executive department. In order to avoid terming this
a delegation, the courts have come to designate such powers as "quasi-legislative," rather than "legislative." In the same manner, administrative bodies within the executive department have come to exercise powers that are sustained on the ground that they are "quasi-judicial" rather than "judicial." The result is therefore not dissimilar from that in countries that have not attempted to set up three separate departments through judicially enforceable constitutions. But such flexibility as develops under the American plan comes more slowly, and can be achieved only with judicial approval. A study of American political institutions must, there fore, always take into account the greater rigidity in governmental structure resulting from the constitutional principle of separation of powers, although that rigidity has been to a large extent abandoned through less strict judicial construction.