Limits, Construction & Separation of Powers

Question 1

States are said to have inherent power as a result of the

Answer 1

“social contract.” At formation of the states, individuals ceded a measure of independence to state government to better ensure a relatively safe and organized society.

Question 2

The state constitution provides limitations on the state’s otherwise:

Answer 2

plenary, sovereign power

Question 3

State governments are assumed to have all powers:

Answer 3

not specifically reserved by the U.S. Constitution

Question 4

Specific language in the state constitution can act as a limit:

Answer 4

of the state’s power by allocating authority to a particular branch of government; and

it can reaffirm existing authority.

Question 5

The state constitution cannot grant power because the state’s power is inherent. Instead, the state constitution is used to allocate that inherent power:

Answer 5

among different branches or departments of government

Question 6

When state government fails to act in accordance with the wishes of “the people,” the people can use:

Answer 6

the initiative petition process to insert specific grants of authority directly into the constitution to mandate government action

Question 7

If the constitution provides a means of doing something, then by implication it does not permit:

Answer 7

that thing to be done in a different way.

The presumption is that the intended construction is one consistent with the remainder of the provisions of the constitution.

If a provision of the constitution is silent on a given issue, or if its literal language clashes irreconcilably with its obvious purpose, then courts may resort to consideration of historical evidence concerning the intent of those who drafted and adopted the provision

Question 8

The court strictly construes the state constitution because:

Answer 8

constitutional provisions are deemed to be more carefully drafted, considered, and adopted than statutes

Question 9

A provision of the constitution is self-executing only if:

Answer 9

it can be immediately applied upon enactment or is otherwise expressly stated as such

If the provision contains a rule by which the applicable right can be protected or purpose achieved, then it is self-executing

If the provision cannot be applied without legislation specifying the procedure, definitions, or guidelines, it is not self-executing

Question 10

If a provision is self-executing, the legislative history of related statutes is:

Answer 10

irrelevant to its interpretation

Question 11

Statutes should be given what kind of construction?

Answer 11

constitutional construction whenever possible

Question 12

Legislative intent is the:

Answer 12

polestar that guides interpretation of statutes

Question 13

Penal statutes must be:

Answer 13

strictly construed

Question 14

The Florida Constitution expressly incorporates:

Answer 14

the doctrine of separation of powers

Question 15

What are the three branches of government in Florida?

Answer 15

Legislative, Executive, and Judicial

Question 16

The state separation of powers doctrine has been interpreted as preventing encroachment, meaning that

Answer 16

the whole power of one branch should not be exercised by the same hands that possess the whole power of another branch

Question 17

If the constitution specifies that a specific task is to be performed by a certain branch, then that branch cannot:

Answer 17

delegate that power to another branch

Question 18

Encroachment issues are most frequent at the executive department/administrative agency level, as some agencies exercise:

Answer 18

quasi-legislative and quasi-judicial power

Question 19

An exception to the encroachment rule is that delegation of legislative duties to:

Answer 19

administrative agencies by the legislature is permissible.

Cannot give unfettered power to the agencies

Administrative agencies must be sufficiently restricted by the guidelines and/or standards set out by the legislature in the delegating statutes

Courts cannot delegate their powers to administrative agencies

Question 20

Courts may not encroach on the workings of state agencies by:

Answer 20

1) ordering that agencies take certain actions; or

2) contradicting agency rules that are based on enabling legislation

Question 21

If the legislative branch has enacted a statute specifically interpreting an issue, then the judiciary:

Answer 21

will narrowly construe it in favor of the broadest possible retention of the preexisting common law

Question 22

Any statute that intends to displace a common law rule must:

Answer 22

expressly state the intention to do so.

Question 23

Once the legislative branch has acted, persons in the executive branch cannot:

Answer 23

change or modify statutes by adding criteria to them

Question 24

Once the legislative branch has set the policy of the state and incorporated it into statute, the governor cannot abrogate it by using:

Answer 24

the executive power to contradict the policy.

Question 25

Legislative statutes on procedural vs substantive matters:

Answer 25

If the statute is concerned with procedural matters, then it is more likely susceptible to encroachment arguments

If a statute relates to substantive matters, then it is properly within the legislature’s domain and less likely an issue of encroachment