Robert Fellner (George Mason University, Antonin Scalia Law School) & Colleen McCarty (Fox Rothschild LLP) have posted Government Employees Need Not Apply: Why the State Separation of Powers Doctrine Bars Legislative Dual Service (Albany Law Review Vol. 86.4) on SSRN. Here is the abstract:
Federal and state constitutions both “agree with Montesquieu” that there are but three branches of government—legislative,executive, and judicial—and that each is “invested with a distinctive function.” Most state constitutions, unlike the United StatesConstitution, however, contain an explicit separation of powers clause. Moreover, many of those clauses specifically incorporate twoparts: the authorization of government power, followed by the appropriate distribution of said power. This Article seeks to identifywhy these state-specific separation of powers clauses should be read to preclude any form of legislative dual service, i.e., governmentemployees simultaneously serving as state legislators.
