Unlike the U.S. Constitution, the New Jersey Constitution contains an explicit provision requiring separation of powers: “The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.” N.J. Const. art. III, ¶ 1. Despite its somewhat proscriptive text, this clause has never been interpreted as requiring watertight division among the exercise of executive, legislative and judicial powers, “but rather a cooperative accommodation among the three branches of government.” Communications Workers of Am. v. Florio, 130 N.J. 439, 449 (1992).

The practical difficulties in allocating power between the legislative and executive branches are nowhere more apparent than in defining their constitutional roles in the modern administrative state. The Legislature has necessarily delegated an enormous amount of discretionary policy-making power to the executive, usually through enabling acts that permit administrative agencies to promulgate rules that often become the primary source of regulation.

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