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Separation of powers is a necessary "bulwark against tyranny"" in part because allowing one branch to wield executive and judicial power would impair the impartial administration of the laws.2 The Fourteenth Amendment's due process clause' requires states to provide an impartial tribunal for their citizens in criminal prosecutions. Therefore, due process analysis should consider whether a state's institutional structure threatens the impartiality of the criminal tribunal by failing adequately to separate executive and judicial responsibilities. Under the Dreyer doctrine, however, federal courts may not subject a state's separation of powers schemes to due process scrutiny.4 This Note challenges that doctrine. It disputes the Court's view that federalism bars due process inquiry into the structure of state government, proposes how courts might determine when a state violates due process by too closely linking the executive and judicial functions, and concludes by illustrating how that proposal might be applied.

Justice without Favor: Due Process and Separation of Executive and Judicial Powers in State Government