January 4, 2010

Why the Proposed Teachers' Health Insurance Board is an Unconstitutional Violation of Separation of Powers

Carroll Andrew Morse

A non-trivial question concerning the new teachers' health insurance board proposed by the legislature but opposed by the Governor is which branch of government it would belong to.

It's obviously not the judiciary.

And as currently structured, the board cannot be an offshoot of the legislature. A legislature has no power to delegate its statewide lawmaking authority to a group of non-legislators operating outside of the normal lawmaking process -- unless it is through the rule-making authority of an executive branch agency.

That leaves the executive branch, which makes sense, as this new board is basically a regulatory agency charged with overseeing the actions of school committees in certain aspects of teacher contract negotiations. However, the legislature does not have the power to designate anyone it chooses as makers of administrative rules that ultimately carry the force of law; according to the principle of separation of powers, this power can only be delegated to a constitutionally recognized executive.

This aspect of separation of powers, fundamental to the structures of our state and Federal governments, is spelled out directly in Article IX Section 5 of the Rhode Island Constitution…

The governor shall, by and with the advice and consent of the senate, appoint all officers of the state whose appointment is not herein otherwise provided for and all members of any board, commission or other state or quasi-public entity which exercises executive power under the laws of this state; but the general assembly may by law vest the appointment of such inferior officers, as they deem proper, in the governor, or within their respective departments in the other general officers, the judiciary or in the heads of departments.
Rhode Island legislators have no basis for ignoring Article IX and replacing the Governor with labor unions or other organizations in making appointments to state boards (no matter how much they might like to) unless they're claiming the authority to create new branches of government without needing a constitutional amendment.

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You might want to make sure Rep. McNamara gets this little bit of info, as he is the primary sponsor of the bill.

Posted by: MadMom at January 4, 2010 8:37 PM

Excellent analysis of the fatal Constitutional flaw of this bill, Andrew.

Looking at a less substantive aspect of this bill - the political motivation for it - upon reflection, this must have arisen from the desire of certain solons to distribute tax-payer funded benefits to favored special interest groups while deflecting fall-out from the voter/taxpayer.

"Your taxes went up again because of these benefits? Oh darn. Well, it sure isn't my fault. I didn't vote for them. See you in November!"

Posted by: Monique at January 4, 2010 9:09 PM

I just sent a copy of this article to Reps. McNamara and Malik, asking them to withdraw the bill.

Posted by: BobN at January 5, 2010 8:40 AM

Well, they steamrolled it in the House. I don't expect any better from the Senate.

It would be great if the Governor has the cojones to ask the Supreme Court to rule on it as a violation of separation of powers. But I'm not optimistic.

The next step would be to get an amendment in the new session at least to get rid of the union dominance of that board.

Or, those towns that have already joined up to negotiate good deals (I understand there are a few) and will lose the benefit of what they negotiated could sue on the Constitutional grounds as a financially injured party.

Posted by: BobN at January 5, 2010 7:15 PM

[Banned reader's comment deleted. --- JK]

Posted by: George Elbow at January 5, 2010 9:48 PM
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