GOVERNORS; EXECUTIVE ORDERS;
GOVERNOR'S OFFICE; EXECUTIVE ORDERS;
June 18, 2003
By: Sandra Norman-Eady, Chief Attorney
You asked (1) by what authority the governor can issue executive orders, (2) whether there are any limitations on the subject of these orders, (3) if he can change the duration of non-citizens’ drivers’ licenses by executive order, and (4) if, and under what circumstances, orders have been issued that have attempted to amend statutory law.
The Office of Legislative Research is not authorized to give legal opinions and this report should not be considered one.
Governors of this state have been issuing executive orders since 1836 when then-Governor Henry W. Edwards issued a proclamation for federal treasury surplus to be placed in the Town Deposit Fund (the actual phrase “executive order” appears to have been first used by then-Governor Abraham Ribicoff in 1959).
Occasionally, the governor’s authority to issue orders is expressly stated in statute. For example he has the expressed authority to proclaim certain days and bank holidays, issue orders during energy emergencies, and issue orders during a state of emergency. But most often this authority is not expressly granted by the state constitution or statute. Instead, his authority to issue executive orders appears implicit based on his broad constitutional and statutory powers. A review of the basis for the executive orders issued over the last century could be categorized in one of four ways: (1) as an exercise of his constitutional authority as chief supreme power of the state, (2) in the fulfillment of his constitutional duty to enforce state laws, (3) in the exercise of his duty as chief commander of the state militia, or (4) to declare a state emergency or promulgate emergency plans.
Neither the governor’s authority to issue these orders nor their scope has been judicially determined in Connecticut. However, the state Supreme Court has held that the power to legislate is vested solely in the legislature. The Court has also ruled that the governor’s role is to enforce existing laws and any other decision-making authority must be found in the constitution or statute. In 2002, the state attorney general cited these cases in support of his position that the governor could not, by executive order, suspend the Connecticut Siting Council’s statutory deadlines for making decisions on applications for gas or electric transmission facilities.
Thus, it appears that the governor may issue executive orders in the exercise of his constitutional and statutory powers and duties, but the orders cannot create law, a power the state constitution’s separation of powers provision vests solely in the legislature. Whether the governor can issue an executive order to limit the duration of non-citizens’ drivers’ licenses would depend on whether the action is an exercise of (1) executive power or (2) power delegated to the executive branch by the legislature.
To find the governor’s action in violation of the separation of powers provision of the state constitution, a court would have to conclude that the governor did not (1) assume a power that lies exclusively under the legislature’s control or (2) significantly interfere with the orderly conduct of the legislature’s essential functions. A court would likely find that the legislature exerted its power in this area by statutorily setting drivers’ license durations at four or six years as it phases in six-year licenses for all drivers. It could also find that the legislature declined to establish separate license durations for resident aliens, as evidenced by the legislature’s consideration of, but failure to act on, a bill (sSB 930) that would have established such a structure.
To hold that the legislature delegated its authority to the governor, a court would have to find an explicit declaration of legislative policy and standards for carrying it out. Again, it would be unlikely that a court would reach this conclusion given the legislature’s activity in this area (e. g. , current law and recent consideration of legislation).
In our review of executive orders or proclamations dating back to 1836, we noticed that during World War I then-Governor Marcus Holcomb imposed various restrictions on business hours to limit fuel consumption and during World War II then-Governor Raymond E. Baldwin suspended various statutes and amended the absentee voting law (see attachment). Again, no executive order, including these, has been the subject of a lawsuit.
BACKGROUND—DRIVERS’ LICENSE LEGISLATION
The Department of Motor Vehicles (DMV) can issue drivers’ licenses for either a four- or six-year term as it phases in six-year licenses for all drivers (CGS § 14-41). However, drivers age 65 or older can request either a two- or six-year license (CGS § 14-41a). A bill (sSB 930) introduced during the 2003 legislative session would have required the DMV commissioner to issue a limited-term license to a non-citizen in this state whose presence in the country is of limited duration pursuant to federal law. The term of the license would have coincided with the period of the person's lawful presence in the United States. The requirement would not have not applied to anyone who presented the commissioner satisfactory evidence of (1) a pending application for a change or an extension of his presence in the country or (2) his status as a beneficiary under Section 245(i) of the Immigration and Nationality Act.
The bill would have established a $ 9 fee for each year or part of a year the limited duration driver's license covered. Anyone holding a limited license who obtained permanent resident status or permission to extend his stay could have requested a revised license. To do this, he would have had to provide the commissioner with satisfactory evidence of his extension of stay or change in status and surrender his previously issued license.
The bill passed the Senate with two amendments, one of which included the above described language, but died on the House calendar.
GOVERNOR’S AUTHORITY TO ISSUE EXECUTIVE ORDERS
The state constitution grants the governor powers, but not express authority to issue executive orders. Under the state constitution, the governor (1) is the supreme executive power in the state (Article Fourth, § 5), (2) must make sure that state laws are faithfully executed (Article Fourth, §12), (3) serves as captain general of the state militia outside of U. S. service (Article Fourth, § 8), and (4) can grant reprieves after conviction, except for impeachments, until the end of the next legislative session (Article Fourth, §13). He can also make recommendations to the legislature on the state of government, adjourn the General Assembly when the two houses disagree on adjournment, and veto bills that must be presented to him for his signature (Article Fourth, §§ 10, 11, 15, and 16).
The governor has expressed authority, under certain statutes, to issue orders or proclamations. (An electronic search of the term “executive order” shows only three statutory references, excluding annotations. ) He also has other statutory authorities and duties, such as the authority to appoint state officers, other then the six constitutional officers (CGS § 3-1) and allow an action to brought in the name of the state when state interests demand it (CGS § 3-5).
Table 1 shows the citation and subject matter of statutes that expressly grant the governor the power to issue orders or proclamations.
Table 1: Governor’s Authority to Issue Orders or Proclamations
CGS § 3-6a
Issue an order for travel on state streets and highways closed due to natural emergency
CGS § 3-6b
Proclaim or issue an order declaring a transportation emergency
CGS §§ 4-11 and 12
Issue an order to suspend or remove an executive branch commissioner
CGS § 5-254
Issue an order listing paid state holidays
CGS § 16a-11
Proclaim an energy emergency
CGS § 22a-148
Issue an order, during an emergency, waiving the prohibition against the use of ionizing radiation
CGS § 22a-161
Issue an executive order for the state to become a party to the Northeast Interstate Low-level Radioactive Waste Management Compact
CGS § 27-5
Issue an executive order making applicable to the Navy any provision of state militia law necessary and proper for regulating the Navy that does not conflict with U. S. Navy regulations
CGS § 27-2 et seq.
Issue military orders during time of peace
CGS § 28-9
Declare a civil preparedness emergency
CGS § 42-231
Declare a product supply or service emergency
GOVERNOR’S POWER TO LIMIT DURATION OF DRIVERS’ LICENSES
Possible Sources of Power
Of all of the governor’s constitutional powers, his role as supreme executive power in the state appears the broadest and as such the most likely of all constitutional powers to be asserted as his authority for issuing an executive order to limit the length of licenses held by non-citizen aliens living in Connecticut. Of his expressed statutory powers and duties, the governor might likely argue that placing a limitation on non-citizens’ drivers’ licenses is an extension of his power to declare a state emergency.
Although no Connecticut court has determined the scope of the governor’s power as supreme executive, courts in other jurisdictions with similar provisions in their state constitutions have. “A constitutional grant of the supreme executive power to a governor implies such power as will secure an efficient execution of the laws…to be accomplished, however, in the manner, by the methods, and within the limitations prescribed by the constitution and statutes of the state…. [H]e may not exercise any legislative function except that granted to him expressly by the terms of the constitution” (38 Am. Jur. 2d Governor § 4). The state Supreme Court cited this body of cases when deciding that the governor’s statutory power to supervise the execution of the budget did not authorize him to modify budgetary allotments to towns (Bridgeport v. Agostinelli, 163 Conn. 537 (1972)).
Rather than claiming that he has the expressed authority to limit the duration of drivers’ license, the governor could argue that the legislature delegated its authority to do so to him. The state Supreme Court has held that a delegation of legislative power is accomplished when a statute declares a legislative policy and either “establishes primary standards for carrying it out or lays down an intelligible principle to which the administrative officer or body must conform (State v. Stoddard, 126 Conn. 623, 628 (1940); Wilson v. Connecticut Product Development Corp. , 167 Conn. 111, 120 (1974)).
Article Second of the Connecticut Constitution provides in relevant part: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate majesty, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial to another. ” The primary purpose of this separation of powers provision is to prevent the commingling of different powers of government in the same hands. The constitution achieves this purpose by prescribing limitations and duties for each branch that are essential to its independence and performance of assigned powers. The separation of powers provision serves a dual function: it limits the exercise of power within each branch, yet ensures the independent exercise of that power (State v. Kinchen, 243 Conn. 690 (1998)).
Article Third, § 1 of the state constitution vests the legislative power of the state “in two distinct houses or branches; the one to be styled the senate, the other the house of representatives, and both together the general assembly. ” Unlike the U. S. Constitution, which enumerates Congress’ legislative powers, the Connecticut Constitution does not specifically enumerate the General Assembly’s powers. It is well established that the General Assembly therefore has the power to enact any legislation except that which violates the U. S. Constitution or other provisions of the state constitution (see Patterson v. Dempsey, 152 Conn. 431, 444 (1965)). The legislative power includes the authority to make, alter, and repeal laws (16A Am. Jur. 2nd § 276).
Connecticut courts have consistently held that Article Third, § 1 of the state constitution grants exclusive legislative power to the General Assembly (State v. Malm, 143 Conn. 463 (1956); Patterson v. Dempsey, supra); and Adams v. Rubinow, 157 Conn. 151 (1968)). Citing this exclusive authority, the state Supreme Court held that a partial veto by the governor was unconstitutional because it distorted or frustrated the interest of the legislature and enabled the executive to legislate (Caldwell v. Meskill, 164 Conn. 299 (1973)).
Whether the governor, as supreme executive power of the state, can issue an executive order limiting the duration of non-citizens’ drivers’ licenses without violating the above-stated separation of powers provision will turn on whether the action constitutes: (1) an assumption of power that lies exclusively under the legislature’s control or (2) a significant interference with the legislature’s orderly conduct of its essential functions (Massameno v. Statewide Grievance Committee, 234 Conn. 539, 551-553 (1995)). They have recognized, however, that governmental powers can overlap. Thus, they have concluded that the separation of powers provision cannot always be rigidly applied to render mutually exclusive the roles of each branch of government (Massameno, at 576 and 577).
As stated earlier, the state Supreme Court has held that the state constitution grants exclusive legislative power to the General Assembly (Malm, supra). Although no court in this state has decided whether the governor’s issuance of an executive order in an area under the exclusive control of the legislature would be unconstitutional, the attorney general has. Last year, he issued an opinion (Atty. Gen. Op. 2002-013) finding unconstitutional an executive order that would have placed a moratorium on previously proposed or new gas or electric transmission projects (a subject, like drivers’ licenses, already acted on by the legislature). In the opinion, the attorney general states: “As a fundamental principle of law, an Executive Order may not contradict or supersede a statute or constitutional provision, and may not suspend, modify or revoke any statutory provision enacted by the General Assembly. ”
In resolving a legal challenge to the governor’s executive order, a court would likely find that the General Assembly would have enacted sSB 930 if it had wanted the Department of Motor Vehicles to issue durational licenses for this population. Consequently, it could find and an attempt by the governor to do so to be an unconstitutional interference with the orderly conduct of the legislature’s function to make law.
The delegation of authority argument would probably not be persuasive given the absence of (1) a stated legislative policy to delegate authority and (2) any clear directions for carrying out such a delegation. Instead, a court would likely find that the legislature’s activity in this area (i. e. , it enacted a law setting durations and considered a bill during the 2003 session that would have amended the law) precludes any notion of a delegation.