July 14, 2005
EXECUTIVE ORDERS AND SEPARATION OF POWERS
By: Susan Price, Principal Legislative Analyst
Sandra Norman-Eady, Chief Attorney
You asked how courts determine whether a governor's executive order violates the constitutional separation of powers doctrine. You also asked if there is precedent for Governor Rell's creation of the State Contracting Standards Board by executive order concurrently with exercising her veto power over an act that would have created a body with the same name but with some different appointing authorities and functions.
The Office of Legislative Research is not authorized to give legal opinions and this report should not be considered such.
Although our governors have been issuing executive orders since 1836, neither their issuing authority nor the permissible scope of these orders has been judicially determined in Connecticut. However, courts in other jurisdictions have ruled that their governors may issue executive orders in the exercise of their constitutional and statutory powers and duties, but the orders cannot usurp the legislature's exclusive authority to formulate public policy by statute. Likewise, they have ruled that governors cannot create a board or commission by executive order and assign it legislative functions unless specifically authorized to do so by the constitution or state law.
The basic questions a court would have to consider in ruling on the constitutionality of the executive order establishing the State Contracting Standards Board (Executive Order No. 7 (E.O.7)) are whether the governor's action was a legitimate exercise of (1) executive, rather than legislative, power or (2) power delegated to the governor by the legislature. To make this determination courts generally consider whether the action constitutes (1) an assumption of power that lies exclusively under the control of another branch or (2) a significant interference with the orderly conduct of the essential functions of another branch. If it finds either, a court would likely decide that the executive order violates the separation of powers provision of the state constitution by encroaching on powers constitutionally vested solely in the Legislative Branch.
We found one instance that is factually similar to Governor Rell's veto of PA 05-286 and her simultaneous issuance of E.O. 7. In July 1995, then-Governor Rowland vetoed an act that, among other things, (1) created the Federal Funds Advisory Council and (2) gave the legislature greater oversight over how federal block grant funds were spent (PA 95-278). The governor's veto message indicated that, while the creation of the council was a good idea, the provisions expanding the legislature's oversight authority were bad public policy and necessitated his veto. Shortly thereafter, he issued E.O. 6, which created the Federal Funds Advisory Council with objectives very similar to those in the vetoed act. It appears that the validity of his action was not subjected to judicial review, nor have been the many other occasions on which governors issued executive orders creating councils, boards, and commissions (e.g., Governor's Law Enforcement Council (John G. Rowland E.O. 4), the Blue Ribbon Commission on School Choice (E. O. 8), and the Office of Faith-Based Initiatives (E. O. 31)).
CONSTITUTIONAL AND STATUTORY PRINCIPLES
Separation of Powers
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 separation of powers provision serves the dual function of limiting the exercise of power within each branch, yet ensuring independent exercise of that power (Massameno v. Statewide Grievance Committee, 234 Conn. 539 (1995)).
This doctrine, however, cannot be rigidly applied always to render mutually exclusive the role of each branch of government (Massameno, supra). The powers granted to departments of government necessarily overlap to some extent and the concept of separation of powers is not one that is capable of precise legal definition yielding clear solutions to intergovernmental disputes (Stolberg v. Caldwell, 175 Conn. 586 (1978)).
In deciding separation of power questions, courts consider if the actions constitute (1) an assumption of power that lies exclusively under the control of another branch or (2) a significant interference with the orderly conduct of the essential functions of another branch (Massameno, supra, at 552-53).
The Legislature's Powers
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 specifically 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, federal law, or other provisions of the state constitution (see Patterson v. Dempsey, 152 Conn. 431, 444 (1965)). The legislative power includes the authority to formulate the state's public policy (Morel v. Department of Public Health, 262 Conn. 222 (2002)) and 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; Adams v. Rubinow, 157 Conn. 151 (1968)). Citing this authority, the state Supreme Court held that a partial veto by the governor of portions of an appropriations act that were unrelated to appropriations 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)).
No court in this state has decided whether the governor's issuance of an executive order in an area under the legislature's control would be unconstitutional. However, the attorney general has posited a scenario in which he concludes that an executive order would unconstitutionally encroach on the legislature's authority. In Atty. Gen. Op. 2002-013, he upheld the validity of an executive order that would have placed a moratorium on previously proposed or new gas or electric transmission projects. 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.” The language that saved the order limited its reach to actions “insofar as permitted by law.” In the absence of this deference to the legislature, he indicated that the executive order would have had the effect of directing state agencies to withhold actions required by statutes in apparent violation of the state constitution.
In some circumstances the legislature can delegate a portion of its constitutional authority to another branch of government. 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); see also Wilson v. Connecticut Product Development Corp., 167 Conn. 111, 120 (1974)). However, the legislature cannot delegate its authority to enact laws or formulate public policy (Rudy's Limousine Service v. Dept. of Transportation, 78 Conn. App. 80 (2003)).
Powers the Legislature has Delegated to the Governor
In fact, the legislature has delegated a number of powers to the governor. By statute he may “personally or through any authorized agent, investigate into, and take any proper action concerning any matter involving the enforcement of the laws of the state and the protection of its citizens. He may appoint any officer of the state whose office is provided for by law but for whose appointment no other provision is made by the constitution or statutes. He may demand in writing from any officer, department, board, commission, council or other agency of the state a report on any matter relating to the official duties of such agency” (CGS § 3-1).
Other statutorily delegated powers include:
1. initiating lawsuits on behalf of the state (CGS § 3-5),
2. the same investigatory authority as is statutorily conferred on the Office of Policy and Management secretary (CGS § 3-6),
3. restricting the use of streets and highways during extreme weather conditions (CGS § 3-6a),
4. proclaiming transportation emergencies and carrying out necessary functions (CGS §§ 2-6b(a) and (c)), and
5. issuing proclamations and orders under specific statutes (see, e.g., CGS § 16a-11 (proclaiming an energy emergency) and CGS §§ 4-11 and -12 (ordering the suspension or removal of an executive branch commissioner)).
The Governor's Constitutional Powers
In contrast to the grant of plenary power to the legislature, the Connecticut constitution vests specific powers in the governor. She (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). She 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 her for her signature (Article Fourth, §§ 10, 11, 15, and 16).
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)).
EXECUTIVE ORDER NO. 7
E.O. 7 establishes the State Contracting Standards Board as an independent body within the Executive Branch, designating its membership and placing its employees in the Department of Administrative Services for administrative purposes. The order states that the creation of the board is designed to address “an acute need to make reforms in the state contracting process in order to ensure that the process reflects the highest standards of integrity, is clean and consistent and is conducted in the most efficient manner possible to enable state agencies to deliver programs and serve [its] citizens”.
Among other things, the order directs:
1. the governor to appoint the board's executive director and treat him for most purposes as an appointed official;
2. the DAS commissioner to set the director's salary and to place him in the management pay plan with all associated benefits;
3. per diem payments for board members;
4. the board to prepare a uniform procurement code applicable to transactions the order defines;
5. the board to review, audit, and certify that state contracting agencies are complying with the procurement code;
6. the board to define the contract data retention requirements for state agencies with regard to specific topics;
7. that the board's documents are subject to the state Freedom of Information Act's disclosure exemptions;
8. that the board be empowered to reduce a contractor's disqualification period under certain circumstances; and
9. that no state agency contract for more than $50,000 for legal services from private attorneys without putting out a request for proposals and utilizing a competitive selection process.
The order does not contain an “insofar as permitted by law” limitation.
In deciding the constitutionality of E.O. 7, a court would likely have to determine whether the governor's establishment of the board and the functions she assigned to it are supported by either her constitutional authority or a power expressly delegated to her by the legislature. We found no such authorization. Although the legislature has given her the authority to appoint public officials in some circumstances, this power is limited to the appointment of officials to positions the legislature has already created. Section 3-1 of the Connecticut General Statutes gives the governor authority to appoint state officials whose office is provided by law, so long as appointing authority is not assigned elsewhere in the constitution or statutes. On its face, the statute appears to make this power contingent on the legislature's first creating the position, a circumstance that is not present in this scenario.
An argument could be made that the governor's authority to issue E.O.7 arises from her constitutional and statutory authority to see that the laws are properly enforced (Article Fourth, § 12; CGS § 3-1). There is no controlling caselaw in Connecticut, but courts in other jurisdictions have upheld executive orders on this basis. New York's highest court found that the governor's issuance of an executive order establishing a voter registration program was a legitimate exercise of his authority to implement the legislature's policy of encouraging broad participation in elections. The court was not swayed by the argument that several efforts to pass similar legislation had failed (Clark v. Cuomo, 466 N.E. 2d 794 (1985)). The fact that the program did not contravene any statute or constitutional delegation of authority appears to have been a significant factor in its reasoning (id., at p. 798).
Examining the substance of E.O. 7, a Connecticut court would have to determine whether any of its provisions assign legislative functions to the board or would unduly interfere with the legislature's performance of its essential functions. It might find inconsistencies between the order and PA 05-286, the vetoed act, indicative of the legislature's intent to shape state policy regarding contract reforms in a different manner. For a comparison of E.O. 7 and PA 05-286's provisions, see OLR Report 2005-R-0567.
A court might also find that portions of the executive order contravene existing law. For example, statutes already govern such things as the creation and functions of executive agencies and boards, salary assignments, state contracting procurement procedures and audits, document retention and disclosure procedures, contractor debarment, and the procedure for retaining private counsel. Each of these topics is included as a provision in E.O.7, with no language limiting their implementation to those that are otherwise permitted by law.