A quick refresher on Separation of Powers
by John Marion, John Marion on April 24, 0013
I joke sometimes that instead of Common Cause our
organization should be called the Separation of Powers Legal Defense Fund. Here’s why:
Next year will mark the 10th anniversary of
Separation of Powers being enshrined in the Rhode Island Constitution. Prior to the constitutional amendments of
2004, in the words of our Supreme Court, “Rhode Island’s history [was] that of
a quintessential system of parliamentary supremacy.” A key change made to our Constitution in 2004
was Article IX, Section 5 which vests sole authority to appoint “all members of
any board, commission or other state or quasi-public entity which exercises
executive power” with the Governor.
Every year, like returning mosquitoes, we find legislation
proposed in the Assembly that would violate that part of our Constitution and
thus run afoul of the principle of Separation of Powers. At Common Cause we see it as our role to swat
down those efforts by reminding lawmakers of the boundaries on their authority
created by Separation of Powers.
Today’s example comes courtesy of Representative Patricia
Morgan in the form of H 5316
legislation, being heard before the Committee on Health, Education and Welfare
today, would create a six-person commission to review all mandates required of
health insurance plans sold in Rhode Island.
The commission it creates would be appointed by legislative leaders and
would create a list of insurance mandates that are “not essential” in the view
of the commission.
The Department of
Business Regulation would enforce that plan unless the General Assembly
overrides the decisions of the Commission.
While reducing the number of mandates may be a laudatory
goal, we have no position on issues of health care, this attempt to do so is
unconstitutional on its face. Quite
simply, the General Assembly can no longer make executive decisions by
appointing people to boards and commissions.
If the General Assembly wants to repeal health care mandates (mandates
the General Assembly itself created by statute) they can simply repeal
them. Creating a separate legislatively
controlled commission to direct the executive branch to do so just can’t be