Common Cause appreciates the Editorial Board’s longtime support for Separation of Powers in Rhode Island, but a recent editorial (“Dealing with divided power,” 1/13/2020) misconstrues the current controversy. It creates a false equivalency between recent actions of the General Assembly and of Governor Raimondo.
First, some important background. In 2004 the people of Rhode Island ended centuries of unbalanced government by enacting the Separation of Powers amendments into our state constitution. In doing that the people created three separate and distinct branches of government for the first time in our state’s history.
Separation of Powers balanced power between the three branches of Rhode Island’s government, ending unchallengeable control by legislative branch. Among other changes, the amendments gave the governor the exclusive power to appoint members of executive boards and commissions and eliminated a “broad powers clause” (Art. VI, Sec. 10) that had allowed the legislature to “continue to exercise” any powers not expressly prohibited in the Constitution. Institutions rarely cede power happily and the General Assembly was no different. It fought putting Separation of Powers on the ballot and tried for years to hold onto appointments to the Coastal Resources Management Council post-2004.
The current controversy arises because the General Assembly once again tried to claim power forbidden under Separation of Powers. In June 2019 the legislature passed a law (without taking any public testimony) that provides it with the ability to exercise a “legislative veto” over any regulations promulgated by two executive agencies regarding the cultivation and sale of hemp and the licensing of medical marijuana dispensaries. That veto allows the legislature to prevent any regulations on those topics from going into effect without their approval.
By creating a legislative veto, the General Assembly claimed a power that belongs to the courts, not the legislature; the ability to review executive action in excess of authority. The U.S. Supreme Court and state supreme courts in eleven states have been clear that the legislative branch does not enjoy such a power. This legislative veto violates the constitutional principle of presentment and therefore the recently-enacted Separation of Powers; that is why Governor Raimondo sued the General Assembly.
Shortly after she filed suit, the agencies promulgated regulations for the awarding of six additional marijuana dispensaries, the very regulations the Assembly claimed the right to veto. There is now a public debate over whether those proposed regulations go beyond the scope of the medical marijuana statute under which they were to be regulated. The Assembly asserts they go beyond the statute by, among other things, allocating the licenses by region, and not surprisingly, the governor disagrees. That is not our concern here.
The Editorial Board chastises Governor Raimondo for going beyond her statutory authority and further asserts that the regulations violate the Separation of Powers. In that the Editorial Board is creating a false equivalency. The regulations may violate the medical marijuana dispensary statute, but they don’t violate the constitution.
Questions of how administrative agencies interpret statutes occur all of the time. In Rhode Island the courts have enjoyed this power to review executive overreach since the seventeenth century. The legislature enjoys the power to change the underlying statute, which they are currently exercising. We are not trying to minimize this type of overreach because it can be serious and affect people’s rights. But people need to understand that it does not rise to a violation of our foundational document, the constitution. Rather, what we see happening is the Separation of Powers working as it should.
When the General Assembly enacted the legislative veto, it violated the governor’s power to enforce the laws and left her with limited remedies. Unlike the legislature, she could not simply cure the problem herself, the way the General Assembly can when the executive misconstrues a statute. Furthermore, the Assembly violated the people’s right to a system of Separation of Powers they created in 2004. That’s why Common Cause is asking the Superior Court to weigh in on behalf of the governor in her suit against the Assembly.