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. This 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 done.
Almost ten years after an overwhelming majority of voters in Rhode Island voted to put Separation of Powers in our guiding document it’s scary that legislators still can’t find the boundaries between the three branches of our government.