If you want to open a can of worms at Peach Pundit, simply start a thread that gives readers an excuse to talk about “separation of powers” and the role of the Lieutenant Governor. Eventually someone will start throwing around the term “separation of powers” and even suggest that a lawsuit is inevitable if Lt. Gov. Casey Cagle is given back some of the traditional administrative duties of the office he holds.
But such a viewpoint fails to consider the context of the notion of separation of powers in the twenty-first century and oversimplifies a complex subject to the level of an episode of Schoolhouse Rock. Eventually it bends the concept so far by suggesting that the judiciary may intervene to sort out a disagreement about Senate rules, that it breaks the principle of separation of powers more effectively than any change in Senate rules could manage.
Context and the Georgia Constitution
Now whenever a writer starts talking about “context” the very next thing you should expect is for them to try and tell you that some words you think you understand mean something completely different from what you think they mean. But when construing our state Constitution, the most important piece of context is the rest of the document itself. Check it out or just jump to the summary.
Section II, paragraph III of the Georgia Constitution (.pdf) states
Separation of legislative, judicial, and executive powers. The legislative , judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.
Sounds simple enough, right? You might even point to an Attorney General’s opinion addressing whether an Assistant District Attorney may serve in the legislature that along the way discusses the Constitutional separation of powers.
“This provision distinguishes our state Constitution from the federal Constitution, which has no express provision ‘prohibit[ing] the officials of one branch of government from exercising the functions of the other branches.’” Sentence Review Panel v. Moseley, 284 Ga. 128, 129 (2008).
In addressing the application of the separation of powers doctrine, it is evident that under the plain language of the Constitution any analysis of whether the doctrine has been violated must look both at the legal designation of the branch of government to which a particular position is assigned as a matter of law and at the underlying duties and responsibilities that are being performed.
Seems pretty clear. Until you get to Article IV (Constitutional Boards and Commissions) and Article V, Section I, paragraph III, which states
Lieutenant Governor. There shall be a Lieutenant Governor, who shall be elected at the same time, for the same term , and in the same manner as the Governor. The Lieutenant Governor shall be the President of the Senate and shall have such executive duties as prescribed by the Governor and as may be prescribed by law not inconsistent with the powers of the Governor or other provisions of this Constitution [emphasis added]….
The rise of administrative agencies in Georgia government
The first sign that separation of powers isn’t going to be as simple as it seems is not the grant of power to the Lt. Gov., but the creation of Constitutional Boards and Commissions, which are not clearly placed in any of the three traditional branches and in many cases exercise a blend of quasi-legislative, quasi-judicial and executive powers.
In fact, these boards and commissions have their own section of the Georgia Constitution, Article IV, while the legislative branch is constituted in Article III, the executive branch in Article V and the judiciary in Article VI. This clearly demonstrates that as far as separation of powers, these agencies are neither fish nor fowl; they throw a monkey wrench into any simplistic understanding of separation of powers.
The Georgia Public Service Commission, created in Article IV, Section I is the best example of a triple-quasi administrative agency. Under our current constitution, the PSC is established “for the regulation of utilities” and exercises “such jurisdiction, powers, and duties as provided by law” without further explanation or limitation.
The Public Service Commission was established in 1879 as the Railroad Commission of Georgia. During this period most states developed similar agencies to address the complex issues of railroad regulation. In 1922, the commission was given its current name in recognition of the expansion of its regulatory responsibilities, which came to include intrastate trucking, limosuines and household goods movers, for-profit electric utilities, gas companies, intrastate telephony and other similar industries that are widely considered to be “natural monopolies.”
This mirrored the rise in the federal government of a new form of government called the administrative agency, a development that would accelerate through the New Deal era until the 1980s and 1990s saw movements to consolidate and in some cases, curtail these agencies.
By 1952, U.S. Supreme Court Justice Robert Jackson wrote:
The rise of administrative bodies probably has been the most significant legal trend of the last century, and perhaps more values today are affected by their decisions than by those of all the courts, review of administrative decisions apart. They also have begun to have important consequences on personal rights. Cf. United States v. Spector, 343 U. S. 169. They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking.
Courts have differed in assigning a place to these seemingly necessary bodies in our constitutional system. Administrative agencies have been called quasi-legislative, quasi-executive, or quasi-judicial, as the occasion required, in order to validate their functions within the separation of powers scheme of the Constitution. The mere retreat to the qualifying “quasi” is implicit with confession that all recognized classifications have broken down,and “quasi” is a smooth cover which we draw over our confusion, as we might use a counterpane to conceal a disordered bed.
FTC V. RUBEROID CO., 343 U. S. 470 at 487-88 (1952) (Jackson, J., dissenting).
But back to Georgia. Under current legislation, the Public Service Commission promulgates and enforces rules about how regulated companies may interact with ratepayers. This is a legislative function that has been delegated by the General Assembly. The PSC also makes decisions in rate cases and in cases between regulated entities that include procedural rules, lawyers, sworn witnesses, and written decisions. This is a quasi-judicial function, and in some cases includes the ability to levy fines. Until changes made under Governor Perdue, the PSC had sworn enforcement officers with badges, guns, and Crown Vics; clearly an executive function.
This mish-mash of functions from the three traditional branches of government would almost certainly be unconstitutional…. if it weren’t actually in the Constitution itself.
Whatever simplistic understanding we might have had about the meaning of “separation of powers” does not survive the rise of administrative law, and must give way to a more nuanced understanding.
If it’s in the Constitution, then by definition, it cannot be unconstitutional
The problem with simply asserting that “[t]he Lt. Governor is a member of the Executive branch and has no business being involved with legislating” is that the Constitution requires that he preside over the Senate. It’s not optional under the actual language of the Constitution. “Shall” does not mean “may” and if presiding over the Senate is required by the Constitution, it is by definition constitutional.
So what did the framers of our state constitution mean when they said the Lt. Gov. shall be President of the Senate? The courts, should it ever come to that, would likely look at what the role of the Lt. Gov.
For nearly sixty years between the 1945 adoption of the first Georgia Constitution to include Lt. Gov. as a constitutional office until the 2003 stripping of many of the internal organizational functions from Lt. Gov. Mark Taylor, the Lt. Gov. exercised powers including naming of committee chairs and playing an active role in the internal organization of the Senate. No successful constitutional challenges were mounted against the exercise of these powers.
The Senate can delegate power to the Lieutenant Governor
When the Lt. Gov. exercises organizational powers under the Senate Rules, it is clear that the Senate has delegated those powers to him. While that historical context is not conclusive, it does suggest that a full generation of Georgia politicians believed that the Lt. Gov. could exercise such powers if they were properly delegated to him by the General Assembly.
I’m not aware of any Georgia court cases determining the limits of the General Assembly’s ability to delegate organizational responsibilities to the Lt. Gov. in his role as President of the Senate, but some cases addressing the legislature’s power of delegation in the agency context are helpful.
In 1990, the Georgia Supreme Court addressed the limits of the General Assembly’s ability to delegate its legislative power to an administrative agency and cited an earlier case for the proposition that “[w]hile the Constitution declares that the three departments of government shall be separate and distinct, this separation is not and from the nature of things cannot be total.”
A 1978 case in the Supreme Court dealt with the legislature’s grant of some legislative power to another constitutional officer
It has often been held that the constitutional restriction on delegation of legislative powers does not prevent the grant of legislative authority to some ministerial officer, board or other tribunal to adopt rules, by-laws, or other ordinances for its government, or to carry out a particular purpose.
Scoggins v. Whitfield Finance Co. 249 SE2d 222 (1978).
So it is clear that the General Assembly, or one house, can delegate some of its rulemaking power to a constitutional executive officer, like the Lt. Gov. but there are also limitations on the General Assembly’s power to delegate.
In 1936, the Georgia Supreme Court discussed limitations on the legislature’s delegations, stating “those functions which are essentially legislative must be performed by the legislative body, and may not be delegated to executive or ministerial officers.”
So we now have some idea of the limitations of the powers that the Senate might delegate to the Lt. Gov. — somewhere between merely administrative or ministerial functions, up to the limits of essential legislative functions dealing with substantive legislation. While not the height of clarity, it appears that the traditional functions of the Lt. Gov. in presiding over the Senate can legitimately be delegated to him by the General Assembly.
It has been suggested that any Senate rules that restore the traditional functions of the Lt. Gov. might result in a lawsuit challenging the rules. Another commenter raises the issue that private citizens would not have standing to challenge the rules in a lawsuit.
Standing is the legal doctrine stating that a plaintiff cannot challenge a law unless she can demonstrate that she has actually been harmed by it or will imminently be harmed. Georgia’s cases on standing generally require a plaintiff challenging a legislative action as unconstitutional to show that they are individually harmed by the statute they are challenging. It is difficult to imagine a set of circumstances in which a court would find that an individual plaintiff had been harmed by the adoption of Senate rules that delegate administrative functions to the Lt. Gov., though some of you have more fertile imaginations that I do.
We now come to the real separation of powers issue, which a commenter touched upon; that a state court is unlikely to insert itself into an internal dispute over legislative procedural rules. While it is true that in our system of government the courts are the final arbiters of constitutionality, they traditionally have shown great deference to the other branches of government in organizing their own internal affairs. And if we are talking about rules adopted by a majority of the Senate, the defendant in such a challenge would not be the Lt. Gov., but the Senate itself.
In summary, the doctrine of separation of powers under the modern Georgia constitution is more complicated than the Schoolhouse Rock version some citizens proclaim. The existence of Constitutional boards and commission, which at times exercise powers traditionally considered to be legislative, judicial and executive, at the same time that they stand outside the traditional three-ring structure indicates that strict separation is no longer the rule. The constitutional requirement that the Lt. Gov. shall serve as President of the Senate means that some exercise of legislative involvement by the Lt. Gov. is not only permissible under the constitution but is required. Further delegation by Senate Rules of administrative functions to the Lt. Gov. is almost certainly permissible under the constitution, though not required. Ordinary citizens will not have standing to challenge the constitutionality of such rules in any case. And no court in its right mind will wade lightly into the propriety of internal Senate Rules.
I take no position on whether the Senate should delegate more of the traditional functions exercised by past Lt. Govs. to the current occupant of that office. That is a political decision for the Senate alone.