On certification to the Superior Court, Appellate Division.
For invalidation -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber and Handler. Opposed -- None. The opinion of the Court was delivered by Pashman, J. Clifford and Schreiber, JJ., concurring in the result.
The General Assembly seeks a declaratory judgment that the Legislative Oversight Act, L. 1981, c. 27, N.J.S.A. 52:14B-4.1 to -4.9, is constitutional. The act allows the Legislature to veto by a concurrent resolution of both houses "[e]very rule hereafter proposed by a State agency," with certain limited exceptions. N.J.S.A. 52:14B-4.1, 4.4.
We hold that the legislative veto provision in the Legislative Oversight Act, L. 1981, c. 27, violates the separation of powers principle that "[t]he powers of the government shall be divided among three distinct branches," N.J.Const. (1947), Art. III, para. 1, by excessively interfering with the functions of the executive branch. The Legislature's power to revoke at will portions of coherent regulatory schemes violates the separation of powers by impeding the Executive in its constitutional mandate to faithfully execute the law. The legislative veto further offends the separation of powers by allowing the Legislature to effectively
amend or repeal existing laws without participation by the Governor. This process also contravenes the Presentment Clause requirement that changes in legislative policy be effected by a majority vote of both houses of the Legislature and approval by the Governor or, after executive veto, by a two-thirds vote of both houses. N.J.Const. (1947), Art. V, § 1, para. 14.
We emphasize both in this case and in Enourato v. New Jersey Building Authority, 90 N.J. 396 (1982), decided today, that not every action by the Legislature requires a majority vote of both houses and presentment to the Governor. Likewise, legislative cooperation with the Executive does not always unduly intrude upon the Executive's power to enforce the law. In many situations "responsibility is joint and governmental powers must be shared and exercised by the branches on a complementary basis if the ultimate governmental objective is to be achieved." Knight v. Margate, 86 N.J. 374, 389 (1981).
Nonetheless, the Court finds that the broad and absolute legislative veto provision in L. 1981, c. 27, is both an excessive intrusion into executive enforcement of the law and an unconstitutional mechanism for legislative policy making beyond the Governor's control. The Legislative Oversight Act thereby gives the Legislature excessive power both in making the laws and in enforcing them. This violates the separation of powers and the Presentment Clause.
The Legislative Oversight Act (Act), L. 1981, c. 27, N.J.S.A. 52:14B-4.1 to -4.9, became law on March 11, 1981, after both houses of the Legislature unanimously overrode Governor Byrne's veto. The Governor had vetoed three similar proposed amendments of the Administrative Procedure Act, L. 1968, c. 410, all of which sought to increase through legislative vetoes the Legislature's control over agency decision making. This fourth legislative attempt, S -1560, was originally passed on November 10, 1980, by a 38-0 vote in the Senate and a 63-0 vote
in the General Assembly. Governor Byrne vetoed the bill on January 13, 1981, declaring it unconstitutional. Subsequently, the Legislature easily mustered the constitutionally required two-thirds vote of both houses to override the Governor's veto. N.J.Const. (1947), Art. V, § 1, para. 14.
The Act requires submission to the Legislature of virtually every rule*fn1 proposed by any state agency. The President of the Senate and the Speaker of the General Assembly must immediately refer each proposed rule to a standing reference committee, N.J.S.A. 52:14B-4.1, which has 45 days to report its recommendation on the rule to the full membership of each house. N.J.S.A. 52:14B-4.2. A rule is deemed approved unless within 60 days of its receipt the Legislature adopts a concurrent resolution disapproving the rule. N.J.S.A. 52:14B-4.3. The Legislature has the option to adopt a concurrent resolution barring the rule from taking effect for an additional 60 days, during which time it can disapprove the rule through a concurrent resolution. Id.*fn2
On March 10, 1981, the day before the Legislative Oversight Act became law, acting Attorney General Judith A. Yaskin submitted Formal Opinion No. 3-1981, which concluded that the act was unconstitutional and therefore had no force and effect upon any state agency. The following day, Governor Byrne informed all cabinet officers of the Attorney General's opinion and advised them to disregard the act in any rulemaking activities.
On March 23, 1981, the Legislature passed a concurrent resolution, ACR -3024, which authorized the President of the Senate and the Speaker of the General Assembly to begin legal action to enforce the Legislative Oversight Act. On June 18, 1981 the General Assembly filed a complaint against Governor Byrne and Howard Kestin, Director of the Office of Administrative Law, in the Superior Court, Law Division, seeking a declaration that L. 1981, c. 27, is constitutional. The Senate filed a similar action on August 5, 1981. The Attorney General, acting as counsel for the defendants, filed answers to both complaints. The cases were consolidated pursuant to R. 4:38-1(a) and transferred to the Appellate Division pursuant to R. 2:2-3(a).
On December 3, 1981 the Appellate Division granted a motion to substitute Governor Byrne and Donald Linky, Counsel to the Governor, as attorneys for the Governor. That same day, the defendants moved this Court to certify the case directly pursuant to R. 2:12-1. We granted direct certification on March 26, 1982.
Purposes of the Separation of Powers and the Presentment Clause
The doctrine of separation of powers expresses a profound belief that the concentration of governmental power increases the potential for oppression, and that fragmentation of power helps ensure its temperate use. Our Constitution therefore gives certain powers to each branch of government to protect citizens from oppression by the other branches. Thomas Jefferson explained that "the powers of government should be so divided and balanced among several bodies . . . that no one could transcend their legal limits, without being effectually checked and restrained by the others." Thomas Jefferson, Notes on the State of Virginia, 120 (W. Peden ed. 1955). The Framers therefore sought to prevent tyranny by constructing a government that could limit its own aggrandizement of authority.
The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. [ Myers v. United States, 272 U.S. 52, 293, 47 S. Ct. 21, 85, 71 L. Ed. 160 (1926) (Brandeis, J., dissenting)]
The separation of powers does not require complete insulation of the branches from each other. Such a complete "hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively." Buckley v. Valeo, 424 U.S. 1, 121, 96 S. Ct. 612, 683, 46 L. Ed. 2d 659 (1976). As this Court has stated,
[T]he doctrine of the separation of powers was never intended to create, and certainly never did create, utterly exclusive spheres of competence. The compartmentalization of governmental powers among the executive, legislative and judicial branches has never been watertight. [ In re: Salaries Prob. Off. Bergen County, 58 N.J. 422, 425 (1971)]
Nonetheless, the Framers created a government with three distinct branches, each a separate source of power that could check the abuses of the other branches. It has been the constitutional role of the Court to prevent any of the branches from exercising illegitimate power over the others. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803).
Our State Constitution has a clause that explicitly provides for the separation of powers. Art. III, para. 1 reads:
The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.
This clause expressly provides for separation of state powers in the same way that the Federal Constitution separates the branches of the federal government. Speaking for a unanimous Court, Justice Handler explained recently in Knight v. Margate, supra,
It is a constitutional axiom that each branch of government is distinct and is the repository of the powers which are unique to it; the members or representatives of one branch cannot arrogate powers of another branch. The constitutional spirit inherent in the separation of governmental powers contemplates that each branch of government will exercise fully its own powers without transgressing
upon powers rightfully belonging to a cognate branch. Each branch of government is counseled and restrained by the constitution not to seek dominance or hegemony over the other branches. [86 N.J. at 388]
The Framers sought to establish a government of separated and balanced powers primarily because they feared "that in a representative democracy the Legislature would be capable of using its plenary lawmaking power to swallow up the other departments of the Government." Consumer Energy Council of America, Etc. v. Fed. Energy Reg. Comm'n, 673 F.2d 425, 464 (D.C.Cir.1982) (hereinafter " Consumer Energy "). As the Supreme Court noted in Buckley v. Valeo, supra,
the debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two ...