AGO 1991 No. 21 - Jun 11 1991
GOVERNOR ‑- EXECUTIVE ORDER ‑- LEGISLATURE ‑- WETLANDS ‑- AUTHORITY OF GOVERNOR TO ISSUE EXECUTIVE ORDER HAVING THE FORCE AND EFFECT OF LAW
The legislative authority of the State of Washington is vested in the Legislature. In absence of a statute or constitutional provision that serves as a source of authority authorizing the Governor to act, the Governor cannot create obligations, responsibilities, conditions or processes having the force and effect of law by the issuance of an executive order.
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June 11, 1991
Honorable George L. Sellar
State Senator, District 12
312 Legislative Building, AS-32
Olympia, Washington 98504
Cite as: AGO 1991 No. 21
Dear Senator Sellar:
By letter previously acknowledged you have asked for our opinion regarding the Governor's authority to issue executive orders. In particular, you have directed our attention to Executive Order 90-04. This order was issued by Governor Gardner on April 21, 1990, and it relates to the protection of wetlands. We paraphrase your question:
Can a Governor, without statutory authority, create obligations and responsibilities having the force and effect of law by issuing an executive order for the protection of wetlands?
The answer to this question is no.
[[Orig. Op. Page 2]]
We begin our analysis with two preliminary observations. First, while governors frequently issue statements which are entitled "executive order," these statements serve a wide variety of purposes. There are three basic types of statements commonly labeled as "executive orders" and a single "executive order" may combine elements from each type. The three basic types are:
1.General Policy Statements. An executive order may be a general policy statement made by the Governor. The order does not have the force and effect of law. The purpose of such an order is to persuade or encourage persons, both within and without government, to accomplish the Governor's policy set out in the order.
2.Directives. An executive order many be a directive from the Governor to state agencies, communicating to those agencies what the Governor wants the agency to accomplish. The order does not have the force and effect of law. However, compliance by state agency heads who serve at the pleasure of the Governor is normally expected. If such an agency head does not comply with the Governor's policy enunciated in the order, the Governor may decide to remove the agency head from office.
3.Operative Effect. An executive order issued by the Governor may require that certain actions be taken. Such an order has the force and effect of law and serves as a source of authority for actions taken in response to the order.
Your question focuses on the third type of order and presents two interrelated legal issues:
(1) Does the Governor have the authority to create legally binding obligations or conditions having the force and effect of law by issuing an executive order for the protection of wetlands?
(2) Does the Governor have the authority to override statutes enacted by the Legislature, by issuing an executive order for the protection of wetlands?
Both of these issued relate to the Governor's power to issue executive orders that have operative effect. For this reason we have combined these issues into a single question.
Our second preliminary observation relates to executive orders that have operative effect. In certain situations the Legislature has enacted statutes that specifically authorize the Governor to issue orders that have operative effect. For [[Orig. Op. Page 3]] example, RCW 43.06.010(12) authorizes the Governor to declare a state of emergency under certain circumstances. Once the Governor has declared an emergency, RCW 43.06.220 empowers the Governor to issue orders related to the emergency such as establishing a curfew. RCW 43.06.220 also provides that: "Any person wilfully violating any provision of an order issued by the governor under this section shall be guilty of a gross misdemeanor."
In such situations executive orders have the force and effect of law and serve as a source of authority for those who act in response to the orders. However, the ultimate authority is a delegation of power by the Legislature to the Governor in a statute. As the court said inCougar Business Owners Ass'n v. State, 97 Wn.2d 466, 474, 647 P.2d 481 (1982), which concerned Governor Ray's executive order establishing the red zone around Mt. St. Helens: "These statutory powers evidence a clear intent by the Legislature to delegate requisite police power to the Governor in times of emergency."
Your question concerns an executive order pertaining to the protection of wetlands. We have reviewed Executive Order 90-04 and the statutes relating to the protection of wetlands. We find no statute similar to RCW 43.06.220 that authorizes the Governor to issue orders relating to the protection of wetlands, which have the force and effect of law. Thus, the essence of your question is whether the Governor, in the absence of specific statutory authority, can create obligations and responsibilities for the protection of wetlands having the force and effect of law by the issuance of an executive order. In our judgment the answer to this question is no.
The only Washington case directly on point is Young v. State, 19 Wash. 634, 637, 54 Pac 36 (1898), wherein our Court adopted the view that the Governor possesses only those powers as are conferred upon the office by constitutional or statutory provisions. While there are a number of references to the Governor in the Constitution, we believe that the pertinent provisions to your inquiry are in article 3. Section 2 declares "[t]he supreme executive power of the state shall be vested in a governor . . . ." Section 5 states that the Governor may require information in writing from the officers of the state upon any subject relating to the duties and the obligation of their respective offices. The same section also directs the Governor to "see that the laws are faithfully executed." Article 3, section 6 authorizes the Governor to communicate messages to the Legislature concerning "the condition of the affairs of the state" and grants authority to "recommend such measures as he shall deem expedient for their action."
[[Orig. Op. Page 4]]
InYoung v. State, the court concluded that neither constitutional provisions nor any statute authorized the Governor's action challenged in that case. The court held that the Governor lacked legal authority and ruled that his powers were limited to those conferred by either constitutional or statutory provision.1/
In this case, there is no statutory authority authorizing the Governor to issue an executive order for the protection of wetlands that has the force and effect of law. Accordingly, we must examine the Governor's power under the Washington Constitution.
The Constitution treats in separate articles executive legislative powers.2/
In discussing the extent of the Governor's power that is not dependent upon legislation, it is necessary to consider the interrelation of constitutional powers between the Governor and the Legislature.
Article 2, section 1 (amendment 72) of the Washington Constitution, provides: "The legislative authority of the state of Washington shall be vested in the legislature . . . ."3/
By virtue of a state's police power, the legislative branch of government has all legislative powers not withheld or limited by the Constitution. In other words, the Legislature may enact into [[Orig. Op. Page 5]] law any measures which are not expressly or by necessary implication prohibited either by the State Constitution or Federal Constitution. Fain v. Chapman, 89 Wn2d 48, 53, 569 P.2d 1135 (1977). Under the separation of powers doctrine, only the Legislature may undertake to perform legislative acts. Such power is not vested by the Constitution in the executive who, therefore, cannot act in a legislative manner without an appropriate delegation of authority from the Legislature.
Executive power given to the Governor by Washington's Constitution closely resembles, for obvious historical reasons, similar powers given to the President by the Federal Constitution. Thus, the Question of the extent of presidential power has instructive value in the interpretation of a state's Constitution with respect to the powers of its chief executive officer. Brown v. Barkely, 628 S.W.2d 616, 622 (Ky. 1982); Chang v. University of Rhode Island, 375 A.2d 925, 928, 118 R.I. 631 (1977).
The leading case regarding the extent of executive power under the Federal Constitution isYoungstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 96 L. Ed. 1153, 72 S. Ct. 863 (1951). The majority opinion rejected the argument that President Truman's authority to seize the steel mills could be implied from the aggregate of executive powers delegated to the President under the Constitution. While the President has the power to see that the laws are faithfully executed, that power does not confer the authority to affirmatively be a lawmaker. Justice Black, speaking for a majority of the Court, stated:
The Constitution limits his (the President's) functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. . . .
The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress‑-it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies of rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution.
[[Orig. Op. Page 6]]
343 U.S. at 587-88.
Justice Jackson's concurring opinion, in Youngstown, posited three kinds of "practical situations in which a President may doubt, or others may challenge, his powers". 343 U.S. at 635.
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. . . .
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
343 U.S. at 635-38.
As previously discussed, under Young v. State the Washington court is committed to the view that the Governor lacks inherent power except as delegated by the Constitution or a statute.
Under the approach of either Justice Black or Justice Jackson inYoungstown, the President likewise possesses no [[Orig. Op. Page 7]] inherent power to issue executive orders which have the force and effect of law. According to Justice Black, presidential authority must be predicated upon some provision of the Constitution, or an act of Congress. 343 U.S. at 585, 587-88. Under Justice Jackson's approach, even an emergency would not justify issuance of an executive order, having the force and effect of law, absent an act of Congress authorizing it. He explained:
In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute.
343 U.S. at 653.
The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. . . . With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.
343 U.S. at 655.
Similar expressions have been made by state courts respecting the Governor's authority to, by order, create legally binding obligations or conditions. We will briefly note such decisions from Alabama, Kentucky, Massachusetts, New Jersey, New Hampshire, New York, Pennsylvania and Rhode Island.
InChang v. University of Rhode Island, 375 A.2d 925, the issue was whether Rhode Island's governor could, by executive order, override a directive of the legislature. The court concluded:
The governor lacked authority to act with respect to that subject (of his executive order). By express constitutional grant, that power belonged to the Legislature; and it had delegated a portion thereof to the Board of Regents, not to the governor.
375 A.2d at 929.
[[Orig. Op. Page 8]]
InBrown v. Barkley, 628 S.W.2d 616, the Supreme Court of Kentucky indicates that even if the governor be deemed to possess "inherent" powers, such powers are subordinate to statute.
This means, we think, that when the General Assembly has placed a function, power or duty in one place there is no authority in the Governor to move it elsewhere unless the General Assembly gives him that authority.
628 S.W.2d at 623.4/
In Pennsylvania inPagano v. Pennsylvania State Horse Racing Comm., 413 A.2d 44, 45, 50 Pa. Commw. 499 (1980), the Court held that proclamations or communications issued as executive orders without authority "cannot be enforced by the courts." Such proclamations are of the two types we earlier noted (general policy statements and directives) when we referred to the variety of what are commonly denominated as executive orders. See infra at 2-3. See also Wilt v. Department of Rev., 436 A.2d 713, 714, 62 Pa. Commw. 316 (1981).
New Jersey law requires that an executive order must find support for its validity either in the constitution, statutes or "a state of facts which gives rise to an emergent situation". De Rose v. Byrne, 343 A.2d 136, 144, 135 N.J.S. 273 (1975).
Although somewhat ambiguous on the point, Alabama law provides that the governor possesses no authority to issue executive orders in the absence of a clear grant of power from the legislature or the Constitution. An executive order was invalidated which conflicted with a statute on the ground of gubernatorial lack of authority. Jetton v. Sanders, 275 So.2d 349, 352, 49 Ala. 669 (1973).
Some jurisdictions recognize inherent gubernatorial power but, in all cases, the exercise of an inherent power may not derogate from a valid exercise of legislative power.
[[Orig. Op. Page 9]]
Massachusetts recognizes inherent executive powers in the office of governor. This authority of the governor to nominate and appoint judicial officers conferred by the state constitution provided an adequate basis for an executive order creating a judicial nomination commission to make recommendations to him to fill judicial vacancies. Opinion of the Justices to the Council, 334 N.E.2d 604, 609, 368 Mass. 866 (1975). However, the Massachusetts governor may not, by executive order, suspend or modify the operation of duly-enacted legislation. Massachusetts Bay Transp. Auth. Advisory Bd. v. Massachusetts Bay Transp. Auth., 417 N.E.2d 7, 13, 382 Mass. 569 (1981).
New Hampshire has a similar view to that of Massachusetts but has ruled that inherent executive power may not be used to frustrate valid legislative enactments. Opinion of the Justices, 381 A.2d 1204, 1208, 118 N.H. 7 (1978). Thus, where there is a conflict between an executive order and a statute, the statute must prevail. O'Neil v. Thompson, 316 A.2d 168, 173, 114 N.H. 155 (1974). Where no conflict between an executive order and legislation was found, the executive order was upheld. The Court "presumed" that the governor was within the exercise of his constitutional powers in the absence of conflicting legislation. Opinion of the Justices, 392 A.2d 125, 130, 118 N.H. 582 (1978).
In New York when the executive acts in a manner inconsistent with the legislature "or usurps its prerogatives," the doctrine of separation of powers is violated. Inherent power to determine methods of enforcement of existing law is accorded the executive, but executive orders have been struck down in the absence of legislative authorization. Clark v. Cuomo, 486 N.E.2d 794, 495 N.Y.S.2d 936, 939-40 (1985). CompareHase v. Civil Serv. Dep't, 535 N.Y.S.2d 338, 340-341, 141 Misc.2d 868 (1988).
Based on these authorities, we reach two conclusions. First, the Governor cannot by an executive order, create an operative effect that conflicts with a statute enacted by the Legislature. The authorities we reviewed are essentially unanimous on this point. Second, in absence of a statute authorizing the Governor to act (e.g., RCW 43.06.220), the Governor cannot create obligations, responsibilities, conditions or processes having the force and effect of law by the issuance of an executive order. This is true even if the order does not conflict with a statute enacted by the Legislature. We acknowledge that some states such as Massachusetts and New Hampshire recognize some inherent executive power in the office of governor. However, in 1898 the Washington Supreme Court declined to follow this path when it decidedYoung v. State.
Accordingly, it is our opinion that the Governor does not have the authority to create obligations and responsibilities, [[Orig. Op. Page 10]] having the force and effect of law, for the protection of wetlands by issuing an executive order. More specifically, Executive Order 90-04 does not have operative effect. It does not have the force and effect of law and cannot serve as a source of authority for persons or agencies that take action with regard to wetlands.
Executive Order 90-04 merely serves the general policy statement or directive function we discussed at the outset of this opinion. For example, Section 1 of the order states: "All state agencies shall rigorously enforce their existing authorities to assure wetlands protection". This section does nothing more than set out the Governor's policy with regard to wetlands. Many of the sections in Executive Order 90-04 expressly state that agencies shall exercise their authority to protect wetlands "to the extent legally permissible."5/
Other sections of the order are more specific but these specific sections have no more operative effect than Section 1. For example, Section 12 provides a definition of mitigation to be used by state agencies with the first preference being to avoid "the impact altogether by not taking a certain action or part of an action" to the least preferred definition, "monitoring the impact and taking appropriate corrective measures". This section does not establish as a matter of state law either a definition of mitigation or a priority of preferences. It is simply a policy statement by the Governor of which options are preferable, if there is a choice between those options. Individual agencies for various programs may not have the statutory authority to avoid "the impact altogether by not taking any action." If so, the first preference expressed by the Governor is simply not available legally to that agency for that particular program. Agencies also may have in their statutes other orders of preference expressed. For example,see RCW 90.58.020 of the Shoreline Management Act reflecting a specific order of preference.
In summary, the Governor does not, by the issuance of an executive order for the protection of wetlands, have the authority to create obligations and responsibilities having the force and effect of law. Executive Order 90-04 can only be read as a general policy statement by the Governor and/or a directive communicating the Governor's policy to agency heads that serve at the Governor's pleasure. However, it is not a source of authority for agencies to take action with regard to wetlands.
[[Orig. Op. Page 11]]
The only authority for agency action are statutes duly enacted by the Legislature.
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
WILLIAM B. COLLINS
Assistant Attorney General
*** FOOTNOTES ***
1/Young v. State was distinguished but cited with approval inState ex rel. Hartley v. Clausen, 150 Wash. 20, 25, 272 Pac. 22 (1928), which viewed the source of authority more broadly than was done inYoung, but both cases recognize a need to find a source of authority.
2/The Governor's veto authority is confirmed in article 3, section 12, which pertains to the executive. However, when the Governor exercises the veto power, he is acting in a legislative rather than an executive capacity. Washington Ass'n. of Apartment Ass'ns. v. Evans, 88 Wn.2d 563 565, 564 P.2d 788 (1977).
3/Prior to amendments, article 2, section 1 originally read:
The legislative powers shall be vested in a senate and house of representatives, which shall be called the legislature of the State of Washington.
[Constitution of Washington, 1889.]
4/See also, Legislative Research Comm. v. Brown, 664 S.W.2d 907 (Ky. 1984) which reaffirms the separation of powers doctrine (that the legislative branch has all powers which are solely and exclusively legislative in nature). 664 S.W.2d at 913. Kentucky adopts the view that gubernatorial power is limited to that conferred by the Constitution or duly enacted legislation. Martin v. Chandler, 318 S.W.2d 40, 44 (Ky. 1958).
5/Sections 2, 3, 4, 6, and 13.