The Legislative Veto Cases

On this date in 1982, the Supreme Court of New Jersey decided two of the landmark separation of powers cases in New Jersey jurisprudence.  The first case was General Assembly v. Byrne, 90 N.J. 376 (1982).  There, the Court ruled unanimously that a legislative veto provision in the Legislative Oversight Act, N.J.S.A. 52:14B-4.1 to -4.9, was unconstitutional.  The statute allowed the Legislature to veto by a concurrent resolution of both houses “[e]very rule hereafter proposed by a State agency,” with certain limited exceptions.

Justice Pashman’s opinion for the Court held that this “extremely broad legislative veto” violated Article III, paragraph 1 of the New Jersey Constitution, which explicitly provides for the separation of powers.  The statute gave the Legislature “excessive power to impede the Executive in its constitutional mandate to faithfully execute the law.”  The legislative veto “can gravely impair the functions of agencies charged with enforcing statutes.”  This “vice lies not only in its exercise but in its very existence,” since “[f]aced with potential paralysis from repeated uses of the veto that disrupt coherent regulatory schemes, officials may retreat from the execution of their responsibilities.”

This legislative veto also violated the Presentment Clause of the New Jersey Constitution, Article VI, section 1, paragraph 14, which requires every bill that passes both legislative houses to be presented to the Governor, for signature or objection.  The Court ruled that this legislative veto “offends the Constitution because it is tantamount to passage of a new law without the approval of the Governor.”   

Justice Pashman’s opinion emphasized, however, that it was limited to “the all-inclusive veto presented in this case.  In other contexts legislative cooperation or sharing of powers may be essential to further a statute’s purpose.  Under appropriate circumstances, the Legislature can cooperate with the Executive without violating the separation of powers.”  Justice Pashman then cited Enourato v. N.J. Building Authority, 90 N.J. 396 (1982), also decided 29 years ago today.

In Enourato, a New Jersey resident taxpayer who leased land to the State challenged the constitutionality of the New Jersey Building Authority Act, N.J.S.A. 52:18A-78.1 to -78.32 (“NJBAA”).  That statute allowed the Legislature “to veto building projects and lease agreements proposed by the New Jersey Building Authority,” an agency established to build and operate office facilities for state agencies.  All actions of the Authority first required the Governor’s approval.  Then, the NJBAA allowed the Legislature to veto Authority actions if the estimated cost of a project at issue exceeded $100,000.  The statute also required, after the consent of the Governor, the approval of the presiding officer of each house of the Legislature of every lease agreement between the Authority and a state agency.

Enourato contended that these provisions of the NJBAA violated the separation of powers, the Presentment Clause, and the Debt Limitation Clause of the New Jersey Constitution, Article VIII, section 2, paragraph 3.  His suit was filed one day before the Authority was scheduled to sign a contract for the sale of $135 milion in bonds.  The case proceeded through the lower courts on a dramatically expedited schedule and reached the Supreme Court five weeks after the complaint was filed.

Justice Pashman wrote the opinion in Enourato too.  Three other Justices joined that opinion.  Justices Schreiber and Clifford filed a separate opinion dissenting in part and concurring in part. 

The majority found no constitutional violation in this more limited legislative veto scheme.  Unlike in General Assembly v. Byrne, “the veto provisions in the [NJBAA] are limited in scope and do not empower the Legislature to ‘revoke at will portions of coherent regulatory schemes.'”  The veto could not disrupt executive functions since, among other things, the Governor already had “full control over Authority decision making.” 

Moreover, the Authority’s projects required legislative appropriations.  Justice Pashman concluded that the NJBAA’s legislative veto provisions dovetailed with the Legislature’s appropriations function.  The veto option was a sort of advance (if tentative) approval of funding, since “if the Legislature does not veto a particular project and thereby approves it, this action will constitute a strong, if not compelling, basis for the Legislature to continue to appropriate sufficient money to support the project,” rather than to “bankrupt the Authority and force it to default on its obligations.”

The fact that either house, or the presiding officer of either house, could veto projects was “more troubling” because those provisions tended to frustrate the overriding objective of bicameralism. Nonetheless, since “the delegated authority is narrowly limited,” the NJBAA did not offend the Constitution. 

Justice Pashman quickly dispatched the Debt Limitation Clause argument.  The Authority’s obligations were not debts of the State.  Therefore, the Debt Limitation Clause did not apply.  The Authority could issue its bonds.

Justices Schreiber and Clifford believed that the NJBAA violated the separation of powers and the Presentment Clause, substantially for the reasons stated in General Assembly v. Byrne.  They would have severed the legislative veto provisions from the rest of the NJBAA, upheld the statute as so revised, and allowed the bond sale to proceed.  Those two Justices agreed that the Debt Limitation Clause had not been violated.