Got limits on power?

Legislative bigwigs say ‘No’

By Geoffrey Lawrence
  • Thursday, November 5, 2009

"The price of freedom is eternal vigilance." — Thomas Jefferson

The United States' Constitution is replete with legal limits on the federal government's power. Article I, Section VIII delineates the powers assigned to the federal government, while the Tenth Amendment clarifies that all the powers not "enumerated" in the body of the Constitution are reserved "to the States respectively, or to the People." Together, these provisions create a legal framework establishing the legitimate powers of the federal government.

So what does that mean? Absolutely nothing without a vigilant citizenry that is willing to constantly challenge the authority of questionable government actions.

With increasing frequency, the federal government has stepped outside the bounds set for it by the Constitution to legislate on issues that were traditionally reserved for state or local governments. This never-ending expansion of federal power is rarely challenged. Presidents and congressmen from all parties have boldly marched together toward a brave new world free of limitations on their power. Indeed, federal encroachment may be the only true "bipartisan initiative" in Washington.

However, one does not need to travel all the way to the Washington Beltway in order to see government officials testing the legal boundaries that were designed to restrain their actions. Constitutional limits are regularly under heavy assault from lawmakers right here in the Silver State.

Nevada's legislative Interim Finance Committee has arguably been operating outside the state's constitutional framework for years, but has recently stepped it into high gear. The ostensible purpose of the IFC is to allocate Contingency Funds to state agencies that have cost overruns for specific purposes such as utilities. However, the IFC's very existence most likely violates the Equal Protection clause under the Fourteenth Amendment to the U.S. Constitution. That's because the 21 members of the IFC make decisions on government spending without the consent of the entire legislature. This effectively disenfranchises two-thirds of the state and, because spending is inevitably tied to taxation, amounts to taxation without representation.

Further, IFC members have recently undertaken to violate the limits on legislative power that are explicitly delineated in the state constitution. The Nevada Constitution clearly states that, "Any legislative action taken after midnight Pacific standard time on the 120th calendar day [of the legislative session] is void, unless the legislative action is conducted during a special session convened by the Governor." In spite of this unambiguous constitutional provision, the IFC has already taken legislative action since the conclusion of the 2009 Legislative Session. Moreover, that extra-legal action was taken to overturn a decision that was made through the constitutionally prescribed legislative process.

In June, Governor Gibbons vetoed Senate Bill 143, which would have funded a proposed tax study. That veto was never overridden by the full legislature, meaning that the funding contained in the bill had been legally defeated. 

However, the IFC has decided to allocate Contingency Funds to pay for the tax study, issuing a request for proposals on September 1 and unanimously selecting Moody's Analytics to perform the study on October 28. This amounts to a unilateral enactment by one branch of government of legislation that was defeated by constitutional means.  Clearly, that action violates the constitutional prohibition against legislative action outside of a formal legislative session.

The shenanigans occurring in the IFC should make it clear that legal limits on government power are a necessary but insufficient condition for limiting governmental tyranny. Mere existence of the law is not always enough to constrain government officials into respecting the constitutional limits on their authority. Without a vigilant citizenry, the rule of law is meaningless and can easily devolve into the autocratic rule of man. If politicians are to behave, they must be constantly confronted with an informed and engaged citizenry.

Hopefully, IFC members will feel that pressure soon. Laws are being broken. 

It's time for even those at the seat of power to be held accountable under the law.

Geoffrey Lawrence is a fiscal policy analyst at the Nevada Policy Research Institute.

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