Header, the Administration of the Honorable Lincoln C. Almond
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July 20, 1998


In accordance with the provisions of R.I. Gen. Laws § 43-1-4, I am transmitting herewith, with my disapproval, 98-H 7647, Substitute A, As Amended, "An Act Relating to Health and Safety " The State of Rhode Island Cancer Council, Inc."

This Act would create a new quasi-public agency called the Rhode Island Cancer Council, Inc., "having a distinct legal existence from the state and not constituting a department of state government." The Council would consist of nine (9) members of the public with a general background in cancer care "three of whom shall be appointed by the speaker of the house; three of whom shall be appointed by the senate majority leader; and three of whom shall be appointed by the governor." As such, six (6) of the nine (9) commission members would be appointed by General Assembly leaders. The Council would possess broad executive powers to: 1) amend and revise, in its sole discretion, the existing Department of Health Statewide Cancer Plan; 2) "accept, transfer and allocate funds made directly available to the council" from all federal, state and private sources; 3) "grant or loan funds to private and public groups" for cancer-related purposes; and 4) employ personnel, including an executive director, and contract with consultants. No employee of the Council would be subject to the State's civil service system or merit protection law. In addition to its executive power, the Council would perform numerous advisory, coordination and cooperative functions relating to statewide cancer policy. The 1998 State Budget allocates $250,000 for the Council to spend this fiscal year.

Using the resources of the State to assist In providing cancer care, research, prevention, detection and education is a goal I wholeheartedly support. Providing such assistance in conformity with the requirements of the Rhode Island Constitution is an equally important duty, and one which I took an oath to uphold. I reluctantly veto this bill because its legislative appointment provisions violate the constitutionally-mandated separation of powers among the three branches of Rhode Island State government.

In our system of government the legislature enacts the law, the executive branch enforces the law and the judiciary interprets the law. Soon after the adoption of our Constitution in 1843, the Rhode Island Supreme Court held that separation of the powers of the three branches of Rhode Island government was "the great principle of American liberty." Over a century ago, the Supreme Court of the United States declared that the separation of powers doctrine prohibits legislative appointments of sitting members and their appointees to enforce the laws passed by the legislature as a whole. The Court was following the lead of the framers, including James Madison, who stated that "I conceive that if any power whatsoever is in the nature of the executive, it is the power of appointing, overseeing and controlling those who execute the laws." 1 Annals of Congress, 481-82 (1789). As the Court more recently held in Buckley v. Valeo, 424 U.S. 1, 140 (1976), "Legislative power ... is the authority to make laws, but not the power to enforce them or appoint the agents charged with the duty of such enforcement."

The rationale for the rule is both simple and powerful. Essential to the Governor's power and central constitutional obligation "to take care that the laws be faithfully executed" is his ability to appoint and manage those who carry out General Assembly enactments. There is no dispute that the legislature possesses great power in unilaterally establishing administrative agencies to carry out laws, setting the number of members and the terms of those members, and defining the scope of their duties and powers. With this power exercised, however, the constitutional power of the legislature ceases and the executive branch's right and duty to appoint those who enforce the laws begins- Without that line, the separation of the executive power from the legislative vanishes, as does any check or balance on the legislature's power with respect to the functioning of pubic boards.

It is the doctrine of separation of powers that prevents members of Congress or their appointees from serving on the new Internal Revenue Service Review Commission. Congress properly created the commission and defined its executive duties. It did not and could not appoint those charged with the enforcement of the law. Unfortunately, the Cancer Council Act oversteps the legislative role. The General Assembly properly exercised its lawmaking power by establishing a Cancer Council, funding the Council, and defining the duties and powers of the Council. What the General Assembly may not do is appoint its own members or others to carry out the law it has passed, in this case to carry out the Cancer Council Act.

The issue is not one of who appoints; rather, the issue is whether the Governor is able to exercise his power and constitutional responsibility to faithfully execute the law. The General Assembly properly makes hundreds of appointments of its own members and others to various boards and commissions dealing with a broad range of topics. These boards, however, do not exercise executive power. One example of such a board is the Administrative Adjudication Court Task Force. The Task Force exercises no executive power. Its sole authority is to gather facts, study, and recommend and advise on a course of action. The Task Force possesses no lawmaking power, no enforcement power and no adjudicative power whatsoever. The presence of legislators or their appointees on this or any other study commission without executive powers is perfectly constitutional and in most cases entirely appropriate.

Such commissions function in a fashion largely akin to a legislative subcommittee. Their power is to advise on what the law should be, not to carry out laws which already exist.

Several such boards were created by the General Assembly this session and I allowed each to become law. Even before this session, properly-constituted boards existed throughout government. To name a few: Advisory Commission on Aging, R.I. Gen. Laws § 42-66-7; Advisory Council to Veteran Affairs, R.I. Gen. Laws § 30-24-3; Commission on Professional Boxing, Wrestling and Kick Boxing, R.I. Gen. Laws § 41-5.1-1; Home and Community Care Services Advisory Committee for the Elderly, R.I. Gen. Laws § 42-66.3-8; In-Home and Service Care Advisory Committee for the Elderly, R.I. Gen. Laws § 42-66.3-8; Long-term Care Insurance Advisory Council, R.I. Gen. Laws § 27-34.2-18; Minority Groups Advisory Commission, R.I. Gen. Laws § 42-77-1; Public Drinking Water Supply Advisory Council, R.I. Gen. Laws § 46-13-21; and Public Records Advisory Council, R.I. Gen. Laws § 38-3-3.

The presence of legislative appointees on the Cancer Council would not run afoul of the separation of powers doctrine if the Council possessed only advisory powers; that is, the power to recommend to the Department of Health changes to the Statewide Cancer Plan and to recommend that certain loans or spending be made. Rather than determine the recipients and amounts of grants, the Act would provide only the power to recommend to the General Assembly that it make certain grants. Instead of the power to hire support services, the Act should provide the Council with those services through the Department of Health. This Act, however, provides the Council itself with hiring, spending and final decision-making power. Such power, after parameters are set by the General Assembly as a whole, is the province of the executive branch of State government. If the General Assembly insists the Cancer Council exercise executive power, then there is no reason why it could not place the program in ' the Department of Health and provide the necessary funding and starring (under the civil service system) there. If use of a non-state agency were a requirement for receipt or distribution of certain funds, the State could provide financial assistance to a non-profit corporation.

Finally, if the General Assembly remained adamant in the creation of a new quasi-public corporation with executive powers, then it need only to eliminate its appointments to this entity. There is no legitimate need to establish a legislatively-controlled council to deal with cancer issues in Rhode Island. The composition of this Council is even more troubling with the question of the constitutionality of legislative appointments to such commissions squarely before the Rhode Island Supreme Court today.

For the foregoing reasons, I disapprove of this legislation and respectfully urge your support of this veto.


Lincoln Almond