In 1975, the legislature enacted a couple of statutes, one having to do with medical care for minors, and the other with certain property rights. The legislature did not attach an emergency preamble to either statute, so under the usual rules, they would have gone into effect in 90 days. The Governor, however, wanted them to go into effect immediately, so he asked the SJC whether he had the power to make that happen by filing an emergency letter. (You will note that this is precisely the factual scenario set up by the interim Senator law.)
Although Governors had been filing emergency letters to make such statutes take effect immediately for many years, the Governor requested an opinion from the SJC as to whether he had the authority to do so. The SJC recited the question as follows:
Grave doubt exists whether an emergency letter by the Governor may constitutionally cause the law with respect to which it is filed to take effect forthwith on the date of filing the letters, and this doubt extends to all laws for which emergency letters have been filed in the past by the Governor and his predecessors in office. Accordingly the Governor requests the opinion of the Justices on the following questions:
“1. Would appropriate gubernatorial emergency letters filed with the Secretary of the Commonwealth as provided in Amendment Article 48, The Referendum, Part II, of the Massachusetts Constitution, cause Chapter 564 and Chapter 573 of the Acts of 1975 to take effect forthwith on the date of such filing?
“2. Are the effective dates of laws, which by their terms do not state when they shall take effect, the respective filing dates of appropriate gubernatorial emergency letters?”
The SJC started off its analysis by noting that “[t]he answer to this question is not free from doubt.” But the doubt did not last long (emphasis mine):
The words in the last sentence of The Referendum, II, “then such law, if not previously suspended as hereinafter provided, shall take effect without suspension . . .” may possibly be read as indicating that the ninety-day waiting period may not be terminated by a Governor’s declaration made prior to the ninetieth day, that the declaration serves only to prevent suspension after that day. But we think the better reading is that such a declaration brings the law into effect immediately.
The SJC noted that a previously-decided case had established that “a declaration may validly be made before any referendum petition is filed,” thereby eviscerating any possible claim that the Governor may act only to stave off suspension due to a referendum actually going forward. (Of course, that didn’t stop the MA GOP from making that exact claim this time around.)
The SJC then rejected any claim that the Governor’s acting in this way was contrary to the original intent of Article 48:
The interpretation favorable to the Governor’s power is not contradicted by anything in the records of the Constitutional Convention of 1917-1918 which framed art. 48 of the Amendments, although it is not much strengthened by those records. The gubernatorial authority to forestall or undo the suspensive effect of a referendum petition was imported into art. 48 as one of the means of providing some check on the power of a small minority of the voters to nullify adopted legislation until the next eligible Statewide election. But the exact desired extent of the gubernatorial power was not delineated, nor was the precise meaning of the language used. [A footnote here notes that “the debate touching on the emergency section of the amendment was ‘casual and uninformative.'”] There was concern about the Governor’s intruding on the legislative province, but, as already indicated, the decision to allow the Governor to erase the suspensive effect of a referendum petition, when the Legislature had not acted by an emergency preamble, could be seen as a larger step than the mere matter of precipitating the effective date of a law.
Finally, the Justices were “[m]indful that ‘the long continued practice by another branch of our tripartite government is entitled to very great weight in interpreting what art. 48 requires,'” and therefore “look[ed] to the practice over the years.” They noted that since Article 48 went into effect in 1919, Governors have filed numerous emergency letters, and everyone assumed that such letters caused the statutes to go into effect immediately; no one had ever seriously questioned the Governor’s authority in that respect.
Again, the Justices’ bottom line:
The net result of our opinion is to confirm in the Governor an emergency power similar to that of the Legislature when it enacts an emergency preamble. This seems not inappropriate for the “supreme executive” officer of the Commonwealth (Mass. Const. Part II, c. 2, Section 1, art. 1) charged with carrying the laws into effect.
It’s clear from reading the MA GOP’s lawsuit that they (a) don’t understand what a “referendum” is (since they don’t understand the deadlines, as explained in my previous post), and (b) didn’t bother to read the Opinion of the Justices upon which their lawsuit relies very carefully (if they read it at all), since that Opinion answers the very question they’re posing. Which leads one to ask: who prepared this lawsuit, anyway? Party Chair Jennifer Nassour signed the papers herself; she is a lawyer, but I have no idea what her practice is. Apparently it doesn’t have much to do with state constitutional law, though, because this thing is ridiculous, as I hope the judge will make clear in the next 45 minutes or so.