On Tuesday, Buckingham handed the presiding officers a copy of his draft memo, addressing the constitutionality of P.L. 17-21’s Section 602 that imposes hiring restrictions in fiscal year 2010.
Rep. Froilan C. Tenorio, Covenant-Saipan, earlier raised the same concern, citing the doctrine of the separation of powers.
The administration last week, in compliance with P.L. 17-21, sought the Legislature’s approval for the hiring of over 100 new government employees.
Buckingham, in his draft memo, said Section 602 of the budget law “encroaches upon the constitutional power of the executive branch by requiring that any existing vacant position within the executive branch be approved by the Legislature before being filled.”
Citing Article III of the CNMI Constitution that vests executive powers in the governor, Buckingham said the governor also has the responsibility to appoint department heads with the advice and consent of the Senate. Likewise, these department heads have the authority to hire employees and administer budgets.
The power to approve hiring for positions in the executive branch that become vacant, the attorney general said, “is an executive function and one that the Legislature may not perform.”
“Any statute that purports to confer upon a legislative body the ability to restrict the function of the executive usurps the executive function and contravenes the well-established separation of powers doctrine,” Buckingham said.
He added that this doctrine is anchored in the Covenant, so it is “undisputed” that the constitutional doctrine of the separation of powers applies to the commonwealth.
The Covenant created the CNMI in political union with the U.S.
The separation of powers protects each branch of the government from domination and interference by others, the AG said.
In P.L. 17-21, Buckingham said the Legislature has acted to impose itself into an area outside of its constitutional limitations by requiring the executive branch to obtain approval of the Legislature in order to fill vacant positions.
Thus, Buckingham said, no legislative approval is required for the governor or department head to fill a vacant position that is authorized in the budget law provided that such a position is filled within 180 days.
Buckingham noted that instead of having 180 days to fill the position, P.L. 17-21 demands the governor and department heads to get the approval of the Legislature in filling in vacant positions.
“It is the view of this office that the automatic nature of the effect of [P.L. 17-21’s] Section 602 on budgets, positions, management discretion and executive powers is beyond the authority of the Legislature. What amounts to an automatic elimination of a vacant position also conflicts with the commonwealth’s well-established statutory scheme in this area. Such a limitation on the executive branch works as an arbitrary exclusion from the powers of the executive office and thus, impermissibly interferes with the separation of powers doctrine,” the attorney general said.
His office, he said, concludes that the Legislature has no authority to enact a statute that requires approval in order for the executive branch to fill vacant positions. The hiring restriction provisions in the budget law, he added, are subject to constitutional challenge.
But in an interview, Tenorio said it is not only the hiring restriction provisions that are unconstitutional, but the entire budget law as well.
The Constitution, he noted, mandates a balanced budget.
But the budget is obviously not balanced because there was a $6 million deficit in the first quarter of the fiscal year, he added.
This violation of the Constitution, Tenorio said, has already taken place even without the hiring of new employees.
He doubts if any of the other members of the Legislature will look into this issue.
That is why he urged the administration to start laying off people — because the budget is not balanced, Tenorio said.
