Gov. Christie Claims Power to Abolish Independent Agencies

More Christie the Unitary Executive. – promoted by Rosi

In a case we at Fair Share Housing Center argued before New Jersey’s Appellate Division last week, the Christie Administration took a sweeping new position: the Governor has the power to abolish any independent agency through the Executive Reorganization Act of 1969, a statute never before interpreted this way. That means that if ELEC, the Board of Public Utilities, or the State Ethics Commission did something that the Governor didn’t like, he could get rid of it, and instead take over the administration of, say, campaign finance law through a cabinet official reporting directly to him.

This case came out of Gov. Christie’s action to abolish the Council on Affordable Housing (COAH) which he said he was doing because he had “always believed that municipalities should be able to make their own decisions on affordable housing” – even in cases in which, say, a local council decides they don’t want disabled veterans in their town.

More below…

Gov. Christie proposed the plan under the Executive Reorganization Act on June 29, 2011. He claims the Legislature in theory had 60 days to veto the plan (but that happened over the summer during recess, when the Assembly didn’t even meet). However, because the Act itself was never intended to include independent “in but not of” agencies like COAH, we argue that the legislative veto process was irrelevant, even if the Legislature had been in session; as has been found under the parallel federal statute which ours was based on, independent boards can’t be abolished through this process, which is designed instead to reorganize the internal workings of departments that are under the control of the Governor, not independent of that control.

After the plan went into effect, Christie dismissed all of COAH’s board members and claimed that his cabinet official, the DCA Commissioner, could make any decision related to state housing policy – without even having public meetings. Instead, policies and decisions would just issue forth as dictates from the DCA Commissioner’s office – as happened when the Commissioner proposed to jettison a range of regulations designed to safeguard public input in mid-September by posting them on a website without public comment (something that the courts already enjoined).

At oral argument last week, the judges asked the attorney arguing the case for the Attorney General’s office if the same process would apply to any other independent agency. She said that it would.

That answer, based on our reading of the law and constitution, is a breach of the basic separation of powers under the New Jersey Constitution, and never what the Legislature intended in passing the Reorganization Act. Article V of the Constitution gave the Legislature, not the Executive, the power to create and modify the boards of independent agencies. Nothing in the Reorganization Act changed that (nor could it without a constitutional amendement).

As we said at oral argument, if the Governor really does have this power, then every time a board member of an independent agency makes a decision, she will be afraid of being fired if she disagrees with the Governor, the exact opposite of the intent of such agencies. No independent agency really would be independent.

We expect a decision sometime in the next few months. If you want to read more, our briefs are available here and here. The Governor’s brief is available here.

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