Constitutional exegesis is all the rage in Washington these days, with Senate letters written explaining our system and federalism arguments flying at the Supreme Court. Yet we have our own constitutional issues playing out in Maine, with the Governor’s request to the Supreme Judicial Court for an opinion on his legal relationship with the Attorney General.
Some scoffed when he challenged the AG. I’m sure he’s pleased with the outcome, although it leaves some questions open for another day. However, setting aside the political analysis for a moment, there are a few peculiar statements in the opinion which deserve more consideration.
Social studies teachers throughout the state sit their students down – or set a Schoolhouse Rock video before them – and explain our system of checks and balances, and how the three branches of government work. State governments generally follow that model.
Yet, today, the Law Court created a phantom fourth branch. In their opinion, the Justices state:
“The Attorney General therefore occupies an office that does not fall within any particular branch of government.”
This strikes me as a statement of convenience, allowing the Court to express its opinion without wading into sticky constitutional issues. A different finding would implicate the plain language of Article V, Part First, Section 1. Additionally, as an Opinion of the Justices is advisory in nature, it does not have precedential authority. Why open a can of worms if you don’t have to?
Yet if a case or controversy is ever squarely put before the Law Court on the relationship between the Governor and the Attorney General, this formulation will be difficult to support. The State Constitution spells out quite clearly in Article III:
Section 1. Powers distributed. The powers of this government shall be divided into 3 distinct departments, the legislative, executive and judicial.
Section 2. To be kept separate. No person or persons, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directed or permitted.
The Court does not cite this in their opinion, nor do they attempt to resolve the contradiction it presents. But it seems to preclude a finding that the Attorney General is not a member of one of those 3 departments. Assuming for the sake of argument that the constitution provides for the Attorney General to exercise powers properly belonging to multiple departments, the office itself must exist within one of the departments.
Further, the Justices write:
“The office of Attorney General…[is] an office created by the Maine Constitution.”
This is true in part, but warrants closer inspection. Article IV creates the Legislature and describes their duties, while Article VI creates the Supreme Judicial Court, describes their duties, and empowers the legislature to create lesser courts. Meanwhile, Article V vests “supreme executive power” in the Governor, while simultaneously creating the other executive department offices of Secretary of State and Treasurer and describing their duties.
The Attorney General is mentioned only twice, both in Article IX. Once it is referenced as an office which may not be concurrently held with other offices, and the second reference describes only the manner of election. All duties and powers of the Attorney General derive from common law or statute, not the constitution.
What does all this mean? Realistically, not much. The Court answered the question it had to and punted on the questions it did not want to answer. It isn’t binding, but serves merely as a guidepost should the Governor and AG continue to fight.
What does it matter? Maybe it seems old-fashioned, but the Maine Constitution is the bedrock of our government, outlining the rules and protecting our rights vis-a-vis the state. Getting it right is important. You can’t play a sport without agreeing on the rules of the game; government is no different.
What is the solution? Let’s amend the constitution and clarify the roles of these officers and improve their selection process. If we can get everyone in Augusta to row in the same direction, we just might get somewhere.