Sunday, November 1, 2009
Power, authority and JV 2017
The ASUN Constitution establishes an executive branch with limited powers. The executive power is vested in the ASUN President and his subordinates that the Senate may create by law. The President's power, while absolute (in the sense that no other branch holds the executive power), does have limits. Expressly, the Constitution states the President's power extends to enforcing the laws as the Senate writes them ("The President shall take care that the laws be faithfully executed"). This is a limited view of executive power. It is what we had in mind when crafting the current ASUN Constitution. The President does have some constitutionally inherent powers that the Senate can't intrude upon, but most of what the President can do must be prescribed in the laws the Senate passes.
This structure has implications for ASUN President Eli Reilly's Joint Vision 2017 document. Under what authority did the ASUN President create this plan, attach ASUN's name to it (and thus imply institutional support where none exists), and lobby others (the Regents) as if ASUN was behind it? If you view presidential power as George W. Bush does, then you don't need a law authorizing executive activities. Unfortunately, that does not comport with the constitutional realities in ASUN.
Under the correct, limited view of presidential power, a law must authorize the plan's creation. Last I checked, no law authorized the ASUN President to create a plan, much less then attach ASUN's name to it without first consulting with the Senate. JV 2017 represents a lapse in lawful authority.
Now enter Senator Haley Anderton's bill to prohibit individuals from doing what President Reilly did. The bill would do two things: (1) require Senate approval before proposals are presented to the Regents on behalf of "any member of [ASUN] [1]; and (2) require a direct student vote on any proposal presented to the Regents that "could potentially increase student fees." This bill represents the first formal reaction from the Senate. But the mere existence of the bill, much less its passage, presents some problems.
If this bill were to become law, it would imply that, before the bill became law, the activities the bill prohibits were legal. Why write a law to prohibit something if it was never legal in the first place? This could have the effect of giving retroactive approval to Reilly's conduct here. That clearly doesn't seem to be what Sen. Anderton and others have in mind. Also, this bill probably can't apply to JV 2017 because the plan existed before this law was passed.
Current ASUN law provides adequate remedies to this situation, without necessitating the passage of a new law. There's the inherent constitutional limitation I discussed above. You could argue illegal spending in creating JV 2017 under sections 221 and 224 of the Association Budget and Finance Act. You could ask the President to point to which law authorized these activities, likely a difficult task. New law should be created only when existing law is inadequate. An example is when one can properly attach ASUN's name to something. But it isn't the case here; this case deals with views of executive power vis-a-vis the Senate.
I'm glad to see the Senate has sprung into action, but this bill has unintended consequences, and the senators should consider other reasonable options that won't compromise the Senate's position on this issue.
Footnotes.
[1] This language doesn't proscribe the conduct Sen. Anderton probably thinks it does. Do you really want to require Senate approval of any plan presented to the Regents on behalf of any ASUN member (i.e., any undergraduate student)?
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