During the last few sessions of the Legislature, we have seen an increasing interest in teaching civics to the upcoming generation. Now North Dakota has an upcoming civics lesson for everyone.
Whether we are interested in civic lessons or not, and most people are not, we can learn something about separation of powers when the Legislature goes to the Supreme Court to challenge Governor Doug Burgum’s vetoes of six or seven bills passed in the 2017 session.
Whether the Governor is sustained by the Court or not, his effort is commendable and will make a substantial contribution to the preservation of the doctrine of separation of powers. He is letting the Legislature know that there are four branches of government in North Dakota and each must fight encroachment by the others.
Actually, the breadth of the governor’s constitutional power to line item portions of bills has been not been tested. With both branches of government in the hands of the same party for decades, governors have shied away from rocking the boat. This court case may draw a definitive line in the sand.
The case is really one of the pot calling the kettle black. The legislative branch has spent most of its existence unchallenged in its reach for more authority in the governmental system.
Every session the Assembly has come up with proposals to expand its involvement in administration by creating committees in the executive branch on which it claims seats for its own members. Between sessions, legislators have used the interim “research” committees to intimidate agencies.
The Legislature has constantly challenged the jurisdiction of the Board of Higher Education by proposing or passing legislation that is clearly within the constitutional authority of the Board. In that regard, legislators could use a little civics lesson.
In the 2009 session, a senator complained because the Board was claiming its authority.
“We cannot let this system grow into a fourth branch,” he asserted.
Well, the Board of Higher Education is a fourth branch under the North Dakota constitution and it was intended to be so. This fourth branch was created in the 1930s to save higher education from politics.
But that has not dissuaded the Legislature from usurping authority that belongs to the Board. Look at the record.
Since the 2009 session, the Legislature has been trying to dictate gun policy on campuses, among other things. In the 2011 session, the Legislature got into an extended fight over the use of Fighting Sioux logo. Another issue that was none of its business.
In 2015, the Legislature entertained a bill pertaining to the availability of student names for political purposes.
In that session, among other measures, it had bills to determine whether or not the names of applicants for higher education positions should be confidential. None of its business.
Then appeared a bill to guarantee legal representation for students. Next, a bill proposed to take the authority to set tuition away for the Board and give it to the Legislature. Another bill would have required performance reviews of presidents, vice presidents and vice chancellors. None of its business.
The 2017 session was a rerun of previous sessions. There isn’t space to list all of the attempts of the Legislature to appropriate Board authority.
Most of this encroachment on the higher education branch has gone unnoticed because higher education has been too reluctant to fight legislative encroachment. It has quietly rolled over too often.
It seems to be in the nature of political animals and their institutions to thirst for more and more power. That’s why the Founding Fathers created three branches to check each other. And that’s why North Dakota has four branches.
That is Civics 101.
Lloyd Omdahl is the former Lt. Governor of the state of North Dakota. He has also been a professor at the University of North Dakota. His column can be found in newspapers all around the state.