Constitutional clash

Wednesday, May 16, 2007 | 7:14 a.m.

CARSON CITY - Tax breaks on environmentally friendly, or so-called "green , " buildings have created what amounts to a minor constitutional crisis.

When Gov. Jim Gibbons issued an executive order Monday instructing agencies to suspend execution of a state law, he claimed unprecedented authority as governor, according to constitutional scholars and legislators in both parties.

By doing so, they say, Gibbons violated the constitutional principle that gives the Legislature the power to create law and the executive the responsibility to carry it out.

But Gibbons and his defenders say that the governor is well within his rights, and that it's the Legislature that tried to encroach on executive turf.

At issue are massive tax breaks for companies that build in an environmentally friendly way; the Legislature passed the breaks in 2005, directing state agencies to carry out the law.

But the cost of the tax breaks, won by such companies as MGM Mirage and Las Vegas Sands, has soared, imperiling the state budget.

In response, the Legislature passed a bill this month instructing state agencies not to take any action on applications for the tax breaks so it could craft new legislation this session to put the state on firmer fiscal ground.

The governor vetoed that freeze Monday, but he issued an executive order telling state agencies, including the Taxation Department, the Economic Development Commission and the state energy office, to suspend until June 4 issuing any new regulations or processing new requests for the tax cuts so the Legislature can craft a new law.

In other words, Gibbons told the agencies: Stop executing the law until June 4.

By doing so, some constitutional scholars and state legislators say, Gibbons claimed more authority than is vested in him by the Nevada Constitution and usurped powers that belong to the Legislature.

Joshua Hicks, Gibbons' chief counsel, wrote in an e-mail explaining the governor's decision: "While it is certainly the province of the Legislature to decide whether tax deferrals or abatements should exist in the first place, the manner in which applications are administratively processed for existing applications is an executive function. And, keep in mind that there is nothing in the law that requires applications be processed within a certain time frame or even in an expedited manner.

"Therefore, and in my opinion, the executive branch is certainly entitled to put a temporary moratorium (about three weeks here) on the administrative processing of pending applications while the Legislature decides what, if any, substantive action it will take on the tax deferral/abatement program."

Hicks also said the vetoed bill, Senate Bill 567 "was flirting with a separation of powers problem" because it doesn't make law, but, rather, gives an administrative direction to the executive branch. The governor is supposed to do that, not the Legislature.

Thomas McAffee, a constitutional lawyer at UNLV's Boyd School of Law, said the governor's executive order seems like an abrogation of the separation of powers.

"Executives have gotten used to exercising a lot of power in the last 20 years or so," McAffee added. "But this does strike me as being a bit extreme."

The Nevada Constitution says, "The Legislative authority of this state shall be vested in a Senate and Assembly " The section about the executive says, "He shall see that the laws are faithfully executed."

Senate Majority Leader Bill Raggio, R-Reno, and Assembly Speaker Barbara Buckley, D-Las Vegas, have asked the Legislature's legal counsel whether Gibbons has overstepped his authority.

Although the concept of separation of powers might seem esoteric, it stands at the center of American jurisprudence, said Douglas Kmiec, a constitutional scholar at Pepperdine University and a top lawyer in President Ronald Reagan's Justice Department.

"The principle of the separation of powers is as old as the republic," Kmiec said. "Indeed, it's the means by which the founders protected us against abusive authority, which is to say, tyranny. James Madison's definition of tyranny was all power vested in one body or person," he added.

"A legislative body sets policies and makes a determination of what law is and can direct an agency to issue regulations. The president or a governor has general supervisory authority over those agencies, but there's an obligation to ensure the laws are faithfully executed."

A momentous debate about the power of the executive has riven the legal community since the 9/11 terrorist attacks.

President Bush has claimed the authority to wiretap terrorist suspects without a court order, jail American citizens without due process and reinterpret certain aspects of the congressionally ratified Geneva Convention .

Bush also has attached about 800 "signing statements" to legislation passed by Congress, often asserting the right to ignore provisions of the laws.

In each case, Bush and his lawyers have claimed their own constitutional authority, often saying, for instance, that the executive's role as commander in chief gives him special powers and responsibilities at odds with laws enacted by Congress.

At a news conference Monday, Gibbons said he vetoed the Legislature's bill freezing the tax cuts because he feared that it exposed the state to lawsuits from companies denied the tax cuts by the new freeze. If they began building a green building to achieve tax savings and then were denied the tax cuts, they could sue the state, he said.

He also said he wanted to give the Legislature time to hold hearings and craft a better piece of legislation while protecting state government's fiscal future.

Buckley said she was surprised by the veto and has serious questions about the executive order: "You can't stop a statute with an executive order."

Raggio said he was reserving judgment until he received a legal opinion from his staff, but he added, "I'm always concerned about separation of powers."

Reporter Joe Schoenmann in Las Vegas contributed to this report.