A constitutional crisis

Thursday, April 8, 2010 | 2:06 a.m.

Gov. Jim Gibbons on Tuesday appointed a private attorney to represent Nevada and join a Florida lawsuit seeking to overturn the federal health care law that was passed last month. The governor’s move comes after Attorney General Catherine Cortez Masto defied Gibbons’ demand that she join the lawsuit.

This is a crass political move by Gibbons. The governor is struggling in his re-election bid as he faces a strong challenge in the Republican primary. The lawsuit, coupled with his over-the-top rhetoric about the health care law and the Democrats, is designed to woo conservative voters, whom he will need to win the hotly contested Republican primary.

However, by ordering the state to join the lawsuit, Gibbons is putting the state into a constitutional crisis because he is usurping the authority of the attorney general and trampling on state law. Not that it matters to the governor. He has shown a tendency to govern by fiat with executive orders, as if he were the president.

In this case, Gibbons points to a state law that mandates the attorney general sue “whenever the governor directs” and cites her failure to do that as the reason for his action. Some of Gibbons’ supporters have attacked Cortez Masto. One of his aides said she violated the attorney-client privilege by releasing a letter outlining her reasons for declining to join the lawsuit, and someone has since filed a bar complaint. Other supporters have suggested that Cortez Masto has committed a misdemeanor by not obeying the governor.

Those are ridiculous suggestions. As we have noted before, Cortez Masto’s reasoning was thorough, and her reading of the law, unlike Gibbons’ take, was not political.

What Gibbons has done is parse the law and twist it to support his views. The law directing the attorney general to sue was meant in the context of protecting the state’s vital interests — not to give the governor the power to sue on a whim. If Gibbons’ view of the law were to hold, what would prevent a governor from ordering the attorney general to prosecute a political opponent or challenge an opponent’s candidacy?

State law and the Nevada Constitution clearly set up a tension between the attorney general and the governor, which prevents abuses like this.

A clear reading of the statutes shows how Gibbons has overstepped his bounds. Nevada law makes the attorney general the legal adviser “on all state matters arising in the executive department of the state government.” It didn’t intend for the governor to appoint special counsels to sue — in the state’s name — at will. Nor does it give him the power to use executive orders in place of having statutory authority.

Understandably, Cortez Masto said she is considering pursuing action to stop the governor from his undue power grab. Although Gibbons says he wants to join the health care lawsuit to protect Nevadans, it is clear that all he is protecting is his political future.