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The Power of the Executive Order: More Trouble Than It’s Worth?

By David L. Minchello

Since taking office, Governor Christie has wielded the executive order more fiercely than any other Governor before him.  Governor Hughes issued five executive orders during his eight-year administration.  Governor Byrne had only four in his eight years.  Governor Christie has issued an astounding twenty executive orders in his first two months, a record in New Jersey. 

An executive order, which has the force of law, is issued either pursuant to the general executive power bestowed on the Governor by the Constitution or pursuant to statutes which delegate specific powers to the Governor.  Although many executive orders are clearly temporary in nature, others can remain in force indefinitely.  The beginning of a new administration does not affect the status of the orders that are still in force. 
           
Not only has Governor Christie employed the executive order more than any of his predecessors, he has also delved into more controversial areas, including pay-to-play laws and COAH obligations.  Recently, public interest groups have begun fighting back, seeking injunctions of these executive orders as an abuse of the Governor’s authority.

For instance, on February 16, the Fair Share Housing Center (FSHC) challenged Christie’s Executive Order to place an indefinite hold on COAH’s processing of municipal applications for approval of affordable housing obligations, in essence placing a hold on the entire process.  FSHC argued that this executive order violated the New Jersey Constitution’s separation of powers doctrine and thwarted the Legislature’s 1985 enactment of the COAH board.  In addition, FSHC argued that the executive order interfered with the implementation of the Mount Laurel doctrine enunciated by the New Jersey Supreme Court.  On February 19, the New Jersey Appellate Division agreed and enjoined Governor Christie’s Executive Order. 

There is evidence that Governor Christie may begin to see the difficulties of governing in this fashion.  On March 19, Governor Christie rescinded this executive order halting COAH.  However, additional challenges are still looming.  Four labor unions have filed a lawsuit in the New Jersey Appellate Division arguing that Governor Christie has overstepped his bounds by issuing an executive order expanding pay-to-play restrictions to Labor Unions.  Once again, these unions have relied on the separation of powers doctrine in support of their position.

Governor Chris Christie took office with a message of swift and sweeping reform in Trenton.  In an attempt to bring that reform with an opposition legislature, Christie has governed via Executive Order more than any of his predecessors.  However, this approach has brought numerous legal challenges from those it seeks to regulate and will likely continue throughout Christie’s term in office.  

For more information on pending litigation matters which impact governmental entities, contact David L. Minchello.

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