In his March 12 commentary, “Ford makes grade on separation of powers,” UNLV law professor Thomas McAffee attempted to add what might be considered the third leg of the stool supporting government employees holding elected office. Let’s take a look at what has been thrown at us so far.
First there was Senate Majority Leader Aaron Ford. He said state Sen. Heidi Gansert, the Reno Republican who also works for the university system, is not “exercising the powers or functions ‘appertaining’ exclusively to the executive branch in her job.” Exclusively? Where is that in Article 3, Section 1 of the state constitution? Don’t bother to look for it because it’s not there. “Exclusively” may serve state Sen. Ford’s political interests but it certainly doesn’t serve the interests of those of us in the private sector.
Sen. Gansert herself has taken the “precedent” defense. That position says the government insiders have been treating Article 3, Section 1 like a roll of toilet paper for decades, so where does anyone get off challenging her after all this time? Case closed. It’s a done deal. Get over it, peasants.
Mr. McAffee has chosen the “round up the usual suspects” defense. He starts by saying the separation doctrine prohibits each branch from attacking any of the others. However, each branch is not a living thing. It’s only the people functioning in each branch who give government its life. That’s why Article 3, Section 1 says “no persons.” It is the persons of the executive branch who are attacking the independence of the legislative, not a bunch of Transformers.
Next, the professor plays the lawyer game: “Let’s look at other state constitutions and their Supreme Court rulings.” This is an interesting tactic since it eliminates Article 3, Section 1 from the discussion. Very convenient — for the professor. But what if our justices don’t like the idea they must fall in line and subjugate our state constitution and our state Supreme Court to the rulings of the Mississippi Supreme Court — or any other court, for that matter?
I hope our high court justices will reject second-class status and affirm once and for all the clear mandate of Article 3, Section 1 of the Nevada Constitution: No one may function in more than one branch of government.