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In 1980 the Legislative Research Council was "authorized and directed to make a study and investigation of the constitutional and statutory authority of the governor to issue executive orders having the force of law..." (H. 6782, 1980 Gen. Ct., MA).
The report was published on April 3,1981 as "Report Relative to Gubernatorial Executive Orders," H. 6557, 1981 Gen. Ct., MA. In this report, they offer a definition of gubernatorial executive orders "for the purposes of this study;" an excerpt is quoted below.
"For the purposes of this study, the term "gubernatorial executive order" is defined as any written or printed order, directive, rule, regulation, proclamation or other instrument promulgated by the governor of a state (a) in the exercise of his constitutional authority as "chief executive" or "supreme executive magistrate," (b) in fulfillment of his constitutional duty to enforce state laws, (c) in performing constitutionally assigned duties relative to executive branch reorganization, (d) in the exercise of his constitutional responsibilities as commander-in-chief of the armed forces and civil defense forces of the state, as regulated by state law, and (e) in his role as "agent" of the state legislature in exercising powers delegated to him by statute to implement and administer particular state laws and programs"(p.21)
The legal basis for Executive Orders are cited for and are found in each order. These are also included in the report (p.123):
- The Massachusetts Civil Defense Act (Acts of 1950, c. 639, as amended to date).
- The Governor cited "the authority vested in me by the Constitution and laws of the Commonwealth," or words to that effect without citing specific constitutional or statutory provisions.
- Massachusetts gubernatorial executive orders.
- Executive Order contains no citation of the authority under which it was promulgated.
- U.S. Presidential Executive Order.
- U.S. Public Law.
- The Governor cited his/her "authority as Supreme Executive Magistrate" under the Massachusetts Constitution (specifically or implicitly referring to Part II, c.II, s.I, Art.I).
- Massachusetts War Powers and Defense Acts of World War II (Acts of 1941, c.719, and/or Acts of 1942, c.13, both as amended).
Specific Executive Orders have been challenged and the decisions resulting from these cases helped shape and continue to shape both the definition of an executive order and the Governor's legal authority regarding Executive Orders. The results of these challenges can be found in both case law and the Opinions of the Attorney General.
Further information may also be found in Chapter 2, sections 52 and 53 of Volume 38, Administrative Law and Practice, of the "Massachusetts Practice" series. These sections are titled "Formal Gubernatorial Executive Orders" and "The Supreme Judicial Court and Formal Gubernatorial Executive Orders."
The Massachusetts Trial Court Law Libraries supplies a list, index and some Executive Orders, especially the most recent Orders, in text and/or .pdf format on their web site. The State Library retains copies of all Executive Orders and microfilms these records for permanent retention and preservation. |
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