NJ Supreme Court hearing- the Executive Branch & the Council on Affordable Housing

On January 28th, 2013, the New American Movement attended the Supreme Court oral argument that reviewed the extent of the Executive Branch’s power in regards to the Council on Affordable Housing. The courtroom was divided with Christie-critical reporters on the plaintiff side (satirical desktop photos of Christie included), and members of Christie’s executive branch on the defendants side. The room was buzzing before the Justice’s entered, mainly in disbelief that the checks and powers of the New Jersey government had reached the highest courtroom.

On behalf of Governor Christie, his Deputy Attorney General Lougy carried the argument for Christie’s power as an issue of “plain-language ambiguity” of the legislative branch. Using the Reorganization Act of 1947, Lougy argued that the language specified in the establishment of the Council on Affordable Housing, made COAH ultimately subject to Christie’s control and responsibility.
In the language of COAH, the council is “in but not of the Department of Community Affairs.” This simple semantics controversy holds the precedent for all councils and commissions under the executive office. To the defendant, no council or commission is independent of any of the three branches of government. Meaning, all matters of the state fall under either the executive, legislative, or judicial branch.
That being said, to the defendant, the language used by the establishment of COAH by the legislative branch as “in but not of” cannot be viewed as independent of a branch of government, and therefore falls under the executive branch, thus subjecting it to executive powers.

Needless to say, the Justices of the Supreme Court did not take this assertion very kindly. Evoking the intentions of the founding fathers and the history of the State of New Jersey, the justices questioned the extent of power the executive branch actually has. Noting that never before has a council been absolved by an executive power, the Justices hinted that the executive branch has never before desired to extend responsibility and control over a council created by legislation.
In response to the Justices’ questioning, the plaintiff asserted that Governor Christie has the ability to dissolve COAH as noted in the veto provision of the executive branch as part of the “bedrock of separation” of the branches of government. Lougy argued that in the creation of COAH, the legislative branch gave the governor a “broad authority” to reorganize the council.
However, it is important to recognize that there is a vast difference between a “reorganization” of the council and dissolution of the council. Low and behold, this is where “plain” or general language in the establishment of the council nourished ambiguity in the scope of executive powers. The Supreme Court Justices in response to this sought the original intentions of legislature in COAHs establishment.
What were the original intentions of the Council on Affordable Housing? Believe it or not, despite the controversial shadow cast over COAH, the intentions of the council are benevolent. Created by the legislative branch in response to an ever-increasing cost of living in the state of New Jersey, assemblymen sought to create a bipartisan task-force to allocate state funds to municipalities who constructed affordable housing. This housing would be subsidized by the State of New Jersey and ease the growing socio-economic gap of New Jersey residents.
How COAH has grown to be “inefficient” cannot be pinpointed. Perhaps partisan disagreements plagued the council, or maybe it is the Mt. Laurel case. Regardless of where the inefficiency derived, COAH is presently sitting on over $100 million in funds that cannot be distributed until the council reconvenes.
Though the reasons behind Christie’s desire to absolve the COAH were never spoken in the courtroom, the defendants half of the room was left mildly amused by the Deputy General’s argument. “Pulling at strings” was the general idea on the minds of most in the room.
The Supreme Court Justices hinted at the lasting implications a decision in favor of the defendant could have on the remainder of councils and commissions under the Executive branch. Using a hypothetical ruling in favor of the defendant (Christie), the Justices hinted at the long-term implications the precedent of the plain text “in but not of” could have for other councils and offices such as the Public Defenders.
For the defendant (the Council on Affordable Housing) the argument was simple. Plainly put, the attorney on behalf of COAH stated that regardless of the inefficiencies of COAH, the governor does not have the power to absolve a bipartisan council for his own partisan agenda. The defendant spoke briefly, and was not questioned as substantially as the plaintiff.

As representatives on behalf of people with disabilities and advocates for affordable housing, this argument on behalf of Christie and his executive branch appeared comically presumptuous. The COAH was designed to be comprised of 12 representatives, 6 democrats and 6 republicans. The intentions of the legislative branch were clear in their stipulations of the 12 representatives that would comprise the council: bipartisanship. Fundamentally, the mere attempt of Christie to absolve the council is in direct contradiction of the council’s purpose and a gross overstep of the governor’s powers, regardless of which branch of government COAH falls under.

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