The Legislature has a fever, and the only prescription is an advisory opinion.  Thankfully, the Massachusetts Constitution obliges.

Our Commonwealth's Constitution may have provided a blueprint for the federal Constitution, but the advisory opinion clause of the former illustrates a big area of difference.

The ability of the Legislature or Governor or Governor's Council to seek an advisory opinion of the Supreme Judicial Court is an important element of our governing system often, and incorrectly, viewed as one of separation of powers.

Richard Neustadt, in his classic work, Presidential Power, noted that the federal Constitution created a “government of separated institutions sharing powers” and thus it is in the Massachusetts context.

Power is not perfectly siloed into executive, legislative, and judicial. Though each has a separate function and different legal and constitutional grants of authority, they are always in intense competition, checking and balancing the relative power of the other branches.

Massachusetts offers an important primer on separate institutions sharing power as our Constitution specifically allows “Each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions.”

The federal Constitution is silent on this point. Article II vests the power to seek “the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices” firmly within the Executive branch.

Article II also clearly establishes the “advice and consent” authority in the relationship between the Executive branch and the Senate.

Article III, establishing the judicial branch, doesn't mention advisory opinions.  And when given the opportunity to seize upon the silences of the Constitution, the Supreme Court declined to do so in 1793.

President George Washington’s Cabinet was locked in a bitter dispute that year over the matter of Citizen Genet and the administration’s Neutrality Proclamation. Washington sought the advice of the Court on a number of important legal, and also hotly contested diplomatic and political, issues.

The Court, under Chief Justice John Jay, declined to provide legal guidance for the executive, citing the terms of Article II.

In 1911, the Court would revisit this issue in Muskrat v. United States. It held that “A case or controversy, in order that the judicial power of the United States may be exercised thereon, implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication.”

In contrast, the Massachusetts Supreme Judicial Court has issued advisory opinions on many important issues, including the establishment of the Turnpike Authority, the creation of a Judicial Nominating Commission, and a proposed establishment of civil unions for same sex couples.

The matter currently before the SJC is a rather simple clause from the Massachusetts Constitution: “ All money bills shall originate in the house of representatives; but the senate may propose or concur with amendments, as on other bills.”

The question is whether the budget that passed the House constituted a “money bill” that allowed the Senate to make tax changes. 

The Speaker and the House claim that because the budget did not raise taxes, it is not to be considered a “money bill” and thus Senate changes to tax laws are unconstitutional. The Senate President and his colleagues believe that given House changes to existing tax credits, the budget became a money bill and opened the door for the Senate.

At the federal level, a similar dispute might be a non justiciable political matter best left to the political branches.  But the advisory clause to our Constitution allows for guidance by the justices.

Still, an SJC opinion on this matter may have the political impact of making it difficult for one of the two branches, but it is advisory not legally binding.

When the Court issues an advisory opinion, it does not preempt future legal challenges because it is not hearing a legal or constitutional challenge in an adversarial context. If the SJC decides that the Senate acted constitutionally in advancing tax proposals because the House’s version of the budget turned it into a “money bill,” the Speaker is not constitutionally bound by the advice. 

The current dispute between the Senate President and the Speaker of the House over what constitutes a money bill is one of those wonderful constitutional moments that reminds us of what separated institutions sharing power means.