Almond v. Rhode Island Lottery Commission

FLANDERS, Justice,

dissenting.

I respectfully dissent. My colleagues in the majority contend that “[i]t is not our function to supervise the General Assembly in its exercise of this power [to regulate lotteries]” because “[n]either the Governor nor this Court has been given the power to supervise the General Assembly’s implementation of its authority to regulate lotteries in this state.” But we are the State Constitution’s whistleblowers. “[o]ur proper office,” as Chief Justice Ames put it in the seminal case of G. & D. Taylor & Co. v. Place, 4 R.I. 324, 341 (1856), is “resisting and restraining unconstitutional assumptions of power,” id.,— especially those assumed by the General Assembly “because it so much needs constitutional control.” Id. at 355. Indeed,

“it is only because it so much needs constitutional control, that the doubt arises whether the constitution does control it. Strong as it is, however, it is, alike with the other departments of the government, powerless before the constitution, and the will of the people which that instrument expresses. The constitution was set up by the people to bound the enterprise of its ambition; to limit the sphere of its activity; to rescue, through the aid of the judicial department, the powers of that and the [executive] department of the government from the eddying current of its ‘impetuous vortex.’ This [CJourt construes the same form, of language in the constitution, when applied to the judicial department, to give exclusive judicial power, as when applied, in the same instrument, to the legislative department, to give exclusive legislative power; and sees, in the natural enterprise and force of this latter department, nothing but a necessity for the control, with the administration of which, the [CJourt is, by the constitution, entrusted.” Id. (First and second emphases in original.)

Thus, if the General Assembly, the Governor, or anyone else has violated our- constitution in a case properly before us, “[i]t is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60, 73 (1803) (Marshall, C.J.), and thereby “to control the tendency to excess of action in every other department.” Taylor, 4 R.I. at 347. And so, instead of wringing our hands and professing how powerless we are to oversee the General Assembly’s implementation of its lottery-regulation powers, we should “start with the premise that legislatures are the creatures of the constitution. They owe their existence to it and derive their powers from it. It is their commission. Therefore all their acts must be conformable to it or else they will be void.” City of Providence v. Moulton, 52 R.I. 236, 241, 160 A. 75, 77 (1932). (Emphasis added.) For this very reason, our own constitution expressly provides that “[t]his Constitution shall be the supreme law of the state, and any law inconsistent therewith shall be void.” R.I. Const, art. 6, sec. 1. (Emphasis added.) Obviously, this constitutional injunction applies to laws passed by the Legislature, as well as to the actions of any agency, commission, or other government entity. Cf. Metropolitan *198Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 269, 111 S.Ct. 2298, 2308, 115 L.Ed.2d 236, 254-55 (1991) (holding that a board of federal legislators appointed by local government authorities necessarily exercised sufficient governmental power as an agent of Congress to violate the federal separation-of-powers doctrine). Accordingly, even though the constitution has specifically bestowed the power to regulate lotteries upon the General Assembly, it is our function, as this state’s highest court, to determine whether it has implemented that power in a manner that is consistent with our constitution. If it has not, then the General Assembly’s attempt to regulate lotteries in this case “shall be void,” R.I. Const, art. 6, sec. 1, and we not only have the power but the duty to exercise the “necessity for the control” over “the natural enterprise and force of this [legislative] department * * * with the administration of which, the court is, by the constitution, entrusted.” Taylor, 4 R.I. at 355.

Under a tripartite system of distributed government powers like the one we have here in Rhode Island, it is hornbook constitutional law that the Legislature “may not delegate power to parts of itself whether or not an exercise of that delegated power is deemed a ‘legislative act.’ ” Laurence H. Tribe, 1 American Constitutional Law, § 2-5 at 145 (3d ed.2000) (hereinafter Constitutional Law). Moreover, “a quasi-parlimentary form of government in which [the Legislature] delegates any power to itself or its parts — even legislative power — is inconsistent with the most fundamental architecture of the Constitution.” Id. at 140. Thus, the General Assembly cannot delegate its article 6, section 15, power to regulate and proscribe2 lotteries to the Senate or to the House of Representatives alone, to some legislative committee thereof, or to an agency like the Lottery Commission that is controlled by legislators or their surrogates. Such a delegation is impermissible under our constitution because it allows a part of the whole to accomplish what the constitution allows only the whole Legislature to do. Indeed, what is even worse, it allows a small subgroup of the General Assembly to regulate lotteries without satisfying our State Constitution’s “single, finely wrought and exhaustively considered” safeguards of bicameralism, presentment, and keeping a public journal of all legislative proceedings — -that is, without complying with the very constitutional hurdles that the General Assembly must clear before it can pass laws, votes, or resolutions pertaining to lotteries. See Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 951-52, 103 S.Ct. 2764, 2784, 77 L.Ed.2d 317, 344-45 (1983) (holding that any action taken by a subpart of the Legislature that is legislative in “character,” must be taken in accord with the “single, finely wrought and exhaustively considered, procedure!,]” set forth in the explicit and unambiguous bicameralism and presentment provisions in Article I of the Federal Constitution that are also present in our State Constitution).3

*199These constitutional restrictions on the General Assembly’s ability to delegate its lottery-regulation powers to an administrative agency or commission comprised of a majority of sitting legislators are not “the dictates of the judiciary,” as the majority would have it, but rather, they are the dictates of the people of Rhode Island as they have embodied them in our State Constitution.4 Thus, o.ur affirmance of the Superior Court’s judgment in this case would not render nugatory the General Assembly’s ability to delegate its lottery-regulation powers to a typical governmental commission or agency comprised of a majority of nonlegislators. Rather, the General Assembly would be barred only from self-delegating its power to legislator-dominated entities like the present Lottery Commission because they are not “other bodies” to whom legislative powers can be delegated, see Milardo v. Coastal Resources Management Council of Rhode Island, 434 A.2d 266, 270 (R.I.1981) (emphasis added), but subparts and constituent elements of the General Assembly itself.

Furthermore, however broad the General Assembly’s legislative powers may be with respect to the regulation of lotteries, it has no power under our State Constitution to execute the laws. Because the power to execute the laws has been distributed to the executive department of our state government, the constitution thereby prohibits the Legislature from exercising this power. “The constitutional distribution of the powers of [Rhode Island’s state] government is at once a grant of specific power to each department and a prohibition to the other two with reference to that same power.” Creditors’ Service Corp. v. Cummings, 57 R.I. 291, 300, 190 A. 2, 8 (1937). By vesting a controlling subpart of the Legislature — namely, the six legislator members of the nine-member Lottery Commission — with the power to execute the same votes, resolutions, and regulations that they pass with respect to lotteries, the General Assembly has violated this fundamental structural limitation embedded in our State Constitution because “[a] primary separation-of-powers concern * * * is that power both to enact and to execute laws not be lodged in the *200same hands.” Constitutional Law, § 2-5 at 140 n. 25.

And the mere fact that the present Governor appeared before the Lottery Commission to urge it not to increase the number of video-lottery terminals (VLTs)5 and that a previous Governor may have endorsed the idea of a Lottery Commission— or was once foolish, pliant, or weak enough not to veto the General Assembly’s attempt to create such a legislator-dominated agency6 — cannot possibly be invoked to ward off any later constitutional objection to such an arrangement. Otherwise, once the General Assembly succeeds in enacting a law that will allow it in the future to make an end run around the presentment, public journal, and bicameralism requirements of the constitution — even if it does so by overriding the veto of the Governor — it is then home free constitutionally to legislate away forever after through whatever legislator-dominated entity or subgroup it has empowered for this purpose without satisfying the otherwise applicable requirements of the constitution for enacting such legislation. But, as the United States Supreme Court held in Cha-dha and Metropolitan, this game cannot be played consistent with a constitution containing bicameralism and presentment limitations on the attempted exercise of legislative powers by any subgroup of the Legislature.

Here, the General Assembly has empowered the Lottery Commission not only to enact laws and pass votes and resolutions relating to lotteries without satisfying the bicameralism (article 6, section 2), public journal (article 6, section 8), and presentment requirements (article 9, section 14) of our State Constitution, but also to execute these same laws, votes, and resolutions.7 In Chadha, the United States Supreme Court explained that the Federal Constitution’s presentment (Article I, section 7, clause 2)' and bicameralism requirements (Article I, sections 1 and 7) constitute crucial structural restraints on the “hydraulic pressure inherent within [the Legislature] to exceed the outer limits of its power.” Chadha, 462 U.S. at 951, 103 S.Ct. at 2784, 77 L.Ed.2d at 345. Thus, it reasoned, if the separation of powers provided for in the Federal Constitution was to function as more than “‘an abstract generalization,”’ id. at 946, 103 S.Ct. at 2781, 77 L.Ed.2d at 341, the courts must enforce the bicameralism and presentment requirements not only when the Legislature purports to act legislatively but whenever it takes action that must be deemed “legislative.” Id. at 952, 103 S.Ct. at 2784, 77 *201L.Ed.2d at 345. The Court deemed the one-house legislative veto of Chadha’s status as a permanent resident alien to be a legislative act because it “had the purpose and effect of altering the legal rights, duties, and relations of persons * * * outside the Legislative Branch.” Id. And because both houses of Congress failed to approve the legislative veto in Chadha and failed to present the veto to the President for his approval or rejection, it followed inexorably that it was unconstitutional. Id. at 959, 103 S.Ct. at 2788, 77 L.Ed.2d at 350. Indeed, the lack of any presentment requirement alone would itself have been enough to doom the action in question. See United States Senate v. Federal Trade Commission, 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1403 (1983) (FTC). In FTC, the Court summarily affirmed the lower court’s judgment invalidating a two-house legislative-veto provision, a device that obviously satisfied the bicameralism requirement but not the presentment obligation that applies to all legislative actions not expressly exempted therefrom by the Federal Constitution. Id. at 1216, 103 S.Ct. at 3557, 77 L.Ed.2d at 1403.

In this case, the commission’s vote to increase the number of VLTs in Lincoln and in Newport suffers from the same fatal defects as invalidated the one-house veto in Chadha. Instead of a one-house legislative veto, the votes of just five legislators in this case “had the purpose and effect of altering the legal rights, duties, and relations of persons * * * outside the Legislative Branch.” Chadha, 462 U.S. at 952, 103 S.Ct. at 2784, 77 L.Ed.2d at 345. Significantly, the Chadha Court held that the House of Representatives’ veto of the decision to suspend Chadha’s deportation had to be deemed legislative because, without its exercise, Chadha would have remained in America, and any change in his legal status as a resident alien could have been wrought only by legislation requiring his deportation. Id. at 953-54,103 S.Ct. at 2785, 77 L.Ed.2d at 346. Here, too, but for the votes of the five legislators who authorized the VLT increase, any change in their legal status could have been wrought only by legislation. See also Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986), (invalidating a provision in the federal Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. §§ 901 to 922, popularly known as the “Gramm-Rudman-Hollings Act,” that delegated power to the Comptroller General to forecast the budget deficit and to order the budget cuts necessary to bring federal spending within the act’s ceiling, 478 U.S. at 734, 106 S.Ct. at 3192, 92 L.Ed.2d at 601, and holding that this delegation was an invalid attempt to vest a legislative official with power that was “executive” in nature).

I am of the opinion that legislative attempts to self-delegate governmental powers to legislator-dominated entities like the one in this case are particularly corrosive to our constitution’s steel structural under-girding: the distribution and vesting of the state government’s powers in separate departments that are in turn restricted constitutionally in how they can exercise their powers. This is especially so because such delegations partake of a certain “stealth” factor that serves to obscure the true encroaching effect of these provisions on the state government’s other branches. As James Madison once observed, the Legislature “can with greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” See Metropolitan Washington Airports Authority, 501 U.S. at 277, 111 S.Ct. at 2312, 115 L.Ed.2d at 259 (quoting The Federalist No. 48, at 334 (James Madison) (Jacob Cooke ed., 1961)).8 For this reason, *202“[t]here is more to fear when [the Legislature]' — -which is the source of all statutorily delegated authority — delegates not to the other branches, but to itself.” Constitutional Law, § 2-6 at 146.

This is precisely why the conventional delegation-of-power cases upon which the majority relies are all inapposite to this situation. None of those cases involved an attempted delegation of the General Assembly’s legislative powers to a legislator-dominated entity endowed with rulemak-ing authority, thereby enabling it to evade the strict bicameralism, public journal, and presentment limitations that apply whenever the General Assembly itself purports to act on such matters. Thus, if the General Assembly had delegated its lottery-regulation powers to some other body like a conventional administrative agency — instead of a commission whose membership is dominated and controlled by a majority of sitting legislators — the agency would not need to comply with the bicameralism and presentment requirements that apply to legislative actions because it would not be an entity controlled by the Legislature or its members.9

Accordingly, the United States Supreme Court, like our Court, long has upheld delegations of limited portions of the legislative power to executive or independent administrative agencies, provided the delegation is confined by some legislative standard(s) that can serve as a safeguard against executive or administrative abuse of that delegation. But until today, neither the United States Supreme Court nor our Court ever has upheld an attempted delegation of legislative and executive power to an entity controlled by a majority of sitting legislators.10 Indeed, in every instance when the United States Supreme Court has confronted such a legislative attempt to circumvent the Federal Constitution’s separation-of-powers, bicameralism, and presentment requirements, it has declared such legislation to be unconstitutional because “[the Legislature’s] authority to delegate portions of its power to administrative agencies provides no support for the argument that [the Legislature] can constitutionally control adminis*203tration of the laws by way of a [legislative] veto,” Chadha, 462 U.S. at 954 n. 16, 108 S.Ct. at 2785 n. 16, 77 L.Ed.2d at 346 n. 16, or by some other such attempted delegation of power to a subpart of the Legislature such as individual sitting legislators, whether they nominally sit as a board, commission, or agency, or under some other alias chosen by the Legislature to characterize its legislator-dominated creation. See Metropolitan Washington Airports Authority, 501 U.S. at 277, 111 S.Ct. at 2812, 115 L.Ed.2d at 259.

Thus, after deciding the Chadha, FTC, and Bowsher cases, the United States Supreme Court in Metropolitan struck down legislation transferring control of two airports near Washington, D.C. from the federal government to local authorities. The legislation conditioned the transfer of control on the local authorities’ creation of a “Board of Review” composed of nine sitting legislators. As part of its enabling legislation, Congress invested this board with a broad veto power over decisions made by the new local airport agency. Metropolitan Washington Airports Authority, 501 U.S. at 277, 111 S.Ct. at 2312, 115 L.Ed.2d at 259. The Metropolitan Court noted that the Federal Constitution imposes two basic restraints on the Legislature: (1) “[i]t may not ‘invest itself or its Members with either executive power or judicial power,’” id. at 274, 111 S.Ct. at 2311, 115 L.Ed.2d at 257 (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 351, 72 L.Ed. 624, 629 (1928)); and (2) “when it exercises its legislative power, it must follow the ‘single, finely wrought and exhaustively considered, procedure’ specified in Article I [presentment and bicameralism],” id. (quoting Chadha, 462 U.S. at 951, 103 S.Ct. at 2784, 77 L.Ed.2d at 344), and “may not delegate the power to legislate to its own agents or to its own Members.” 501 U.S. at 275, 111 S.Ct. at 2311, 115 L.Ed.2d at 258. See also Bowsher, 478 U.S. at 755, 106 S.Ct. at 3202, 92 L.Ed.2d at 614. (Stevens, J., concurring). As a result, the Metropolitan Court did not need to decide just what sort of power the congressional board of review would be exercising when it acted, because it was unconstitutional either way: “[i]f the power is executive, the Constitution does not permit an agent of [the Legislature] to exercise it. If the power is legislative, [the Legislature] must exercise it in conformity with the bicameralism and presentment requirements of [the Constitution].” 501 U.S. at 276, 111 S.Ct. at 2312, 115 L.Ed.2d at 259. Indeed, “[a]ny other conclusion would permit [the Legislature] to evade the ‘carefully crafted’ constraints of the Constitution * * * simply by delegating primary responsibility for execution of [policy to nonlegislative actors], subject to the veto power of Members of [the Legislature, supposedly] acting ‘in their individual capacities.’ ” Id. at 269-70, 111 S.Ct. at 2308, 115 L.Ed.2d at 255.

Here, as in Metropolitan, we have “an entity created at the initiative of [the Legislature], the powers of which [the Legislature] has delineated, the purpose of which is to protect an acknowledged [state] interest, and [the controlling] membership in which is restricted to [legislative] officials.” Id. at 269, 111 S.Ct. at 2308, 115 L.Ed.2d at 254. Thus, for the same reasons that the United States Supreme Court has repeatedly invalidated such egregious legislative attempts to bypass the bicameralism and presentment requirements of the Federal Constitution and to invest legislative officials with executive or legislative power, we should strike down this law as violating our State Constitution, containing in all aspects substantially the same provisions that caused the United States Supreme Court in the Metropolitan, Chadha, Bowsher, and the FTC cases to do likewise. Indeed, far from crafting what the majority calls “a somewhat ingenious doctrine,” the trial justice applied settled principles of constitutional law to the Legislature’s attempt to evade the State Constitution’s restrictions upon the exercise of its powers when he declared the Lottery Commission’s VLT vote *204to be unconstitutional. The only “somewhat ingenious doctrine” at work here is the separation of powers and checks and balances provided for in our State Constitution. Moreover, the majority’s suggestion that “[a]ll parties agree that there is no separation of powers issue in this case and [therefore] the claim of violation of the principle of separation of powers must fail” is belied by the fact that both the Governor and the Attorney General have filed legal briefs in this case that fairly bristle with myriad separation-of-powers arguments concerning why the General Assembly’s creation of a Lottery Commission dominated by sitting legislators violates the separation-of-powers provisions in our State Constitution.

Notwithstanding these indistinguishable federal precedents applying the analogous constitutional provisions that concern us here and the trial justice’s correct application of them to this case, a majority of this Court is apparently unwilling to rein in the General Assembly when it transgresses the constitutional limits that prevent it from executing the laws that it enacts and from delegating its powers to some legislative “mini-me” like the Lottery Commission.11 By their advisory opinion last term and by their decision in this case, my colleagues virtually have handed over to the General Assembly on a platter the chief executive’s constitutional rights and responsibilities, thereby letting the Legislature have- its way to execute the very same laws that it passes. It has even been suggested by the House of Representatives in one of its briefs to this Court that, “under our constitution, the judicial and legislative departments are independent coequal branches of government” subject to the federal doctrine of separation of powers, but not so with respect to the “diminutive” executive branch. But just as a teacher should not sit by ' and idly watch while a big schoolyard bully beats up the smallest kid in the class, so too this Court should not twiddle its thumbs while the Legislature oversteps the constitutional limits of its powers and tramples upon the “diminutive” executive department. And lest any dispassionate observer be tempted to conclude otherwise, we are not parties to some faustian bargain with the General Assembly whereby, in return for the Legislature’s largesse in allowing the Judiciary to function as an independent, coequal branch of government, the Court is obliged to wash its hands of any constitutional responsibility to check the Legislature’s periodic propensity to overstep the constitutional limits on its powers and to exercise the executive power that our constitution has distributed away from that department and vested instead in the executive branch of government. On this defining legal subject, a judicial policy and practice of legislative appeasement will not bring constitutional peace in our time. And however “diminutive” the executive branch may appear when it has been shunted aside into the looming shadows cast by the legislative department, the State Constitution still vests it and not the General Assembly with all the state government’s executive power. Thus, in my opinion, the Court has not only taken a wrong turn in deciding this case the way it has, but also, by failing to heed our state charter’s fundamental directional signposts that specify how the Legislature must execute its powers, it both has lost its constitutional way and condoned a particularly insidious form of legislative lawlessness that will haunt our state for years to come.

All too often, as here, parliamentary supremacists and other extreme proponents of plenary powers for the Legislature have resorted to the General Assembly’s pre-constitutional history as a reason for us to stand aside and let the Legislature have its way, notwithstanding that the framers of our constitution have included in its text both explicit and implicit limitations upon the exercise of legislative power that are contrary tó that history. As in Taylor, 4 R.I. at 360-64, this Court has heard and *205spurned this siren song before when declaring legislative acts unconstitutional, and we should do so again today. Indeed, “the unarticulated assumption” of such historical pleas for legislative or, for that matter, executive “power to deal with a crisis or an emergency according to the necessities of the case” is that “necessity knows no law.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646, 72 S.Ct. 863, 875-76, 96 L.Ed. 1153, 1205 (1952) (Jackson, J., concurring). Yet even history and necessity must bow to the law when the constitution’s fundamental structural principles are at stake because “the Framers ranked other values higher than efficiency.” Chadha, 462 U.S. at 959, 103 S.Ct. at 2788, 77 L.Ed.2d at 349. Perhaps the most malevolent danger of such appeals to history or expediency is that they easily lead to the incremental tyranny of heaping, one upon the other, what may seem at the time and in isolation to be relatively small constitutional transgressions. But as Bertrand Russell once warned, this way of thinking “is like a warm bath that heats up so imperceptibly that you don’t know when to scream.”12 We should make clear that the judicial decision to “scream” — to invoke our State Constitution whenever the Legislature, the Executive, the Judiciary, or any other governmental entity or official attempts to circumvent the restrictions and limitations set forth therein on their powers — will be made with particular regard to preserving the integrity of our constitution’s most fundamental architectural principles. See Constitutional Law, § 2-6 at 152.

In my judgment, for a delegation of legislative power to an entity controlled by a majority of legislators to possess any chance of passing constitutional muster, it would have to, at a minimum, include the same limitations and restrictions that bind the Legislature’s power when it purports to act pursuant to the Constitution. Otherwise, the Legislature will possess every incentive to make an end run around the potentially cumbersome and sometimes problematical constitutional obstacles of bicameralism, public-journal entries, and presentment whenever it wishes to enact laws that might not otherwise clear these legal hurdles or that might prove too controversial or time-consuming to subject to the normal — and constitutionally mandated — legislative process. But hereafter, who and/or what is going to stop the General Assembly from simply forming some type of a commission composed, for example, solely of the Speaker of the House and the Majority Leader of the Senate and empowering it (and, thus, these individual legislators) to enact whatever laws they deem expedient — say on education, the environment, or taxation? In the future, moreover, why should the General Assembly or any controlling subgroup thereof subject its will to the risk of a gubernatorial veto or to passage by both houses of the Legislature? And why should legislators have to submit controversial legislation to the inevitable public vetting that occurs when proposed bills are exposed to the usual legislative process? Indeed, why not allow the General Assembly simply to create a so-called “Legislative Leadership Commission” (LLC), appoint the legislative leadership as its sole members, and let them decide by themselves what laws to enact via administrative votes, resolutions, or rulemaking? In other words, why fool around with the rest of the Legislature, the Governor, or the Supreme Court — let alone with bicameralism and presentment limitations established by the citizens of Rhode Island — when an LLC, a Lottery Commission, or some other such legislative proxy or facsimile will suffice to finesse this whole constitutional kit and caboodle?

Surely, one of the most unwelcome yet momentous tasks for the highest court in any jurisdiction is to require itself and the other branches of government to toe the *206constitutional line whenever they purport to exercise their powers. Otherwise, an enormous risk exists that one or more of them simply will ignore these restrictions and proceed- — methodically at times, haphazardly at others, but always inexorably and implacably — to aggrandize their powers at the expense of those vested by the people of this state in the other branches of state government. Such a process, I fear, is now apace in Rhode Island. Yet this Court steadfastly maintains that from a constitutional perspective it sees no evil, speaks no evil, and hears no evil in such legislative power plays. Rather, the majority blithely stamps its imprimatur on such acts, professing that we are powerless to do anything about how the General Assembly exercises its lottery regulation powers or whether it encroaches on executive powers in doing so. But by not enforcing the State Constitution’s bicameralism and presentment requirements in this case the Court risks reducing these provisions to little more than “bare ruined choirs where late the sweet birds sang.”13 Furthermore,

“[i]n a case so clear from doubt as this is, we should be equally unworthy of the post of duty in which we are placed by the constitution, if we swerved from the duty which that post devolves upon us, either from want of a just attention to, or a just sense of, the rights of litigants before us, oppressed by an unlawful exercise of power by the assembly, or from a false delicacy growing out of the conflict of power involved in the case between the legislative department of the government [and another such department].” Taylor, 4 R.I. at 364.

I also believe that today’s decision serves to undermine an even more fundamental cornerstone of our State Constitution, one that the Federal Constitution in Article IV, section 4, guarantees to each state in the union: namely, a republican form of government. Indeed, with respect to the regulation of lotteries, it would seem that Rhode Island no longer has a republican form of government. Instead of a popularly elected legislature enacting lottery-related laws passed by both houses, recording those votes in a public journal of its proceedings, and then presenting the legislation to the Governor for his or her approval or veto, a commission controlled by a small subset of legislators appointed by the Legislature’s leadership is running a mega-gambling operation that is raking in hundreds of millions of dollars without popular government approval of its regulations and in defiance of the constitution’s bicameralism, public journal, and presentment requirements. Even dyed-in-the-wool parliamentary supremacists should blanch at a scheme that so blatantly bypasses our State Constitution’s requirements for valid legislative action. Instead of wiping our brow and proclaiming how powerless we are to intervene in such matters, we, like the United States Supreme Court, should “not hesitate[] to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch.” Mistretta v. United States, 488 U.S. 361, 382, 109 S.Ct. 647, 660, 102 L.Ed.2d 714, 737 (1989).

Yet we are told that, because this Court is “not interpreting the Constitution of the United States, * * * [but] a specific provision of the Rhode Island Constitution which squarely placed the power to regulate the state lottery in the hands of the General Assembly,” it “violates no mandate of our constitution” to allow the General Assembly to delegate its power to regulate lotteries to a commission dominated by legislators. And never mind that the General Assembly has endowed this commission with the power both to enact laws pertaining to lotteries without satisfying the constitution’s bicameralism, public journal, and presentment requirements and to execute those same' laws, in deroga*207tion of our constitution’s separate vesting of the executive power. But the constitution of our state is no different from the United States Constitution with respect to the key provisions that control the outcome in this case. Does our State Constitution provide for a tripartite division of the powers of government like the Federal Constitution? It does. Does it include bicameralism and presentment limitations on the valid exercise of legislative powers as does the Federal Constitution? Most certainly. And does it, like its federal counterpart, vest the executive power in a separate branch of government, endow the chief executive officer with that executive power, enjoin the chief executive officer to take care that the laws are faithfully executed, and thereby prohibit the other two branches from exercising such executive powers? Yes, indeed. See In Re Dorr, 3 R.I. 299, 301 (1854) (affirming that “power exclusively conferred upon the one department is, by necessary implication, denied to the other”). Thus, in all material respects pertinent to answering the legal questions that this case raises, the United States and Rhode Island Constitutions are formally and functionally the same.14 As a result, the United States Supreme Court precedents cited herein are especially relevant and persuasive concerning how we ought to resolve the controversy before us, especially because we have repeatedly professed our reliance upon one or more of these precedents when deciding other separation-of-powers cases. See, e.g., City of Pawtucket v. Sundlun, 662 A.2d 40, 58 (R.I.1995) (citing Chadha with respect to this Court’s proper analysis of a separation-of-powers challenge); State v. Jacques, 554 A.2d 193, 196 (R.I.1989) (relying upon federal jurisprudence to define what constitutes a separation-of-powers violation); Holmes v. Farmer, 475 A.2d 976, 982-85 (R.I.1984) (relying upon The Federalist No. 47, at 343 (James Madison) (Dawson ed., 1864), and United States Supreme Court precedents on separation of powers to determine the scope of legislative privilege).

Moreover, the mere fact that the State Constitution specifically vests the General Assembly with the power to “regulate” and to “proscribe” lotteries does not mean that the General Assembly is therefore entitled to ignore all the other constitutional restrictions that limit its ability to exercise its legislative powers. First, its article 6, section 15 power to regulate lotteries is contained in the part of the constitution that addresses “the legislative power.” Thus, it contains no authorization whatsoever for the General Assembly to execute any laws that it may pass pertaining to the regulation and/or to the proscription of lotteries. And contrary to the majority’s assertion, the State Constitution vests no power in the General Assembly concerning “the supervision of lotteries in the State of Rhode Island,” nor have all the parties and the trial justice conceded that the State Constitution has specifically placed the “supervision of lotteries in the General Assembly and not in the executive.” The power to regulate is not the power to supervise.15 Nor does it empower the *208General Assembly to act judicially with respect to interpreting the laws it enacts to regulate lotteries. Surely, it would be ludicrous to suggest that merely because the Federal Constitution grants Congress the power “[t]o regulate commerce” in Article I, section 8, it thereby endowed Congress with the ability to execute the commercial laws it passes or to circumvent the bicameralism and presentment requirements of the Federal Constitution by investing a subgroup of legislators with the power to pass commercial rules and regulations and then administer these same laws. Second, nothing in our constitution’s language vesting the General Assembly with the legislative power to regulate and to proscribe lotteries entitles the General Assembly to avoid the separate article 6, section 2, requirement that it obtain “[t]he concurrence of the two houses” before “the enactment of laws” pertaining to lottery regulation. And under R.I. Const, art. 9, sec. 14, “[ejvery bill, resolution, or vote * * * which shall have passed both houses of the general assembly shall be presented to the governor” for his or her approval or veto.

If the framers of the 1973 lottery amendment to our State Constitution had intended so radical a proposition that the other constitutional prerequisites to the valid exercise of legislative powers would not apply to the General Assembly’s regulation and proscription of lotteries, they would have said so in a constitution that long ago removed the Legislature’s pre-constitutional executive and judicial powers and bestowed them, respectively, upon the other two departments of state government. But they did not so provide. And because the text of our constitution gives no indication that these bicameralism and presentment provisions have been superseded, modified, or suspended in the case of lotteries, we should read article 6, section 15, of our State Constitution as requiring the Legislature to comply with the normal and usual requirements for passing legislation whenever it attempts to regulate lotteries. Indeed, the existence of constitutional exceptions to the bicameralism and presentment requirements — for example, the advice and consent provisions of R.I. Const, art. 10, sec. 4, for the confirmation of the Governor’s nominees to state court judgeships — proves that when the framers wished to create exceptions to the generally applicable rules that they laid down for valid legislative actions, they knew how to do so. With respect to lottery regulations, however, they carved out no such exception.

The majority also summons the case of Narragansett Indian Tribe of Rhode Island v. State, 667 A.2d 280 (R.I.1995) to its side, but it proves no boon companion in this context. That case held only that the Governor had no authority to bind the state to a lottery compact with the Narragansett Indians absent an express delegation of power to do so from the General Assembly. Id. at 282. But it said nothing whatsoever about the constitutionality of the General Assembly’s creation of a Lottery Commission stacked with sitting legislators. In fact, the Court’s opinion failed even to mention the Lottery Commission, much less did it pass upon its legality. And unlike the Narragansett Indian case, the issue here is not whether the constitution has vested the General Assembly with the power to regulate lotteries. It clearly has. Rather, the question is whether the General Assembly has exercised its power to regulate lotteries consistent with the constitution’s restrictions upon how the Legislature is to exercise this power. On this point, the Narragansett Indian case offers no aid or comfort to the majority because it fails to address this question.

Somehow and in some way as yet to be explained, the critical constitutional distinction between the grant of a plenary legislative power to act with respect to a given subject (here, lotteries) and the *209structural and procedural limits on how, when, where, who, in what manner, and under what conditions that plenary legislative power can be exercised has been completely lost on the majority of this Court. It is as if, blinded by the bright light thrown off by the constitution’s specific vesting of the lottery-regulation power upon the General Assembly, the majority is now unable to discern the constitution’s express and implied limitations upon how that power must be exercised. But unless the Court soon recovers its constitutional bearings and finds the courage “to bound the enterprise of [the General Assembly’s] ambition * * * [and thereby] to limit the sphere of its activity” to all that the constitution provides, but no more, Taylor, 4 R.I. at 355, its loss of legal vision risks plunging the people of this state into a long, dark age of subjugation to unchecked, unbalanced and unlimited governmental powers exercised by controlling members and subparts of the Legislature — notwithstanding a State Constitution that was enacted to prevent such a catastrophe from ever occurring.

In sum, the Legislature’s creation of a Lottery Commission dominated by a majority of legislators that then votes to increase the number of VLTs in certain communities without satisfying these constitutional preconditions violates the above-referenced sections of our State Constitution. Therefore, we should affirm the Superior Court’s judgment, void the General Assembly’s attempt to circumvent these constitutional safeguards, and enjoin the commission’s vote to increase the number of VLTs.

Conclusion

The part cannot possibly be greater than the whole. If the whole Legislature cannot regulate and proscribe lotteries without acting bicamerally, without recording its proceedings in a public journal, and without first presenting its legislative acts to the Governor for a possible approval or veto, then how can a part of the Legislature — a mere five legislators — do so under the guise of acting as “the Lottery Commission?”

For these reasons, and for those set forth in my answers to questions II and III in In re Advisory Opinion to the Governor (Rhode Island Ethics Commission— Separation of Powers), 732 A.2d 55, 96-111 (R.I.1999), I would affirm the trial justice’s declaratory judgment and remand this case to the Superior Court for the issuance of a permanent injunction enjoining the Lottery Commission from implementing its vote to increase the number of VLTs.

. The General Laws version of the State Constitution indicates that lotteries are subject to the "prescription” and regulation of the General Assembly, but the text of the actual constitutional amendment that the voters approved in 1973 provided for the "proscription” and regulation of lotteries by the General Assembly. Compare R.I. Const, art. 6, sec. 15, provided in G.L.1956 with Constitutional Convention of Rhode Island 1973, Final Approval (located at C# 00521 of Constitutional Convention Records, 1973 — R.I. State Archives Office). But the precise wording of the lottery amendment is immaterial to the outcome in this case. Under either version, the General Assembly is free to proscribe or prescribe state-run lotteries as long as it follows the constitution’s restrictions on how it must do so, including passage of lottery laws pursuant to the bicameralism, presentment, and public journal prerequisites to valid legislative action and/or assigning a portion of its responsibility to regulate lotteries to nonlegislative entities and officials but not to some subpart of itself or to an entity controlled by legislators.

. See R.I. Const, art. 6, sec. 2 ("[t]he concurrence of the two houses shall be necessary to the enactment of laws”) (emphasis added); *199and art. 9, sec. 14 ("[e]very bill, resolution, or vote !! * * which shall have passed both houses of the general assembly shall be presented to the governor [for his or her approval or veto]”).

. Because our State Constitution contains bicameralism and presentment restrictions similar to those that were first included in the Federal Constitution,

"it is helpful to recall the context that gave rise to the inclusion of bicameralism and presentment in the [Federal] Constitution. Adopted in an era when many had lost confidence in the capacity of (unchecked) legislatures to safeguard liberty and respect law, the constitutional checks of bicameralism and presentment, codified in Article I, Section 7, comprised a key element of the Constitution's scheme to preserve individual liberty. Those requirements serve evident and well-understood purposes, which require only brief mention here. First, by dividing the legislative power between two chambers, bicameralism and presentment make it more difficult for factions to usurp legislative authority, ensuring a diffusion of governmental power and preserving the liberty and security of the governed. In this regard, the division of legislative power into distinct parts effectively operates ‘to balance interest against interest, ambition against ambition, the combinations and spirit of dominion of one body against the like combinations and spirit of another.’ Second, the requirements of [bicameralism and presentment] promote caution - and deliberation; by mandating that each piece of legislation clear an intricate process involving distinct constitutional actors, bicameralism and presentment reduce the incidence of hasty and ill-considered legislation. Third, by relying on multiple, potentially antagonistic constitutional decisionmakers, the legislative process prescribed by [bicameralism and presentment] often produces conflict and friction, enhancing the prospects for a full and open discussion of matters of public import.” John F. Manning, Textualism As A Nondelegation Doctrine, 97 Colum. L.Rev. 673, 708-09 (1997) (footnotes and citations omitted).

. In doing so, the Governor did not seek to acquire nor did he acquire rights before an administrative agency that would preclude a collateral attack on the constitutionality of the Lottery Commission’s enabling legislation. Cf. Wellington Hotel Associates v. Miner, 543 A.2d 656, 659 (R.I.1988) (also citing Easton’s Point Association v. Coastal Resources Management Council, 522 A.2d 199 (R.I.1987), in denying a litigant’s right to challenge the agency’s enabling legislation because it had acquired rights in a proceeding before the agency). On the contrary, the Governor merely lobbied the commission in his capacity as the state’s chief executive officer to avoid taking the very acts that he believed were unconstitutional. Thus, in doing so he has not waived any right to challenge either the commission’s actions or its enabling legislation because both actions were perfectly consistent with one another.

. Although the majority may be correct in stating that former Governor Noel "could [not] be characterized by anyone * * * as a 'shrinking violet,’ ” nevertheless this former chief executive officer of our state soon rued the day when he failed to veto the legislation creating the Lottery Commission. See M. Charles Bakst, "Noel Moves to Take Direct Control of Lottery,” The Providence Journal, July 25, 1974, at A1 (quoting Governor Noel as having "declared he made a ‘mistake’ in signing the law establishing the lottery commission”).

.The commission exercises legislative power insofar as it passes votes, resolutions, and rules that regulate and/or proscribe lotteries. It exercises executive power insofar as it carries out and administers such legislative acts. Thus, the commission’s vote expanding the number of video lottery terminals (VLTs) in Newport and Lincoln and its implementation thereof partakes of both powers.

. In enacting a constitution that was intended to “bound the enterprise of [the General Assembly's] ambition” and “limit the sphere of its activity,” Taylor, 4 R.I. at 355, the framers of Rhode Island’s Constitution, like the framers of the Federal Constitution, intended to rescue both the executive and judicial depart*202ments "from the eddying current of [the Legislature’s] impetuous vortex.” Id.

"In monarchical regimes the chief danger arose from the excesses of the crown, but in a republic that distinction necessarily fell to the legislature. Not only did it enjoy the political advantages that flowed from direct popular election, it could also exploit its formal rule-making authority to circumscribe the discretion of the other branches, override particular decisions to which it objected, or use its power of the purse to make the other departments bend to its will. Nor was this concern merely speculative. Experience demonstrated that '[t]he legislative department is everywhere extending the sphere of activity, and drawing all power into its impetuous vortex.’ ” Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 53 (1996) (quoting The Federalist Nos. 37 and 48 (James Madison), and citing Merrill Jensen, et al. eds., The Documentary History of the Ratification of the Constitution, XV, 346, XVI, 4 (Madison, Wis., 1976)).

. As one commentator has noted,

"[delegation to agencies or courts — unlike self-delegation to [legislative] committees or sponsors — leaves intact an important structural check on [the Legislature's] power. When [the Legislature] delegates lawmaking authority to an agency or court, it cedes some of its own control over statutoiy meaning to a distinct branch that, by constitutional design, is independent of [the Legislature], This feature of the constitutional structure imposes substantial agency costs whenever [the Legislature] delegates a question to a court or an agency, rather than clearly resolving the matter itself. For that reason, it comports with the plan of the Constitution to deny [the Legislature] direct control over the interpretation of its own laws (at least when [the Legislature] does so through means short of bicameralism and presentment).” Manning, 97 Colum. L.Rev. at 711.

. Apparently, in addition to the Lottery Commission, the only other state government entity whose membership currently consists of a majority of sitting legislators, is Rhode Island's Unclassified Pay Plan Board. G.L. 1956 § 36-4-16 (providing for a seven-member board that includes two state senators and two state representatives).

. Austin Powers: The Spy Who Shagged Me (New Line Cinema 1999).

. Constitutional Law, § 2-6 at 151 (3d ed.2000) (quoting Leon Kass, "Implications of Prenatal Diagnosis for the Human Right to Life,” in Biomedical Ethics and the Law 327 (James M. Humber & Robert F. Almeder eds., 1976)).

. William Shakespeare, Sonnet LXXIII.

. Contrary to the majority’s assertion, I do not regard the State Constitution "as a mirror image of the Federal Constitution.” Rather, our State Constitution is like the Federal Constitution in several respects and unlike it in others. But for the purpose of deciding this case, the likenesses — in particular, the bicameralism, the presentment, and the separation-of-powers limitations on the exercise of legislative powers — are controlling. Thus, the majority’s attribution of a "mirror image theory” to this dissent reflects only a straw-man argument held up to its looking glass.

. The word "regulate” is defined as ”[t]o fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws.” Black’s Law Dictionary 1286 (6th ed. 1990). Thus, the lottery amendment gives the General Assembly only the power to enact governing laws and rules pertaining to lotteries, but not to execute these laws or to supervise their administration. See also North American Co. v. Securities & Exchange Commission, 327 U.S. 686, 704, 66 S.Ct. 785, 796, 90 L.Ed. 945, 958 (1946) (defining "regulate” in the context of the Commerce Clause of the *208Federal Constitution as the power "to prescribe the rule by which commerce is to be governed”), but not to execute or supervise how these laws are administered.