(concurring). I concur. It is important to emphasize what is not at issue in this case. The constitutionality of the various statutes (G. L. c. 175, § 120; G. L. c. 176D, § 3 [7]; and G. L. c. 175, § 144 [1990 ed.]) is not before the court. The sole basis for the decision is the commissioner’s lack of authority to issue the regulations.
An administrative agency has only those powers, duties, and obligations expressly conferred on it by statute or reasonably necessary to carry out the purposes for which it was established. See Saccone v. State Ethics Comm’n, 395 Mass. 326, 335 (1985); Hathaway Bakeries, Inc. v. Labor Relations Comm’n, 316 Mass. 136, 141 (1944). The power delegated by the Legislature to an agency does not include the inherent power to determine whether a particular piece of legislation is constitutional. See Weinberger v. Salfi, 422 U.S. 749, 765 (1975); Public Utils. Comm’n of Cal. v. United States, 355 U.S. 534, 539 (1958). “[I]t is fundamental in our system of government that courts, and not administrative agencies, must resolve conflicts which may arise between statutory and constitutional provisions” (emphasis in original). School Comm. of Springfield v. Board of Educ., 362 Mass. 417, 431 (1972). See 3 K.C. Davis, Administrative Law Treatise § 20.04, at 74 (1958). Any other rule would put too much uncertainty in the administrative process. Thus, when an administrator is charged with enforcing a duly enacted piece of legislation, he or she may not disregard that duty because of a personal belief that the legislation is unconstitutional. If the commissioner thought that the use of gender-based mortality tables violated art. 1 of the Massachusetts Declaration of Rights, as amended by art. 106 of the Amendments (Equal Rights Amendment), he should have sought a declaratory judgment pursuant to G. L. *567c. 231A (1990 ed.). See School Comm. of Springfield, supra at 432.
As the court concludes, G. L. c. 175, § 144 (6A) ih) (1990 ed.), expressly authorizes gender-based discrimination in the determination of insurance premiums.1 In the face of such express authorization, the commissioner was without the power to prohibit the practice, even if he believed the Constitution itself forbids it. The commissioner must seek a judicial declaration on the constitutionality of the various statutes.
I do not agree with the court’s conclusory and unnecessary determination that G. L. c. 175, § 120, and c. 176D, § 3 (7) (1990 ed.), conflict with the unisex regulations. Both provisions prohibit unfair discrimination between persons “of the same class and equal expectation of life.” Contrary to the court’s unexplained conclusion, these provisions do not expressly authorize gender-based discrimination merely because such discrimination may be actuarially sound. Actuarial soundness does not automatically translate into “fair” discrimination (as, for example, in the cases of religious, ethnic, or race-based classifications). The court assumes without explanation that gender-based discrimination is fair. That issue, however, should be determined in a proceeding considering the constitutionality of the statutes. Moreover, the statutes do not define what constitutes a permissible “class.” Therefore, the commissioner may be within his authority in interpreting an ambiguous term to prohibit the use of group classifications protected by the Equal Rights Amendment. See Samuels Pharmacy, Inc. v. Board of Registration in Pharmacy, 390 Mass. 583, 590 (1983); Grocery Mfrs. of Am., Inc. v. Department of Pub. Health, 379 Mass. 70, 75 (1979).
Given the clearly contradictory language contained in c. 175, § 144, in my view, it was completely unnecessary for the court to decide whether these two provisions also conflict with the regulations. The better practice would have been for the court to rest its decision solely on c. 175, § 144.