(concurring) — I concur in the result, but write separately because I believe the majority has abdicated its constitutional duty to interpret the law, breached fundamental principles of separation of powers, and failed to establish a clear and predictable standard by which to determine the meaning of “may be necessary for the . . . support of the state government and its existing public institutions.” Wash. Const, art. II, § 1(b).
The brilliance of our constitution is in its checks and balances. The cornerstone of constitutional checks and balances is separation of powers. “[T]he legislature makes, the executive executes, and the judiciary construes the law.” Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46, 6 L. Ed. 253 (1825). The legislative, executive, and judicial sectors are distinct branches of government and each branch must act within its constitutional role and must not encroach upon the province of another branch. Each branch has the sacred legal duty to provide checks on the other branches. Our constitution requires this vital duty.
However, when an initiative or referendum is implicated, the constitutional equation is altered. The majority fails to recognize that there are not three constitutionally recognized entities present in this separation-of-powers equa*62tion, but four—the fourth being the people of this state. Accordingly, the majority fails to address the correct question in analyzing the constitutional relationship between the legislative and judicial branches. The critical question is whether the legislature has encroached upon the constitutional authority reserved to the people.
The question before us is the balance of power between the people’s constitutional right of referendum, and the legislature’s constitutionally vested authority to act beyond the reach of a referendum due to the existence of emergency or necessity. By taking an overly deferential approach to a legislative declaration of emergency or necessity, this court fails utterly to examine the people’s constitutional power to check the power of the legislature. By effectively deferring to the legislature this court has failed its constitutional mandate to construe the words “necessary” and “emergency” within our constitution and has thereby dulled the brilliance of our state constitution.
The ultimate power to interpret, construe, and enforce the constitution of this state belongs to the judiciary. Brownlee v. Clark, 87 Wn.2d 478, 482, 553 P.2d 1344 (1976). “Both history and uncontradicted authority make clear that ‘ “[i]t is emphatically the province and duty of the judicial department to say what the law is.” ’ ” In re Salary of Juvenile Dir., 87 Wn.2d 232, 241, 552 P.2d 163 (1976) (quoting United States v. Nixon, 418 U.S. 683, 703, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974) (quoting Marbury v. Madison, 5 U.S. (1 Crunch) 137, 177, 2 L. Ed. 60 (1803))). This is so even when that interpretation serves as a check on the activities of another branch or is contrary to the view of the constitution taken by another branch. Powell v. McCormack, 395 U.S. 486, 549, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969). The purpose of separation of powers is not to promote efficiency or good will among the departments of government, but instead to preclude the exercise of arbitrary power by one branch of government and to protect the people from autocracy. Myers v. United States, 272 U.S. 52, 293, 47 S. Ct. 21, 71 L. Ed. 160 (1926) (Brandéis, J., dissenting). Accordingly:
*63“Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.”
Seattle Sch. Dist. No. 1 v. State, 90 Wn.2d 476, 504, 585 P.2d 71 (1978) (quoting Baker v. Carr, 369 U.S. 186, 211, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962)).
Our state constitution declares that “[a] 11 political power is inherent in the people, and governments derive their just powers from the consent of the governed.” Const, art. I, § 1. The Seventh Amendment (now incorporated into our constitution at article II, section 1) specifically limits the power of the legislative branch:
LEGISLATIVE POWERS, WHERE VESTED. The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.
(b) Referendum. The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions ....
Const, art. II, § 1 (emphasis added).
In enacting the Seventh Amendment, the people “fixed a limit beyond which the legislature cannot go without doing violence to the will and voice of the people.” State ex rel. Gray v. Martin, 29 Wn.2d 799, 804, 189 P.2d 637 (1948).
Because of our abiding devotion to separation of powers, we must ask, where is the check if the legislature is at *64leave, without effective review, to declare any law immune from the people’s constitutional power of referendum by simply designating it either an emergency or necessary for the support of a public institution? Where should the balance be struck between the legislative powers of the people and the legislative powers of the legislature? And to whom is the balance entrusted?
The question before us is how to determine whether the legislature has disregarded that limit imposed by the Seventh Amendment. The legislature is not the proper branch of government to resolve this dispute. As delicate and difficult as resolution of the dispute may be, it is nevertheless a task that is assigned to us by the constitution. Unfortunately, by taking an overly deferential approach, the majority has allowed the legislature to become the arbiter of this dispute. It is an essential safeguard of our system of separation of powers that the legislative branch cannot determine whether it has exceeded its own authority. To permit branches to measure their own authority would quickly subvert the principle that state governments, while governments of general powers, must govern by the consent of the people as expressed by the constitution. Courts are exclusively qualified to interpret the constitution. See generally Marbury, 5 U.S. at 176. To keep the balance, judicial power is severely limited. Courts do not have the authority to legislate, only to construe existing law. Further, courts cannot act on their own prerogative; courts can act only on cases and controversies brought before them.
The majority observes that the legislature has declared section 2 of Engrossed House Bill (EHB) 2901 to be subject to an emergency clause but that the legislature’s intention regarding the rest of EHB 2901 is unclear. Thus, according to the majority, the issue is what did the legislature intend with regard to the rest of the act. Majority at 58. However, the proper question is not whether the legislature intended to protect the legislation from referendum, but whether this was the sort of legislation that the people intended to be *65exempt from referendum when they passed the Seventh Amendment.
The majority’s reasoning is similar to that in CLEAN v. State, 130 Wn.2d 782, 928 P.2d 1054 (1996), in which this court concluded that if the legislature so declared, then the financing of a new baseball stadium was necessary for the immediate preservation of the public peace, health, or safety. Citing the reluctance of the judicial branch to intrude upon the legislative branch, this court denied the people the right of referendum on whether a sports stadium should be built, in part, at state expense. This court stated it would defer to the legislature’s determination of an emergency unless it is obviously false. CLEAN, 130 Wn.2d at 812. The constitution requires us to do more.
We have held, as we must under the doctrine of separation of powers, that whether an enactment is necessary for the support of a public institution is a constitutional question subject to judicial interpretation. State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 777, 380 P.2d 735 (1963); State ex rel. Kennedy v. Reeves, 22 Wn.2d 677, 682, 157 P.2d 721 (1945); State ex rel. Brislawn v. Meath, 84 Wash. 302, 318, 147 P. 11 (1915). To allow the legislature to define emergency without meaningful review “is to write this reservation out of the constitution.” Brislawn, 84 Wash, at 311. Deference to the legislature is certainly appropriate, particularly in areas of its authority and expertise; however, we should not abdicate our constitutional responsibility in the name of deference.
Montana has taken a different approach. From a similar constitutional scheme of referendum, the Montana Supreme Court reasoned that because the emergency clause limited the people’s power, legislative declaration of an emergency must be suspect. Montana resolved the tension between the people and the legislature by creating a presumption in favor of the people. State ex rel. Goodwin v. Stewart, 57 Mont. 144, 187 P. 641 (1920).
A review of our jurisprudence reveals that we have never articulated a meaningful test by which to measure whether *66an act is necessary for the support of public institutions. We have either said an act was necessary, see, e.g., Andrews v. Munro, 102 Wn.2d 761, 689 P.2d 399 (1984) (timber taxation); Farris v. Munro, 99 Wn.2d 326, 662 P.2d 821 (1983) (state lottery); State ex rel. Hoppe v. Meyers, 58 Wn.2d 320, 363 P.2d 121 (1961) (motor fuel tax); State ex rel. Pennock v. Coe, 42 Wn.2d 569, 257 P.2d 190 (1953) (public assistance); State ex rel. Reiter v. Hinkle, 161 Wash. 652, 297 P. 1071 (1931) (tax on butter substitutes); State ex rel. Case v. Howell, 85 Wash. 281, 147 P. 162 (1915) (financing of local improvement districts), or was not necessary. See, e.g., Humiston, 61 Wn.2d 772 (municipal gambling facilities); Kennedy, 22 Wn.2d 677 (revising the administration of state timber); State ex rel. McLeod v. Reeves, 22 Wn.2d 672, 157 P.2d 718 (1945) (appointment of game commissioners); State ex rel. Robinson v. Reeves, 17 Wn.2d 210, 135 P.2d 75 (1943) (acquisition of private utility by public utility district); State ex rel. Burt v. Hutchinson, 173 Wash. 72, 21 P.2d 514 (1933) (horse racing and betting system). It seems whether an act is necessary for the support of government or existing institutions as meant by article II, section 1 has been elusive; we have been able to say we know it when we see it but cannot define it. Not surprisingly, it has been difficult for both the people and the legislature of this state to divine our undisclosed principles of interpretation.
Therefore, I would have this court set forth a clear and predictable standard by which we can meaningfully determine whether an act satisfies the emergency or “necessary for the support of government” requirements of the Seventh Amendment. I would give deference to the legislature within the scope of its power and authority and its unique expertise to set policy. At a minimum, the initial burden must be on the petitioner. A petitioner claiming that an act is not subject to referendum because of emergency or necessity must make a prima facie showing to support the claim of emergency or necessity.
Notwithstanding these views, I concur with the majority that the petition in this instance should fail because the *67petitioners have failed to make a prima facie showing that the legislation, except perhaps section 2, is either an emergency or a necessity.7 With or without the inferences afforded by the maxim expressio unius est exclusio alterius relied upon by the majority, the petitioners made an insufficient prima facie showing that EHB 2901 would affect the support of the unemployment insurance system in Washington.8 I find no reason why those sections of EHB 2901 included in Referendum 53 were not properly subject to the referendum power that the people reserved to themselves. Therefore, I concur in result only.
Sanders, J., concurs with Chambers, J.
I have reservations that a writ of mandamus is the correct remedy. A writ of mandamus generally is not available to direct a state official to perform constitutional duties. Walker v. Munro, 124 Wn.2d 402, 407-08, 879 P.2d 920 (1994). Declaratory judgment in the superior court is appropriate.
The issue is not taxes but contributions in the nature of insurance premiums. Proponents of EHB 2901 asserted that the act would merely adjust the premiums among employers to more accurately reflect the risk of unemployment in certain industries. Br. of Intervenor-Resp’ts’ at 22.