Plenary Power – How Far Can the General Assembly Go?

by Julie Pelegrin

You hear it all the time, “The General Assembly has plenary power.”  But what does that mean? Can the General Assembly really enact any law that it thinks is necessary?  Are there limits on what the General Assembly can do? And, if there are, what are those limits and who decides when they’ve been violated?

Let’s start with the definition of “plenary”. Black’s Law Dictionary, 7th Ed., defines plenary as “full, complete, entire.” So, to say that the General Assembly has plenary power to enact the laws of the state is to say that it has the full and entire authority to decide what the laws of the state should be.

Four years after statehood, the Colorado Supreme Court had its first opportunity to interpret the extent of the General Assembly’s plenary power. In People ex rel. Tucker v. Rucker, the Court stated

. . . when the people by their constitution created [the General Assembly], and declared that the legislative power should be vested therein, they conferred the full and complete power as it existed and rested in themselves, subject only to the restraints and limitations of their own constitution and the constitution of the United States.
People ex rel. Tucker v. Rucker, 5 Colo. 455 (1880)

How does the state constitution limit the General Assembly’s plenary power? First, the people, in writing the state constitution, reserved to themselves the power of initiative and referendum. Immediately after vesting the “legislative power of the state” in the General Assembly, section 1 of article V of the state constitution reserves to the people “the power to propose laws and amendments to the constitution” – the power of initiative — and the power to “approve or reject at the polls any act or item, section, or part of any act of the general assembly” – the power of referendum. We will consider both of these powers, including the use of a “safety clause,” more thoroughly in the next installment in this series.

Other examples of explicit constitutional limitations on plenary power are the many personal civil rights protected in article II of the state constitution; the specific provisions of the state personnel system found in section 13 of article XII; limitations on the power to tax and spend found in section 20 of article X; and the local control of instruction reserved to school district boards of education in section 15 of article IX.

The Colorado Supreme Court has also limited the plenary power of the General Assembly by interpreting the separation of powers among the branches of state government. The Court has most often been called upon to decide where the General Assembly’s plenary power over appropriations ends and the Governor’s power to administer the executive department begins.

In the case of Colorado General Assembly v. Lamm, 700 P.2d 508 (Colo. 1985), the Court identified a “twilight zone of competing constitutional authority” between the General Assembly and the executive branch. But in the same decision, the Court held that

It is undisputed that the power to legislate granted to the General Assembly by article V, section 1 of the Colorado Constitution permits the General Assembly to define the operation of grants of governmental authority articulated by the constitution, . . . and that the power of the General Assembly over appropriations is absolute.

In this case, the Court specifically held that the General Assembly’s plenary power over appropriations prohibits the Governor from attempting to transfer appropriations from one executive branch agency to another.

But the Supreme Court has not always come down on the side of the General Assembly, even if the power to appropriate is “absolute”. The Court has said the General Assembly cannot specifically limit an executive branch agency’s number of employees. And the General Assembly cannot use the appropriations power to enact footnotes or headnotes in the annual budget bill that try to administer too closely an executive agency’s use of appropriated moneys. See Anderson v. Lamm, 195 Colo. 437, 579 P.2d 620 (1978); Colorado General Assembly v. Owens, 136 P.3d 262 (Colo. 2006).

Also, the Court has held that the General Assembly does not have authority to appropriate “custodial funds” – moneys appropriated by the federal government to the state for specific programs. The General Assembly may appropriate federal moneys only if the federal government, when it appropriated the moneys, gave the state significant flexibility in deciding how the moneys are distributed and used. See MacManus v. Love, 179 Colo. 218, 499 P.2d 609 (1972); Colorado General Assembly v. Lamm, 738 P.2d 1156 (Colo. 1987); and Interrogatories submitted by General Assembly on House Bill 04 1098, 88 P.3d 1196 (Colo. 2004).

Obviously, therefore, there are limitations on the General Assembly’s plenary power. The courts usually identify and explain those limits when someone files a lawsuit challenging the constitutionality of a law. But, once a bill becomes law, that law is presumed to be constitutional; the Supreme Court will find it unconstitutional only if the person challenging the law can prove unconstitutionality beyond a reasonable doubt. See People v. R.M.D., 829 P.2d 852 (Colo. 1992).

The legislators in the General Assembly also decide whether a bill is constitutional when they decide whether to vote for it. If a legislator questions whether a bill is within the General Assembly’ plenary power, he or she may request a legal opinion from the Office of Legislative Legal Services. The OLLS will usually find that a bill is within the General Assembly’s plenary power unless there is clear language in the constitution that specifically prohibits the bill or the Colorado Supreme Court has already found similar legislation unconstitutional. Even if the OLLS says that a bill may have constitutional issues, it’s the legislators who decide the constitutionality of the bill by casting their votes.