February 2, 1995
The Honorable John R. Gamble, Jr., M.D. North Carolina House of Representatives Legislative Office Building Room 416B Raleigh, North Carolina 27601-2808
RE: Advisory Opinion; Authority of the North Carolina House of Representatives to Adopt a Rule Limiting the Introduction of Bills
Dear Representative Gamble:
You ask our opinion whether the North Carolina House of Representatives may constitutionally adopt a rule limiting the introduction of bills. For reasons which follow, it is our opinion that the members of the House may adopt a rule that limits the number of bills that each member may introduce.
The pivotal question is whether members of the North Carolina House of Representatives have an inherent prerogative to introduce bills.
Historically, in both the United States House of Representatives and the North Carolina House Representatives, the introduction of bills was not the right of the individual member. It was the prerogative of the legislative body. In the First Congress, the House of Representatives adopted a rule that "[e]very bill shall be introduced by motion for leave, or an order of the House on the request of a committee, and in either case a committee to prepare the same shall be appointed." Journal of the House of Representatives 11 (First Cong., First Sess.). This practice continued in the United States House until the mid 1850’s. 4 Hinds Precedents of the House of Representatives 283-85. In North Carolina, at least through the 1831 Session, the rule of the House required that members have leave from the House to introduce any bill. By the 1832 Session, it appears that the House dropped the rule requiring leave to introduce a bill, although the rule was not changed in 1832. As Rule 46 of the attached 1891 House rules provided: "Every bill shall be introduced by motion for leave, or by order of the House, or on the report of a committee." In the 1893 Session, the House rule was changed by adding to Rule 46 the words and punctuation ", unless introduced in regular order during the morning hour."
Since North Carolina became a state in 1776, three Constitutions have been adopted. The first Constitution was adopted in 1776 and remained in effect until the second Constitution was adopted in 1868. Our present Constitution was adopted in 1970. None of the Constitutions, including the present one, contain any provision for the House to adopt rules, although clearly that is a power inherent in the House. Under the first two of our Constitutions, as we have already discussed, the House had rules which limited members from introducing a bill except by leave of the House. Most importantly, there is nothing in any of our Constitutions which prohibits either the House or the Senate from enacting rules which govern its operation. The Supreme Court of North Carolina has on numerous occasions stated that the Constitution of North Carolina is a limitation on the power of the General Assembly, not a grant of power to it; and, that the General Assembly possesses all political power not prohibited by the Constitution.
As long as the Constitution does not prohibit the General Assembly, or one of its Houses from taking action, it is the prerogative of the General Assembly to do what it deems in the best interest of its members and the citizens of the state. Mitchell v. N.C. Industrial Development Financing Authority, 273 NC 137 (1968); State ex rel. Milk Commission v. Galloway, 249 NC 658 (1959); and Morris v. Holshouser, 220 NC 293 (1941).
This was recognized by the framers of the Constitution of 1970: The legal nature of a state constitution derives from the nature of the state in the American system. In theory, the people of each state are sovereign–the source of all political power within that state. Through the medium of their state constitution, they have endowed their state government–especially the legislative branch–with all of their governmental powers except those reserved to the people by the terms of the constitution itself. The states in turn, through the United States Constitution and its amendments, have delegated a portion of their powers to the United States. The result is that the United States is a government of enumerated powers, while the state governments possess all powers not denied them by the terms of their own constitutions or the federal Constitution. A state constitution is not a grant of enumerated powers. To the extent that it grants powers, it does so in the broadest possible terms–it says, for example, that `The legislative authority shall be vested in . . . a Senate and House of Representatives.’ Thus when a question arises as to whether the General Assembly possesses the power to enact a proposed measure, the presumption is that it does have the power unless in the state constitution itself or in the federal Constitution some denial of that power can be found.
It is essential to keep this point in mind in interpreting state constitutions, for what may appear in form to be a grant of authority to the General Assembly to act on a particular matter normally is in legal effect a limitation, not a grant . . . . 1968 Report of the North Carolina State Constitution Study Commission.
It is our opinion, therefore, that the North Carolina House of Representatives may by rule limit the number of bills introduced by individual members without running afoul of the North Carolina Constitution.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General