Save Rutgers: OLS Confirms Christie Cannot Merge Rut-Row by Executive Order

I have literally been saying it for months now, but the Office of Legislative Services (OLS) has just backed up my claim. According to a slightly redacted research document obtained by the Star Ledger, Governor Christie will not be able to administer the Rowan takeover of Rutgers Camden with an executive order.

For those of you who are unfamiliar, OLS is the nonpartisan arm of the New Jersey Legislature. They are tasked with fact finding research, drafting bills, and determining the financial impact of legislation for members of both parties, pretty much on command. They will literally research almost anything a legislator can think of. Even if it is a total waste of time.

Anyway, I have digressed. All four proponents of the Rutgers Camden takeover, including Rowan University itself, were banking on the idea that Governor Christie could simply issue an executive order and this issue would be settled. They were claiming power under the Executive Reorganization Act of 1969 (ERA) to make it all happen.

Well, as I reported before, that is not the case…

The ERA is preempted in the case of higher education thanks to the Higher Education Restructuring Act of 1994 (HERA). HERA disbanded the state department of higher education and explicitly removed public higher education from reorganization under the ERA. Higher education from that point on had a level of autonomy from the state government that it had not previously enjoyed.

According to the Star Ledger report, the OLS document leans heavily on the latest COAH court decision, where the court ruled that Governor Christie could not dismantle COAH without an act of the legislature. The court found COAH too autonomous to be considered a part of the executive branch for purposes of the ERA. The Star Ledger did not post a copy of the document, but I would be shocked if the HERA were not also mentioned in its reasoning. Additionally, the name of the legislator who requested the research had been blacked out and the document redacted to protect his or her identity.

I want to be perfectly clear, Save Jerseyans. Do not get too excited about this finding. It is great news, but it  unfortunately does not change much, for a few reasons.

  1. Governor Christie likely has lawyers in his office telling him that he can in fact use the ERA to do this, and they likely have some sort of legal argument to back it up, no matter how weak. This means that he may attempt to issue an executive order, and then it will have to be fought out in court.
  2. The Governor has already stated that he will be appealing the COAH decision and could win, which would damage the anti-merger position. (But I hope the legislature has the sense to act and gets rid of COAH before we have to waste taxpayer money furthering the lawsuit).
  3. OLS legal opinions are not legally binding.
  4. There is no telling how this issue would go in the legislature. It would go through as normal legislature, therefore 41 Assembly members and 21 Senators are needed to pass it. If the GOP falls in line with the Governor and the South Jersey Norcross Democrats do the same for their leader, those numbers will not be hard to reach. It is possible that some Essex Democrats who want to protect University Hospital and UMDNJ may try and stop the bill, but I have a feeling that will not be enough.

This news almost gives the Governor a bit of cover on the issue. He has been taking a ton of heat on this issue, far more than he and his office expected I am sure. If the decision comes down to the legislature and the legislature alone, it redirects some of the justified anger coming out of South Jersey. Much like with the gay marriage bill earlier this year, we all know what the Governor will going to do when the bill reaches his desk. The fault rests with no one but our legislators if they allow it to get there in the first place.

You know what that means. The anti-merger (anti-takeover?) movement has a new target to focus on. I suggest we start today.

Brian McGovern
About Brian McGovern 748 Articles
Brian McGovern wears many hats these days including Voorhees Township GOP Municipal Chairman, South Jersey attorney, and co-owner of the Republican campaign consulting firm Exit 3 Strategies, Inc.

6 Comments

  1. Thanks for the coverage on this. Will you be posting information on where those of us who are against this merger should be focusing their letter-writing efforts?

  2. I have to admit I have been consumed with the political side of this and have not looked far enough into the issue of the two boards. I cannot really speak to it at this time. If I find anything you know I'll write about it.

  3. South Jersey wants to keep the name, North Jersey wants to keep all of the funding. Sounds win-win to me.

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