Senate Republican Minority Whip Andy McKenzie (R-Ohio) gave a resounding speech on the floor today, rebuking the Attorney General Darrell McGraw for his broad reach of power and calling for the Senate Democratic leadership to restore their constitutional boundaries.

The Democratic leadership in both houses has abdicated much of their legislative authority to the executive branch. In this instance, the Attorney General is handing out the money received from state settlements. This is akin to you hiring a lawyer to sue on your behalf and instead of the lawyer giving you the settlement, he doles it out to his favorite charity. It’s time, said McKenzie, for this practice to end.

“Mr. President, I rise today to speak to a matter that is quickly becoming an increasing problem upon the foundations of our government. It is a matter that transcends any single bill or any single political party. Rather, it is a matter which challenges each of us as a member of this Senate body, which challenges each of us as members of the Legislative Branch of government, and which challenges each of us as citizens of an American system of government which entrusts three separate, but co-equal branches of government.

“Members of the Senate, the matter I rise today about is the systematic, fundamental, and blatant intrusion by the Attorney General upon the Constitutional powers and duties of this Senate. As a part-time Legislative body, we often become focused and blinded by singular issues and bills, that we are rarely able to digest or fully comprehend the broader nature of our actions until well after we are gone. However, given recent news reports and a fear that we may lose the pillars of our constitutional equality, it is time we step back and collectively strengthen the foundation of this branch which has become withered, challenged, and sometimes disregarded.

“The recent news article pronouncing the disbursement and appropriation of money by the Attorney General’s Office was a blatant assault upon this body. No where…No where in our Constitution is an executive office empowered to take money belonging to the state and hand it out at its sole, unfettered discretion. Aside from being an affront to each and every taxpayer and citizen of this state who rightly deserve that money, it is a blatant disregard for the Constitution.

“Article X, section 3 of the West Virginia Constitution states:

“‘No money shall be drawn from the treasury but in pursuance of an appropriation made by law, and on a warrant issued thereon by the auditor; nor shall any money or fund be taken for any other purpose than that for which it has been or may be appropriated or provided.’

“The Office of Attorney General is an Executive Department and lacks the power to appropriate funds. The only branch that possesses that power is this branch. The Attorney General is Constitutionally barred from collecting, maintaining, and then appropriating that money as he sees fit. Article VI, section 51 expressly dictates and provides for the appropriation of money by the Legislature Branch. But even more clear than this Constitution, the West Virginia Supreme Court expressly stated in State ex rel. West Virginia Board of Education v. Miller: ‘The power to appropriate money is vested exclusively in the legislature.’ The Attorney General’s Office is not a legislative body, and it must stop acting as such.

“Aside from the Constitution and statutory prohibitions, our sister branch has also asserted the prohibition against the actions of the Office of the Attorney General. In case-after-case, our Supreme Court of Appeals has upheld the sanctity of the separation of powers doctrine outlined in Article V, section 1.

“‘The Constitution, in distributing the powers of government, creates three distinct and separate departments–the legislative, the executive, and the judicial. This separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital, namely, to preclude a commingling of these essentially different powers of government in the same hands.’

“As further reinforcement, the Supreme Court in 1981 went on to hold that:

“‘Article V, section 1 of the Constitution of West Virginia which prohibits any one department of our state government from exercising the powers of the others, is not merely a suggestion; it is part of the fundamental law of our State and, as such, it must be strictly construed and closely followed.’

“Yet, despite both clear prohibitions, the Office of Attorney General continues to disregard these Constitutional checks and balances. By law, he is not permitted to act on his own behalf.

“While the charities and projects to which our State’s elected lawyer dispenses money to may indeed be deserving, it does not negate the fact that 1) the money does not belong to the Office of the Attorney General, and 2) it does not have the authority to appropriate and disburse money as it sees fit. Only this Legislative Branch has that authority and we, last time I checked, had not given that authority away.

“Indeed, Mr. President, the time for action is upon us. The occasional whispers, and muted calls for change, need to be heard. We need to assert ourselves as the equal branch that our Founding Fathers envisioned. Collectively, we can force change. Most importantly, collectively we can exercise our strength and not abandon the power that the Constitution bestows upon each of us.

Thomas Jefferson once remarked that ‘If the three powers maintain their mutual independence on each other our Government may last long, but not so if either can assume the authorities of the other.’ The Office of the Attorney General is assuming our legislative authority, and it must be held in check.”

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Senate Majority Leader Truman Chafin (D-Mingo) is a friend of the Attorney General’s and was very upset with the speech. He was agitated so much that when Senator Weeks (R-Raleigh) asked for unanimous consent that Senator McKenzie’s speech be put in the appendix of the journal — a courtesy all Senators give without objection – Chafin raised his voice in dissent. That forced a vote which passed the motion overwhelmingly.