The last decade has not offered up
a textbook example of how pluralistic democracy is intended to work in our
country. With the exception of the Affordable Care Act, Congress has been tied
in knots and unable to address social and economic issues important to the
American people. This pervasive
“vetocracy” where collective action is impossible and nothing is accomplished
has frustrated elected executives and sitting judges at both the national and
state levels.
Chief executives and members of the
judiciary have begun to take matters into their own hands. They are pushing the envelope on their limits
of power to loosen the logjam and gain results. Whether this trend is a good
thing remains to be seen. What is clear is that these actions, taken to cut
through legislative or procedural red tape, often come with unintended
consequences.
President Obama has recently
invoked executive action on two fronts: immigration and gun control. His statements make clear that chronic
congressional inaction compelled him to act.
His executive orders, largely ineffective in changing the status quo on
immigration or gun control, have still been met with conservative cries of
“abuse of constitutional power.”
Irate republicans immediately
challenged the executive orders in the federal court system. This forces the
federal courts to assume the congressional role of deciding the regulatory and
social landscape rather than performing its more limited constitutional role of
“check and balance.” One need look no
further than the recent Supreme Court decision striking down State objections
to gay marriage. What Congress could not
accomplish, the Supreme Court did.
Before one gets too excited about this long overdue result, consider the
future ill effects of letting the Supreme Court usurp the constitutional
responsibilities of Congress when too many conservatives are wearing the black
robes.
Pennsylvania is also a recent
example of executive action pushing the envelope into new territory, where few
Governors have gone before. When Governor
Wolf could not achieve his budget objectives, he sliced and diced the limited funds republicans presented to him
in an attempt to keep political leverage on republicans to pass a full budget. Now the Pennsylvania School Board Association
is suing him for arbitrarily dispensing funds for education. Many believe the lawsuit is on solid ground
and that the Governor’s actions to disperse the funds were illegal.
The Pennsylvania Supreme Court
could not resist getting in on the action to push the envelope on accepted
judicial procedure. The Justices revoked
Attorney General Kathleen Kane’s legal license prior to any hearing to determine
her guilt or innocence on criminal perjury charges. Defense attorneys throughout the state are
now filing Motions to have proceedings against their clients dismissed on the
theory that Ms. Kane is making prosecutorial decisions without a license.
Ms. Kane is fighting back against the ill
advised pre hearing suspension. Her
argument is that permitting Justice Eakin, who was the focus of the Attorney
General’s “porngate” probe, to rule on her suspension was inappropriate. This point has merit now that Justice Eakin
is himself the subject of disciplinary
proceedings.
Attorney Bruce Ledewitz, a Duquesne
University law professor has commented on the Supreme Court actions as
follows: “They brought this upon us.
Lawyers don’t generally lose their license when they face charges. You go to
trial and if you are convicted then you lose your license. The court had no
role here.” (Pittsburgh Post Gazette, 1/12/16)
By jumping the gun, the Supreme Court has taken the focus off the
serious perjury charges against Ms. Kane and unnecessarily confused the issue.
While I believe that all of the
executive and judicial actions described above were good intentioned and sought
results I actually agree with, the trend is a bit frightening. I would not want to see a new reality where elected
executives and judges are free to step outside the lines of our state and
federal constitutions with great regularity.
The problem is that envelope
pushing in the wrong hands can quickly become abuse of power. One could easily image a President Trump taking
unilateral actions based on demagoguery rather than reason. In our messy
democracy, the slow road, no matter how fraught with political or procedural
potholes, is often the right road.
