When government reverses an established
policy, the move can range from a “flip-flop” to outright
“nullification.” A “flip-flop” is a switch in policy.
Nullification is a move to ignore the law.
President Trump and his administration
have been busy reversing measures adopted by his predecessor,
President Obama. Executive orders go back to George Washington.
Obama used them as a form of legislative action when a GOP Congress
blocked his proposals.
The GOP criticized Obama for his
excessive use of executive orders, though Congress could never
overrule him. No effective legal action was attempted to halt his
use of such orders. But some state attorneys-general were able to
get courts to suspend his immigration rules.
Now the situation is reversed. Even
with a Republican Congress, Senate Democrats have the votes to block
repeal legislation. So Trump has done just what Obama did, issuing
his own executive orders to revoke Obama’s actions.
Lacking many bills bearing his imprint,
Trump has made a big show of ceremonies in which he issues executive
orders. He tries to elevate these orders to the level of signing an
act of Congress.
Then, executive agency actions are
designed to reverse policies of the previous administration. That is
normal, but these course changes seem to be more prevalent under
Trump. At the U.S. Supreme Court, the Justice Department has
abandoned many Obama-era positions in the middle of cases.
The most obvious policy switch came
recently on marijuana, which is a controlled substance under federal
law. The Obama Justice Department dropped almost all enforcement of
that law in states that permit the medical or recreational use of
marijuana. Its action opened the way for several states to legalize
marijuana.
Attorney-General Jeff Sessions has
revoked the Obama policy and directed U.S. attorneys around the
country to enforce the law without regard to state laws. While his
action brought out strong opposition, it is difficult to fault him
for enforcing the law.
The Wall Street Journal pointed out
evidence that legalization has encouraged illegal activity rather
than halting it. It also noted that a majority of Americans favor
legalization.
If marijuana production and possession
are to be made legal, it is up to Congress to do the job. It passed
the existing law, but it looks like members want to avoid
responsibility for legalization. Yet, that’s exactly their job,
far more than Sessions’.
In 2017, Congress focused on the
Affordable Care Act and taxation. The Republicans saw these as
issues on which it had made promises and it could claim credit.
Almost all other issues of real consequence were untouched. Voting
on issues may be controversial, so Congress prefers to leave many
decisions to the president or other officials.
With no fingerprints on such decisions,
members of Congress are free to criticize. They leave the impression
of runaway government, when they don’t take responsibility.
Flip-flops instead of established policy are acceptable. In short,
the reason flip-flops are the norm is the failure of Congress to act.
At the state level, policy switches may
be even more serious. In Washington State and Florida, the
legislatures are moving toward taking authority to nullify state
court decisions on the constitutionality of the laws they have
passed. Legislators claim judges have become, well, legislators.
They may be correct, but they should
influence court action by better defining court jurisdiction and
exercising greater care in confirming judges, avoiding picking them
solely for their political views. Otherwise, nullification can
overcome the essential separation of powers.
Nullification has a long history in the
U.S., associated with southern states fighting against federal action
on slavery. It is a direct attempt to deny decisions made according
to the approved constitutional process.
These days, the best example of
nullification is found in Maine. Under the state constitution, the
people, rather than their representatives, may vote to adopt
legislation. When they exercise their democratic right, they make
law.
Last November, Maine voters passed a
law to adopt the Medicaid expansion made available under the ACA.
While the Legislature had previously passed such a law, Gov. LePage
had vetoed it.
But, under the state constitution,
there is no veto of laws passed by the people. The governor may be
unhappy with the vote of the Maine majority, but he does not have the
right to block the law enacted by the people, just what he and some
GOP supporters now want to do. The people are sovereign, not the
governor.
Congressional failures, tampering with
the separation of powers and outright nullification are all threats
to core values of our political system.
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