Governor makes rare move in executive-legislative battles

Gordon L. Weil

The tug of war between the executive and legislative branches keeps taking new turns.

In theory, the legislative branch is supposed to set policy through passing laws. Legislators can submit proposals for consideration and many of their bills are adopted. The executive branch is assigned the task of carrying out the laws.

In fact, the executive has become the principal source of legislative proposals. Presidents and governors serve up a package of proposals to legislatures every year or two. Lawmakers have become dependent on these bills and expect to focus much of their effort on reacting to them.

Once laws are passed and given the complexity of issues, the executive often is assigned responsibility of adopting detailed rules to apply broad legislation. Rulemaking has become a major form of legislating

The result has been that the development of much of new legislation has passed from the legislative branch to the executive. With that shift has gone much of the power of Congress.

This transfer of legislative power may explain why President Trump apparently has seen Congress as his board of directors, whose job is to review and approve his proposals for U.S.A., Inc. Surely, Congress is not a branch of government with equal or greater weight than the executive, in his view.

At the state level, some have developed “strong” governor systems and others “weak” governor systems. The decision is made by the state constitution, the legislative body or by custom over the years.

In Wisconsin, for example, the incumbent Republican governor lost in an upset to a Democrat. Before he left office, the GOP legislature adopted and he signed new laws drastically reducing the governor's powers. In effect, they turned a strong governor position into a weak one as a way of undermining the winner..

The new governor challenged some of those laws in court and lost. The complete reversal of the historic relationship set back the principle of checks and balances.

An unusual twist on the governor-legislature relationship has just occurred in Maine.

In her State of the State speech last week, Gov. Mills openly worried that foreign corporations were operating electric utilities to put their profits before consumers' interests. She expressed concern that utility regulation might not be doing enough to ensure that “utilities are accountable and answerable to the people of Maine.”

She said to the Legislature, “I ask your guidance and your help in making sure that these foreign corporations...are answerable to Maine, not Spain or some other foreign country.” She was referring to the foreign owners of CMP (Spain) and Emera Maine (Canada).

An almost immediate reaction from some in the media was that she had failed to provide a proposal to the Legislature. Action would have to await more specifics from her.

Here was the odd situation of the governor asking the Legislature for “guidance,” just as constitutions expect, and finding herself faced with a reaction that she should have guided the lawmakers.

There is a menu of options from which policy makers might choose, and the governor seems to be open to considering a choice by the Legislature.

It could adopt the bill proposed by Rep. Seth Berry, which calls for a non-profit utility, owned by its customers, to buy out the two foreign corporations. That would exactly meet her requirements.

It could send Berry's bill to a referendum this year to let the people decide to acquire the system from the two utilities.

It could instruct the Public Utilities Commission to deny any profit whatsoever to investors in those utilities if their management failed to provide reliability at a specified standard and subject to a cap on rates set by law.

Or, it could tell the governor that she exaggerates the problem, and nothing needs to be done.

Her request opens the door to a bipartisan answer, if the two parties can agree. Certainly, it implies they ought to try.

If the Legislature in unable to respond favorably and cannot give the governor the guidance she requests, she must turn the tables and guide the lawmaking. With a Democratic majority in both houses at least until the end of the year, she would have an incentive to take clear action with the support of her party.

With her strong statement of concern about the utilities, Mills has set government on this path. She has put herself in the position that she cannot walk away from the issue. The Legislature has been invited to address it through an effort between legislative and executive branches and between Democrats and Republicans.

This situation goes beyond the future of electric utilities in Maine. It marks an unusual opportunity for the effective operation of American government as it was intended.

Dems want to 'pack' Supreme Court; here's a better idea

Gordon L. Weil

At least five of the Democratic presidential candidates, including Elizabeth Warren and Amy Klobuchar, worry a Democratic president would face a hostile Supreme Court and want to add more justices to the Court.

Senate Majority Leader Mitch McConnell has used his GOP caucus to block judicial nominations by President Obama and open the floodgates for President Trump's conservative choices for lifetime appointments.

The GOP majority sets the Senate rules and has used them to deny Obama's nominations. Then, the GOP approved almost all Trump nominees without any serious review.

Trump likes to flaunt his claimed presidential superiority over Obama, saying his predecessor lacked the skill to get his nominees confirmed, while Trump mastered the process. He ignores McConnell's role.

Republicans want to continue conservative control even if the GOP loses control of Congress and the presidency. This is not new. The Federalists, the party of George Washington, dominated the Supreme Court for decades after that party permanently lost power.

Democrats in power could face an avalanche of lawsuits from opponents against the laws they adopted. The conservatives would hope for a like-minded Supreme Court majority to overturn the new laws.

President Franklin D. Roosevelt faced that situation in the 1930s. Only his threat to add more justices to the Court and his stunning 1936 victory caused a Court reversal, remembered by the saying "a switch in time saves nine."

Democratic candidates now advocate enlarging the Court, if and when the Democrats control the federal government. In that way, the Democrats could frustrate the McConnell strategy by overwhelming the conservative justices by an influx of more liberal justices.

The size of the Supreme Court is set by Congress, so the size of the Court might readily be changed. This has been done. For example, during the 1860s, the size of Court changed from nine to ten and then down to seven before returning to nine. The changes were political.

Roosevelt's so-called "Court packing" plan was not popular, even with Democrats. It seemed to drag a supposedly neutral court into the politics of the day. Would it be different today?

The Court back then was obviously opposed to Roosevelt's New Deal. But many saw the split as a philosophical difference, not partisan warfare.

But since then, the Court literally selected a Republican president in 2000. One justice later admitted her partisanship in joining in the 5-4 majority. Justices are appointed from a list provided by a conservative organization that has never supported a Democrat. They are expected to reverse Democratic-passed laws.

Some Democrats, including Joe Biden and Bernie Sanders, oppose adding justices. They may worry about launching an ever-escalating number of appointments used to achieve partisan advantage.

If there's a sense something short of "packing" is needed, there is a viable alternative. Congress and the president could agree to the appointment of "temporary" justices. Even though federal judges are appointed for life, it's possible.

That has been done more than once, the last in 2013, when a law created 17 temporary federal judges. These are lifetime appointments, added to the existing, "permanent" judges on district or appeals courts. When a vacancy occurs among the permanent judges, no new appointment is made and the "temporary" judge fills the slot.

Using this approach, the Democrats could increase the size of the Supreme Court temporarily. They could ensure the conservative and partisan packing done by McConnell would be replaced by a process allowing for more balance or even a tilt to the liberal side.

Suppose Obama had proposed to fill the last vacancy with Republican favorite Brett Kavanaugh in the permanent slot and Merrick Garland, his choice who was completely blocked by McConnell, to a temporary position. McConnell might have turned the proposal down, but it would have highlighted the issue.

Such a move by Obama would also have set the stage for the president who succeeds Trump. And the possibility alone could influence Republican senators even before then.

The proposal could be tied to the judicial workload, one of the driving forces behind the "temporary" judges. The nine justices now only hand down about 70 decisions a year, far fewer than in the past. More justices could allow it to avoid leaving major national decisions to lower courts and to produce faster results.

The Democratic candidates should focus more on the Supreme Court. Among the decisions made by any president, appointments to the Court may have the longest-lasting effect.

"Temporary" justices, nothing new in U.S. history, could be the way to divert the Court from its current course toward becoming a partisan legislative body.

Collins' 'least popular' rating raises questions about survey

Gordon L. Weil

Maine news media announced last week that Susan Collins ranks as the "least popular" of all 100 members of the U.S. Senate.

That sounds like bad news about her chances for re-election this year. But there's good reason to dig deeper into that report.

The results came from a survey (https://morningconsult.com/senator-rankings/) of an average of 27 to 30 Maine voters each day during the last three months of 2019. A major problem with this poll, like many others, is that many people often refuse to participate, which could somewhat undermine the result. The reader has no way of knowing just how good any poll may be.

The survey does not really ask about popularity. Instead, it asks voters if they "approve" or "disapprove" of a senator's "job performance."

The most popular senator, Vermont Democrat Bernie Sanders, has the highest approval rating. With 52 percent disapproval, Collins has the highest disapproval rating in her own state. Only 6 percent is undecided, seeming to make her 42 percent favorable vote reasonably secure.

Her favorable rating ties her or places her ahead of a surprising 25 other senators' favorable scores. That means Collins has a favorable rating equal to or greater than one-quarter of the U.S. Senate. She may be the most unpopular, but that's not the only message. She retains a good deal of popularity.

There's another question raised by the data. There are 25 women in the U.S. Senate right now. Among the top ten in popularity, there is only one woman. But among the ten least popular, six are women.

While it seems unlikely to be the case in Maine, which has a tradition of electing women to the Senate and House, the imbalance in the ratings may reflect something more than simply a job performance rating.

Focusing on the least popular senators, right behind Collins comes Sen. Mitch McConnell of Kentucky, the GOP Senate leader. In third place is Sen. Lisa Murkowski of Alaska, sometimes linked with Collins as a moderate in taking issue with McConnell.

With 50 percent disapproval, McConnell may be vulnerable to a credible re-election challenge in his normally solidly Republican state. GOP concern could run even further. Of the ten least popular senators, seven are Republicans. Among the most popular, the Democrats lead by 6-4.

Collins has run into the possibility of losing support from independents and Democrats, while also seeing the GOP turn to the right, away from her more traditional positions. But McConnell runs in a strongly pro-Trump state, having been the most loyal soldier imaginable in support of the president.

This Morning Consult rating may reveal an emerging trend, so it will be worth watching carefully what happens when the next survey is published three months from now.

It is likely that the next survey will reveal the effect of senators' votes in the trial of the president on public impressions of how well they are doing their jobs.

If the trend continues for Collins and intervening votes do not change it, she will have to seek ways quickly to improve her standing. In the meantime, she may not want to be too closely tied to the controversial McConnell, who may have his own problems.

The importance of this survey is not the cold numbers, but the temper of the voters that it reveals. It has certainly focused attention on Collins' challenge.

The survey also covered Sen. Angus King. It reported he had a 58 percent favorable rating, ranking him fifth in the Senate. The wide difference between him and Collins among Maine voters sheds some light on the seriousness of her problems.

The survey also ranked governors. Gov. Janet Mills was the seventh most unpopular governor with a 45 percent unfavorable rating. Her positive rating was 47 percent.

Four of the bottom ten governors are women, but only one of the top ten is a woman. There are nine women governors in the 50 states.

Finally, the survey looks at President Trump's popularity by state. His outlook is somber, including in the key swing states he carried in 2016. If the Democratic nominee carried all the states where Trump has a net unfavorable rating, she or he would win easily. But Maine is reasonably close, 46 percent favorable to 52 percent unfavorable.

'Checks and balances' don't work; more proof from Iraq assassination

Gordon L. Weil

"Checks and balances" are the hallmark of the American political system.

But it is increasingly clear that they don't work.

The idea is to have three equal branches of government, legislative, executive and judicial. If each can limit the scope of action of the other two, the result should be a government that avoids dangerous excess and abides by the rules of the relationship.

If any proof is needed that the system is failing, President Trump provided it last week.

In a test of military force against Iranian elements operating in Iraq, the U.S. retaliated for an attack that killed an American and the Iranians in turn besieged the American Embassy in Baghdad. Then, in Iraq, the U.S. killed Qassem Soleimani, a top Iranian general, responsible for some of his country's brutal aggression.

How was Trump authorized to assassinate a military officer moving publicly in a country that accepted his presence? In these days of terrorism, Congress can no longer strictly use its war power. It allows the president to carry out military action in case of an "imminent" threat.

In other words, the president is authorized by Congress to act on his own when the danger to the U.S. is likely to occur so quickly that a defensive action is needed before Congress could approve it. The president is then required to report rapidly to Congress on the action taken.

Trump officials were slow to report and, when they did, they could cite no immediate threat. Without doubt, Soleimani was a murderous and dangerous enemy, but there was no clear or consistent reason given to Congress or the public that there was an imminent threat.

So what? Congress can pass laws but, if the president flaunts them, there's not much it can do short of impeachment. But, as we are seeing, that can become a partisan battle and it's quite rare. The third branch of government gets no role at all. So, despite the law, there are no checks and balances.

Admittedly, this assassination is an extreme case. More generally, the drafters of the Constitution meant Congress to wield most power and to limit the president so as to prevent the revival of royal rule. Now, public policy has become so complex that Congress routinely passes its legislative powers to the executive branch.

At the same time as Congress has been losing control of the president and the executive branch, the Supreme Court has been whittling down its authority. The Court has ruled that it decides if laws are constitutional, allowing it to nullify congressional action.

If it was possible to discern the pecking order of the power of checks and balances foreseen by the founders, it was Congress first, president second, courts third. Today, it looks more like president first, courts second, Congress third.

Perhaps this is an inevitable historical evolution. The founders certainly understood that the world would change and their original plan would need to be updated.

The Constitution itself may need to evolve to deal with a changed world. But it is regarded as being carved in stone. Many worry that if the Constitution were opened for amendment, some basic rights would be eliminated. So Americans are essentially left with a changing system controlled by the government itself.

If anything, the situation in Maine is even worse. Every bill passed by the Legislature proclaims that it was enacted by the "People of the State of Maine." Of course, it was only adopted by their legislative representatives.

Maine people can themselves adopt legislation. They may initiate bills and require referendums on legislative proposals, even going so far as to halt a law going into effect. They may appropriate money.

In 2014, more than two-thirds of Maine voters approved borrowing $14.5 million to be spent on affordable housing. Those funds would make it possible for the state to receive outside funds to multiply the effect of the state spending.

Gov. Paul LePage refused to carry out his administrative responsibility to let the state bonds be issued. He said the money would enrich the builders, which would invest too little themselves. Despite the vote, the governor ignored the state's ultimate legislators.

The Legislature did nothing. LePage got away with it. It did not even try to strip the governor of his administrative power over later bond issues. Where were the checks and balances?

Eventually Gov. Janet Mills allowed the bonds to go forward and matching funds became available. But years had gone by and people had suffered as result of the delay.

When people hear of "checks and balances," they should understand it's false advertising.