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Pushing the envelope on executive and judicial action

4 min read
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The last decade has not offered a textbook example of how a 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 started to take matters into their own hands. They are pushing the envelope on their limited powers in order to loosen logjams and get results. Whether this trend is a good thing or not 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 in either area, have still been met with conservative cries of “abuse of power.”

Irate Republicans immediately challenged the executive orders in the courts. This forces those courts to assume the legislative role of deciding the regulatory and social landscape rather than performing its more limited constitutional role of providing checks and balances. 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. But before we get too excited about this long overdue result, consider the future ill effects of letting the Supreme Court usurp the constitutional responsibilities of Congress if too many conservatives are wearing black robes.

Pennsylvania is also a recent example of executive action pushing the envelope into new territory. When Gov. Tom Wolf could not achieve his budget objectives, he sliced and diced the limited funds Republicans presented to him in an attempt to maintain leverage and get a full budget approved. Now the Pennsylvania School Board Association is suing him for arbitrarily dispensing funds for education. Many believe the lawsuit’s rationale stands on solid ground and that the governor’s dispersal of funds was 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 law 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 Kane is making prosecutorial decisions without a license.

Kane is fighting back against this ill-advised move. She is arguing that permitting Justice Michael Eakin, who was the focus of the Kane’s “porngate” probe, to rule on her suspension was inappropriate. This point has merit now that Eakin is himself the subject of disciplinary proceedings.

Bruce Ledewitz, a Duquesne University law professor, told the Pittsburgh Post-Gazette, “(The Pennsylvania Supreme Court) 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.”

By jumping the gun, the state’s highest court has taken the focus off the serious perjury charges against Kane and unnecessarily confused the issue.

While I believe that all of the executive and judicial actions that I have described were well-intentioned and sought results I 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 an abuse of power. One could easily image a President Donald Trump taking unilateral actions based on demagogic whims rather than reason. In our messy democracy, the slow road, no matter how fraught with political or procedural potholes, is often the right road.

Gary Stout is a Washington attorney.

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