Policy Wonk: LePage exercises powers he doesn't have

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Gov. Paul LePage has again claimed the power to refuse to issue voter-approved bonds. This time elderly housing bonds are blocked.

He has frequently claimed powers he does not have.

The powers and duties of the governor are laid out in the Maine Constitution, which says: “The Governor shall take care that the laws be faithfully executed.”

Other Constitutional provisions impose express limitations on gubernatorial powers: “Any measure referred to the people and approved by a majority of the votes given thereon shall … become a law … 30 days after the Governor has made public proclamation of the result of the vote on said measure.”

The Constitution also says: “The veto power of the Governor shall not extend to any measure approved by vote of the people.”

The power to issue voter-approved bonds is also laid out in a section of the Constitution that describes voter-approved bonds as “enactments,” i.e., laws. The governor and his gubernatorial powers are not mentioned anywhere in that discussion, or as exceptions to it.

Bond issuance, including the re-authorization of expired bonds, is in the hands of the Legislature and/or the people, exclusively. The governor has no role, except to certify the vote of the people.

The governor has claimed that legislative language in bond authorizations clothes him with the powers he would exercise. That is not possible. The Constitution is the supreme law of the state. An early Maine case, State v. Doherty, made this clear: “The Legislature has no authority to authorize or to confirm any infraction of the Constitution.”

In sum, the governor cannot be allowed to exercise powers he does not have. I have long urged legislative leadership to bring these matters to a head by seeking an opinion of the Supreme Judicial Court. Here is my most recent letter, to Sen. Roger Katz, R-Augusta, repeating this request:

“I admire your continuing efforts to legislatively force the governor’s hand to issue voter approved bonds. But again your efforts to override the governor’s veto have been blocked in the House. He finally relented on the Land For Maine’s Future Bonds, but not until 18 months had passed; some projects were lost or made more costly. He’s held out for nearly 18 months on the Elderly Housing Bonds.

“Sen. Thibodeau is correct; (the governor’s) role at this point is ministerial. He doesn’t have the legal power to (block issuance). Can’t we please bring this issue to a head by seeking an opinion of the Justices? I’ve made this request for nearly four years now, going back to highway bonds, and his refusal to make appointments to the Maine Board of Corrections, which eventually led to the unraveling of the statewide approach to funding county jails and returned those facilities to individual counties; then he sought to bargain terms for the re-authorization of expired bonds, beyond those laid out in the Constitution. Again, he does not have the legal power to do this.

“It will never end; the governor continually asserts powers he does not have or refuses to execute laws he does not like. His recent spat with the state treasurer over the sale of highway bonds is just another example. She graciously acquiesced, so that a whole construction season would not be lost, but his demand that she do what he wanted done was inappropriate. If he wants to propose legislation to confine the treasurer’s prerogative with respect to bond sale counsel, fine – let him do it. But until such legislation is adopted, she is the state treasurer. There is no hint that her actions were inappropriate or in any sense illegal.

“I’ve spoken with House Speaker Sara Gideon in the hope that she would take the same position I’m urging you to take. No response. I’ve spoken with (her husband) Ben Gideon, a respected lawyer, in the hope he would persuade Sara to take this position. He has a copy of my entire legal file on this matter. No response. I’ve urged Senate President (Michael) Thibodeau to seek an opinion. No response.

“I would make my whole legal file available to you. The case is very strong. Isn’t the time to act at hand? An opinion sought jointly by bipartisan legislative leaders, from both branches of the Legislature, would be powerful. The issue is ripe. It is just like the veto issue; the governor will not stop until he’s made to stop. He will continue to assert powers he does not have until the Law Court says no. Put the refusal to issue (voter-approved) bonds to the Law Court.”

Orlando Delogu of Portland is emeritus professor of law at the University of Maine School of Law and a longtime public policy consultant to federal, state, and local government agencies and officials. He can be reached at orlandodelogu@maine.rr.com.