Policy Wonk: Only Gov. LePage is above the law

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As odd as it may seem, the headline on this piece reflects Maine’s reality.

In 2012, Gov. Paul LePage refused to issue $40 million in voter-approved bonds, notwithstanding a constitutional duty imposed on him to “take care that the laws be faithfully executed.”

Other constitutional provisions characterize voter approved bonds as “an enactment” – in other words, a “law” indistinguishable from a statutory provision.

LePage persisted in this failure to execute the law for more than two years. Roads were not built, bridges were not repaired, other infrastructure projects were put on hold at a time when interest rates were low, bid prices were favorable, and unemployment was high – contractors and construction workers were looking for work.

In short, the governor’s ideological views, his unwillingness to execute the law, trumped economic common sense.

From mid-2014 to the present, the governor has refused to appoint members to the Maine Board of Corrections. The BOC, pursuant to legislation enacted in 2007, is charged with fashioning a statewide system of county jails.

This system would be more efficient and less costly than previously existing jail programs and facilities that varied widely from county to county.

LePage’s refusal to make these appointments is cynically motivated. He knew expired terms and resignations had reduced the five-member board to two – a number insufficient to constitute a quorum – which prevented the BOC from taking any actions to carry out the legislative intent embodied in the 2007 legislation.

The governor does not want a statewide county jail system and the costs associated with this more efficient system. He wants to shrink state government and return to the fragmented jail system that prompted the 2007 legislation. The inefficiency and costs of county-run jails will be borne by local governments and property taxpayers.

In short, LePage, by refusing to make appointments to the BOC, has ignored his duty to execute the law; his ideological views have again trumped economic common sense. And more importantly, he has nullified legislation aimed at fashioning a statewide jail system.

And now in 2015, the governor is again refusing to issue bonds, specifically $11.4 million in voter-approved bonds that would enable the Land For Maine’s Future board to finalize acquisition of a variety of unique property interests on behalf of the people of Maine.

The governor knows that refusing to issue LMF bonds will force dozens of transactions to be put on hold. Some – perhaps many – of these transactions will be lost, as private property owners walk away from deals the state is no longer able, or willing, to conclude.

These realities maximize the pressure he can put on the Legislature.

Pressure to do what? In a nutshell, he wants the Legislature to acquiesce to increasing state revenues by permitting an aggressive timber-harvesting program on public lands.

Many woodland owners and legislators in both parties are opposed to this harvesting program. It puts the long-term health of Maine forests at risk for short-term revenue gains.

The merits of this debate do not concern the governor. Nor is he concerned with the facts noted above, that voter-approved bonds are “enactments” (laws); that he has a constitutional duty to issue these bonds.

Bottom line: LePage wants what he wants. If he can get it by violating constitutional and statutory duties, and/or by nullifying legislation creating a statewide jail system or preserving Land for Maine’s Future, so be it.

Apologists for the governor repeatedly assert that he has five years within which to issue voter-approved bonds. But this writer is unable to find any statutory or constitutional support for this proposition.

On the contrary, the Constitution states: “The veto power of the Governor shall not extend to any measure approved by vote of the people.” In short, the governor has no power to refuse to issue voter-approved bonds.

Nor may he refuse to make legislatively required BOC appointments. His conduct in both settings is a back-door veto: an impermissible means of furthering ideological objectives, and/or repudiating legislation he does not like, or gaining legislative approval of programs that faced defeat.

LePage’s pattern of conduct suggests he will not desist. He believes he is above the law,that his actions cannot or will not be challenged.

Sadly, he may be right.

To date, no one with legal standing, not the attorney general, the state treasurer, the Democratic legislative leadership, or any individual party adversely affected by his refusals to execute the law has been willing challenge LePage’s conduct in court. As a result,the bully prevails.

It was not always so in Maine. On two prior occasions gubernatorial overreach was successfully challenged. The Supreme Judicial Court stopped short of ordering the governors to do what the statutes required, but they clearly held that they had a “duty” to act in accordance with the law, and governors ultimately complied.

A similar willingness to challenge a governor who thinks he is above the law must be found today.

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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 orlando.delogu@maine.edu.