Gov. Paul LePage and GOP presidential hopeful Donald Trump have something in common. Each wants to run government more or less at his will. Neither gives great weight to the role of the legislative branch.
In fact, both readily disparage legislative opponents and their constituents, one or the other of them calling their critics “weak” or “corrupt.” Writing off large parts of the population, they raise the question of their ability to lead a state or national government on behalf of all the people.
Both come from executive positions in the private sector where their word might have been law. LePage is learning and Trump must yet learn that in government the constitutional balance of powers matters.
Discussing the recent decision of the Maine Supreme Judicial Court, I noted that it had ruled the state constitution gave the Legislature virtually “absolute” power on behalf of the people, while the powers of the executive and judicial branches are more limited. The situation at the federal level is similar, though not identical.
The growing power of the executive risks giving both office holders and voters the wrong impression. After a general election victory and aware of the extensive powers of office, an executive can come to appear to be the people’s primary representative.
One reader asked, “why have a governor if the Legislature is the primary representative of the people?” Or a president, for that matter.
The revelation about the power of the legislative branch must have been a surprise, when we have become accustomed to executives claiming to speak for the state or country.
The executive is primary in representing the state or country in relationships with others. And as a single leader, the chief executive may inspire and encourage citizens.
From there, it is easy to gain a sense that the executive is the dominant element of government, enjoying a general election mandate that ought to be observed by the legislative branch. That’s LePage’s message, and there’s little doubt that Trump would see his office in the same way.
Still, there’s a good reason why the legislative branch comes before the executive branch in both the U.S. and state constitutions. The legislative branch is supposed to represent the collective will of the people, the real sovereign. It makes laws using authority delegated to it by a constitution approved by the people.
Precisely because its members are elected by district and not statewide or nationally, the legislative branch can reflect complex public sentiment more accurately than can the executive.
The executive’s lawmaking powers are supposed to be limited. Vetoes of bills passed by a legislative body can be overridden, leaving the last word to the legislature. Even appointments of top people in the executive branch must be confirmed legislatively.
A more complex world has imposed a transformation in the traditional balance between the two branches. It has proven to be impossible for the legislative branch to enact laws that are sufficiently detailed to deal with the many specific situations arising when the executive tries to carry out the laws.
Inevitably, the executive must be left to adopt rules and procedures to apply the law. Without unlimited funds, it sets priorities about which laws should be applied most actively.
In many cases, rules and executive orders have come to look a lot like laws. The process of filling in the open questions in legislation leads to increased power for a president or governor. If the executive branch goes too far, the legislative branch has to find a way to rein it in.
The executive is expected to have an agenda, proposed by the chief office holder and supported by executive branch personnel. The problem of primacy arises when the top executive believes this agenda must be passed or that he or she is more powerful than the legislative branch.
President Teddy Roosevelt said the White House was a “bully pulpit,” meaning that the presidency gave him a strong position to advocate his agenda. But, in another sense of the word, he did not “bully” Congress so much as find ways to convince its members to support him.
Courts increasingly find themselves asked to deal with the limits of executive power. While the political system may allow for judicial determination whether executive actions are constitutional, it would be better for government to function based on positive relationships between executive and legislative and between government and voters.
Scorning and ignoring opponents, as LePage and Trump do, may provide a momentary sense of satisfaction, but it almost certainly undermines chances for constructive government.