When those public officials chosen under a democratic system do not want to be bound by the legal limits of their power, they sometimes ignore those limits, and defy those trying to defend the system.
That’s the lesson we’re now learning in Washington. But we saw it unfold in Augusta years earlier, during the administration — some would say reign — of Gov. Paul LePage.
LePage offended many with his crude statements, and he exasperated legislators by vetoing hundreds of bills, many for trivial reasons. One can heartily disagree, but these actions were within the powers of the governorship.
LePage’s real offense was against democracy — against all of us — when he deliberately bent and defied the law. It started early.
In 2012, I covered a story that hadn’t received much attention: LePage’s mystifying decision to halt payments to the Communities for Maine’s Future program, a state bond fund enacted by two-thirds of the Legislature in 2009 and ratified by the voters in 2010 — the moment when LePage was elected governor.
This anti-recession program injected much-needed capital into small downtowns; some towns had gotten grants and many were about to. LePage’s own economic development commissioner, who’d approved disbursements, sounded almost as peeved as the town officials scrambling to figure out why money the state guaranteed was suddenly gone.
LePage’s spokeswoman claimed that, though funding was in the state budget, the state treasurer’s cash pool was lagging, so no new bonds could be issued until at least 2014.
There was nothing to this claim. The treasurer, not the governor, is responsible for the cash pool, and he or she has sole constitutional authority to issue bonds. The governor’s only involvement is to sign the warrant — essentially, check the box.
The then-state treasurer, Bruce Poliquin — future and now ex-GOP congressman — saw nothing amiss with LePage holding up bonds, and no one else challenged him.
The significance of these actions became apparent after the 2012 elections, when Republicans lost their legislative majority and Democrats resumed control. LePage had the tool needed to govern without majority support — what he termed “leverage.”
To enact his plan to pay off Maine’s hospitals Medicaid claims, he held hostage all bond issues — including more authorized by voters in 2012 — until lawmakers gave in. To add injury to insult, he then repeatedly vetoed 100% federal Medicaid funding that would have helped Maine hospitals tremendously.
The new state treasurer, Neria Douglass, a Democrat, also declined to fulfill her constitutional duty, and her successor, Terry Hayes, a Democrat-turned-independent, got the job with Republican support and an explicit promise she wouldn’t challenge LePage’s bond takeover. No one ever filed a lawsuit, and the only legislative challenge came from a Republican senator, Roger Katz, whose bill was, predictably, vetoed by LePage.
Having bent both the law and Constitution to his ends, LePage felt free to govern without legislative consent, and did so. Presumably, a future governor could assume the same unconstitutional authority to override lawful decisions by the Legislature and voters.
Donald Trump has also offended and outraged many since his election with a minority of the popular vote in 2016. It is his lawlessness, though, not his foreign policy — where Congress has unwisely delegated too much authority — that strikes at the core of our democracy.
Days after Trump took office, he ordered a travel ban fulfilling a campaign promise to keep out “radical Islamic terrorists” by shutting down visas from Muslim-majority countries. Unlike Maine’s experience, there were many lawsuits, and, after an Appeals Court setback, Trump signed two slightly modified bans. Though the bans’ discriminatory intent was patent, the Supreme Court approved, by the usual 5-4 split.
Trump surmised that, for this court, executive authority is nearly unlimited, and his most recent usurpation is breathtaking. After Congress turned down the border wall he’d said Mexico would pay for, he decided to do it himself.
By shifting money authorized by Congress from defense construction projects to build a barrier for which he was denied funding, Trump is removing from Congress its exclusive appropriations authority under the Constitution.
This time, the Supreme Court has yet to hear the case — lower courts have decided unanimously, sometimes passionately, against the president — but it did, 5-4, stay these rulings, which it’s supposed to do only when the Executive Branch is likely to prevail.
At this juncture, the president can spend any amount of money as he pleases, regardless of Congress. It’s the scariest moment yet for whether we still have John Adams’s “government of laws, not men.”
Maine never mustered the will to overcome a governor’s lawlessness. The question of whether the nation can do so with a president is still unanswered.
Douglas Rooks, a Maine editor, opinion writer and author for 35 years, has published books about George Mitchell, and the Maine Democratic Party. He welcomes comment at drooks@tds.net
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