by James C. Sherlock
The creation of laws in America is subject to separation of powers, as is their review for constitutionality by the courts.
The question in the current crisis is about executive orders. One-person rule was the primary fear of the founders of the republic and is exquisitely guarded against by separation of powers structures and specified individual rights in the Constitutions of the United States and of each sovereign state. Where a state doesn’t guarantee individual rights, the U.S. Constitution is supreme.
Virginia’s law granting unlimited executive authority for an unlimited period in a crisis that the Governor himself declares is a prima facie violation of both the Virginia and U.S. Constitutions.
There is a readily available remedy — participation by the General Assembly in decisions for which the Governor is instead empaneling citizen committees and then ignoring them (see in Virginia the 24-person panel on openings).
There are three available paths to the remedy:
1. The courts can find the law unconstitutionally vague and sweeping and declare it unconstitutional;
2. State legislatures can fix the problem by changing the law and overriding any gubernatorial veto, which needs to be done regardless of court actions;
3. Both
A Wisconsin Supreme Court decision yesterday chose path number one. The court Wednesday curbed the power of Gov. Tony Evers’ administration to act unilaterally during public health emergencies. To put any new limits in place, the governor and the legislature will be required to work together to deal with the peaks and valleys of the outbreak.
I am not sure what a principled objection to that ruling at this time, months into the crisis, would be. Whatever unilateral executive actions that some may have justified initially are no longer required. Legislative participation is available, and because it is available, it must be used.
The fact that the Wisconsin Governor is a Democrat and the leaders of both houses of the legislature are Republicans is actually a good thing. It will force them to work together or face the consequences of not doing so.
There is no appeal, because the state Supreme Court ruled on the basis of the state constitution. So we’ll see what happens. The Democrats and Republicans can hang together or hang separately.
