Politicians get religion on the value of constitutional checks and balances when they no longer hold power.
As has become all too common in the Trump era, the political rhetoric has been dialed up to eleven in reaction to the recent efforts of lame-duck GOP state legislatures. We have been told that these Republicans are engaging in a “power grab,” refusing to “accept the will of the voters,” “democracy-busting,” undermining “the most basic functioning of democracy,” and “nullifying the results of the 2018 elections.” Hillary Clinton has helpfully weighed in by asserting that the GOP is on a “dangerous,” “anti-democratic” path by refusing to “respect the outcome of elections.” In short, the party has launched a “coup.” (Well, maybe calling it a coup “seems strong,” concedes the Wisconsin governor-elect, who after all does expect to be inaugurated into his new office precisely in accord with all constitutional norms and practices. A strange kind of coup indeed.)
As Noah Rothman has detailed, such lame-duck legislative maneuvers are commonplace in state legislatures. Both Democratic and Republican legislative majorities have hustled to push measures through their chambers in the aftermath of electoral defeat and before having to hand over the keys to the new tenants. Both Democratic and Republican legislatures have come to the sudden realization of the need “to restore the balance of power in state government” after their party lost control of the governor’s mansion.
Politicians have a tendency to get religion on the value of constitutional checks and balances when they no longer hold power. This is not a bad thing. We should welcome the sinner back into the constitutional fold, and we should be rather skeptical of those who preach that we must never put “politics before people” by reducing the scope of government power that those preachers are about to inherit.
This is how constitutionalism works, and it is also how politics works. We should expect nothing different. And since political parties will almost never restrict their own power, by decrying these lame-duck efforts the Democrats are essentially demanding that the growth of political power must always be a one-way ratchet. We should want instead for power to ebb and flow. Not all the GOP measures being pushed forward are praiseworthy (or even constitutional, as in the case of Wisconsin’s limit on early voting), but many of the ones receiving the most criticism in recent days are not “undemocratic.” They are not even “untoward.”
In the American system of government, the legal powers of executive officers primarily come from two sources, constitutions and statutes. Elected officials have a justifiable expectation to the full panoply of constitutional powers of the office to which they have been elected. But they have no claim to any particular set of statutory powers. It is neither undemocratic nor unseemly for legislatures to take back some of the statutory authority that they had previously invested in executive officials.
It is a familiar precept of political science that when the interests of a principal and an agent are aligned, the principal will have an incentive to delegate discretionary authority to the agent. When the statehouse and the governor’s mansion are controlled by the same party for an extended period of time, a lot of power will get built up in the governor as legislative delegations of discretionary authority accumulate. No one is likely to object so long as the two branches can work in partnership.
Things get dicey, however, when that cozy relationship comes to an end. If all that accumulated power remains in the executive branch, it will be used in ways that the legislature never intended or would want. Yet to take the power back, the legislature will typically need a governor’s signature, which of course the incoming governor will not provide. It is now or never, and thus the GOP must burn the midnight oil in lame-duck session.
None of this would matter had the Democrats captured the legislatures as well as executive offices in the 2018 elections. A newly Democratic legislature would be just as inclined to leave power in the hands of Democratic officers as Republican legislatures were with Republican officers. There might still have been some lame-duck business to conduct before the Republicans lost the ability to make policy, but there would have been no incentive to grab power back for the legislature.
The Democrats would have a reasonable complaint only if there were a proper expectation that the executive during divided government should have the exact same power as the executive in unified government. But no one really thinks that. If a party captures only one branch of government, it can reasonably expect a gridlocked executive, not a superpowered executive. It can hope to move forward on policies on which the two parties can reach agreement, but not to be able to ram through policies that are embraced by only one party. “Respecting the election results” means respecting the entire result and not just the part you like.
It hardly seems likely that the national media would be talking about legislative “coups” if the respective position of the two parties had been reversed. Imagine that Congress is 2016 had been controlled by the Democrats and they found themselves shocked by Donald Trump’s improbable victory in the presidential election and appalled by his campaign messages on trade and immigration. If a Democratic Congress had spent December of 2016 reassessing the amount of discretionary authority entrusted to the president in various trade statutes and decided to do some legislative tinkering to limit the incoming president’s ability to launch a trade war, would it have been anti-democratic to do so? If such a Congress had taken the opportunity to entrench President Obama’s favored immigration enforcement policies into law and restricted the ability of President Trump to take a tougher stance on the “DREAMers,” Hillary Clinton would no doubt have heaped praise on those lawmakers. If such a Congress had concluded that it was newly nervous about leaving in place the broad authority of the 2001 and 2002 Authorizations for the Use of Military Force, would it have been democracy-busting to choose December of 2016 as a good time to adopt a new and more specific AUMF to guide future military action? When legislatures think that executive officials will use their discretionary statutory authority unwisely, we should want and expect legislatures to do their job and limit the discretion of those executive officials.
If we find the frenetic activity of a lame-duck session too unnerving, we have three choices. We could simply embrace a bulked-up executive branch that can do what it wants regardless of whether it has the support of the legislature (as we have tended to do with the federal government). We could demand that the executive branch always be enfeebled even when the legislature would like to make use of it to advance the public interest as the legislature understands it. Or we could expect that statutory delegations of power will always come with sunset provisions. The statutory powers of the executive could always return to the default settings at the start of each term, and the legislature would be forced to reconsider what adjustments it would like to make each legislative session. That option is highly inefficient, especially in statehouses where the legislature is not always in session. But if lame-duck “power grabs” were taken off the table, then statutory sunset provisions would be the most sensible alternative to achieving the same result.
We should want and expect legislatures to periodically reconsider the powers with which they have invested executive officials. Lame-duck sessions at the end of periods of unified party government are the most natural time to do that. If legislatures don’t give some serious thought to how much power they have given to the executive branch in those moments, then they are not likely to ever do so.
One party’s “power grab” is just the other party’s restoration of the “balance of powers.” It is politics as usual to give power to your allies and take it away from your opponents, and it is going down a “dangerous road” to pretend otherwise and shout that we are in a “constitutional crisis.”