Governors Who Properly Use or Misuse Executive Power

I have written in this column about how in these times when our traditional liberties and even such natural rights as religious freedom are under siege, we need to look to executive power—exercised in the right way—to help us. In recent months we have seen striking examples of how noted state governors in varying ways have failed to rise to the occasion and one case where a governor used his authority in an exemplary fashion.

Governor Tom Corbett of Pennsylvania commendably came into the breach to defend true marriage in the state when its leftist attorney general refused to carry out her responsibility to do so. He defended the state’s law which forbade the issuing of marriage licenses to same-sex couples. When a federal district judge invalidated the law, however, Corbett—apparently thinking he could attract some Democratic crossover votes in a difficult reelection race—declined to appeal. It hasn’t helped him politically, as he has trailed his Democratic opponent throughout the race; if anything, it will probably hurt him by depressing voter turnout among his core supporters. It was a case study of: 1) how anti-leftist politicians “throw in the towel” on their adversaries’ favorite issues and allow the other side to shape political developments; 2) how they surrender even basic principles for anticipated short-term gain, but often fail to achieve even that; and 3) how seemingly right-minded executives so often abdicate their authority at the very time when those trying to defend American and Western civilization desperately need their help.

Governor Chris Christie of New Jersey allowed a criminal case to proceed against a Pennsylvania woman, with a concealed carry permit in that state, when she was charged with not having her handgun adequately secured in her car during a traffic stop in his state. Like numerous other out-of-staters who brought personal guns into the state, she did not know about its restrictive laws (it’s a pro-gun control state) and was entirely honest to the officer when stopped about carrying her personal handgun. She faced a 3-10 year prison sentence because of an uncompromising county prosecutor who seemed oblivious to the traditional legal requirement that to have a crime requires mens rea, criminal intent. He wouldn’t even agree to her entering a pretrial diversion program that would expunge her alleged offense (curiously, he allowed this for a celebrity pro football player on a charge where it’s rarely permitted). Christie said he wanted to “let the legal process proceed”—irrespective of the costs and strain involved for an innocent person.

Christie, a former prosecutor himself, seems oblivious to how the rule of law is undermined by discarding traditional legal rules, holding people to laws they could not possibly know about (in the natural-law tradition promulgation of a civil law is required for it to be valid), and allowing prosecutors inordinate discretion (it’s now widely recognized that prosecutors even routinely manipulate and control grand juries, which are supposed to protect the innocent). He could have publicly denounced the prosecutor and pledged, if convicted, to issue an immediate pardon. He possibly had the prerogative to grant a pretrial pardon. He could even have threatened to remove him from office, since county prosecutors in New Jersey are gubernatorial appointees. It would be scandalous to pressure a prosecutor for going after genuine criminals, but not innocent people. Christie has been talked about as a Republican presidential candidate. It looks like he would be in the mold of typical Republican presidents of claiming they are against what the left foisted on the country in Democratic administrations, but doing nothing to reverse it. (At least, irrespective of Christie, there was a happy outcome: pressure from pro-gun groups and the public finally forced the prosecutor who seemed to be intent on making an example of the woman to back down and she was allowed to enter the pretrial diversion program.)

The least we should expect of strong executives is that they properly control their own branch of government. Prosecutors are part of the executive bureaucracy, which has now become almost a government unto itself and an engine to bring about undesirable cultural change and thwart the rule of law. We can see what happens when prosecutors wax inordinately in power by looking at Italy, where they destroyed the Christian Democratic party and have done things like criminally prosecuting scientists for not accurately predicting a major earthquake.

Failing to deal with a runaway prosecutor was also seen, more dramatically, with Texas governor Rick Perry. Essentially, Perry was indicted for using his constitutional veto power to stop funding the state’s Public Integrity Unit—after the prosecutor who heads it refused to resign following a drunken driving arrest and an attempt to use her position to get the charges dropped (that’s hardly behavior that inspires pubic integrity). Despite its jurisdiction, the unit is not actually a state department but part of arch-leftist Travis County (Austin). It has been known for going after high-profile Republican politicians—and then having the convictions overturned on appeal. Among other things, it has been accused of “cherry-picking” grand juries to get indictments it wants. The indictment was generated by a substitute prosecutor and came after a complaint by a “good-government” outfit, which some say is actually a leftist group in disguise. That group is heavily funded by George Soros’ Open Society Foundations and Democratic-leaning trial lawyers. (Sounds like the flood of politically inspired ethics complaints against Sarah Palin when she was Alaska governor, doesn’t it?) Perry, like Christie, thought he should “let the legal process proceed”—even though the whole thing has little to do with law and much to do with attack-dog politics of the lowest kind.

If anything, like the New Jersey case but in a different way, it’s an undermining of our cherished principle of the rule of law. It also illustrates how forty years of much-hyped political ethics laws and government oversight efforts since Watergate have done little to straighten out politics. They have become clubs to use against political opponents. Instead of appearing for booking and acquiescing in a political prosecution—which will cost Texas taxpayers millions—perhaps Perry should have dared the prosecutor to come and try to apprehend him in the governor’s mansion or the state capitol building, past a ring of Texas state police. Or perhaps Perry should have turned the tables and threatened the prosecutor with arrest for pursuing a false prosecution, which is a crime in Texas. To boot, as one commentator said, he could have filed a federal civil rights suit against the prosecutor acting in his personal capacity. If Perry could have gotten himself past the fear of political ramifications and done something like that, my suspicion is that the prosecutor would have backed off targeting him for exercising his rightful constitutional authority. Perry would have struck a blow for the rule of law.

All these recent examples follow the paradigm of Mitt Romney when he was governor of Massachusetts. His refusal to resist the Massachusetts Supreme Judicial Court’s decision inventing a state constitutional right to same-sex “marriage” gave enormous momentum to the national movement.

Contrast these examples of the failure to exert executive power with the recent case of Maine Republican governor Paul LePage. He ordered state child welfare bureaucrats—who are under his authority—to agree to a mother’s wish to cancel a DNR order for her badly injured, hospitalized baby despite the medical authorities’ wish to keep it in place. He did this despite the bureaucrats’ getting a court order to back them up. He even threatened to defy the Maine Supreme Judicial Court if it upheld the lower court (as it turned out, they said it was moot after the state bureaucrats dropped their demand). While, to be sure, the parents got themselves into the mess in the first place—the couple is unwed and the father is facing criminal charges for shaking the baby and causing her injuries—and one might have other complaints about LePage, he made a commendable stand for the cause of innocent human life and showed how executive power can used if there’s the will.

These cases mostly involve political executives using their legitimate prerogatives. Unfortunately, politics and a lack of will and courage too often stand in the way. These are not normal times when governors or any right-thinking politicians can be satisfied staying in their usual comfort zones. These cases show that, even apart from the need of presidential power to aggressively protect our ebbing liberties and restore our constitutional tradition and stop the governmental assault on sound morality and culture, there is much that governors can do at the state level.

Stephen M. Krason

By

Stephen M. Krason's "Neither Left nor Right, but Catholic" column appears monthly (sometimes bi-monthly) in Crisis Magazine. He is Professor of Political Science and Legal Studies and associate director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also co-founder and president of the Society of Catholic Social Scientists. He is the author, most recently, of The Transformation of the American Democratic Republic (Transaction Publishers, 2012), and editor of three volumes: Child Abuse, Family Rights, and the Child Protective System (Scarecrow Press, 2013) and The Crisis of Religious Liberty (Rowman and Littlefield, 2014); and most recently, Challenging the Secular Culture: A Call to Christians (Franciscan University Press). His next book is Catholicism and American Political Ideologies (forthcoming this fall from Hamilton Books). He is also the author of a new novel, American Cincinnatus.

  • CR89

    Let’s not forget Jeb Bush’s egregious inaction when he was governor of Florida allowing the state-mandated starvation/dehydration murder of Terri Schiavo in 2005. Yet we hear more and more every day that he is being seriously considered as the (R) candidate for president in 2016. Have mercy on us, Lord. Have mercy on us.

    • Cap America

      . . . this we should admit was a more nuanced situation than described here.

  • AcceptingReality

    What’s a “pretrial diversion program”? Sensitivity training for gun owners? Is it supposed to teach them that guns are bad? The problem with secularism, er, liberalism, is that it has separated itself from common sense. And yes I mean that Christie is a liberal.

  • St JD George

    I guess state executives are as good as any to pick on, but it’s pretty clear most of our elected conservative leaders are cowards. That could not be any more on full display than in the elections at hand. They seem content to ride on the wave of resentment against this administration, but can anybody say what they stand for? I totally agree with you on the results of capitulation – it may tone down the rhetoric of hate but it hardly ever leads to changing minds at the ballot. I do think sometimes though that we forget these people are mostly decent human beings (don’t laugh) and when they take moral positions and are met with a wall of hate and threats to their life and property most retreat, it’s human nature. It’s the classic play ground bully tactic, one that Alinsky mastered and has mentored well to the current class of hooligans. Those that enter politics should not have thin skin.

    • Glenn M. Ricketts

      They stand for winning and holding elective office with as little controversy as possible. The most we can hope for is that such “leaders” will not propose further innovations in liberal social policies – but they certainly won’t resist them, either.

      • St JD George

        Amen. I really do believe that our “system” is off the rails and nobody really knows how to get it back on the tracks moving again. Somehow our level of understanding in civics has evolved to government is there to solve every problem and redistribute wealth through pandering. It may not be perfect, but we have a pretty damn good Constitution and had very smart founding fathers who could foresee the tyranny of a bully federal government such as we have to day. We even have an occupier-in-chief who openly mocks it as constraining him from doing all the wonderful things he wants to do for us, who could imagine. I think it’s long overdue for the states to call for a constitutional convention and get back to business. I’m not naive though, these same forces were at work even over 200 years ago and will continue indefinitely largely unabated because it is in the spirit of human nature for some to want to control others through the coercive force of government, and for many who want to be subjugated themselves and are afraid of freedom.

        • Glenn M. Ricketts

          Unfortunately we have counterparts in the leadership of the Church as well. They run quiet orderly diocesan agencies, collect money, and often feel that they must “listen” to strident dissenting voices, even if they can’t completely accommodate them. They’re usually not around, though, when it becomes necessary to defend or even explain the core beliefs of the Faith. Like their secular twins, they live in mortal fear of the secular media.

          • St JD George

            I am not a big fan of leading by polls so what I am about to say goes against my nature. However, I find it particularly odd that when nearly 2/3’s of the country is screaming that they do not like how and where you are leading it and you continue to do as you wish, what does that say? What ever happened to “of the people, by the people and for the people”, is that too much to ask for from the friends of Abe? As CK diagnosed, only a pathological narcissist could act that way.
            Curiously, that was about the same percentage roughly as the number of bishops pushing back in the latest synod against watering down the church’s teaching on marriage and homosexual behavior.

            • Glenn M. Ricketts

              Yes, I was pleasantly surprised by the events in Rome, although in my own neck of the woods, that wouldn’t have happened. Washington, however, is in the hands of Very Special People: as they see it, they are very smart, cool and destined to govern those less Enlightened and in need of their benevolent counsel. The Beautiful People, as I believe it was Tom Wolfe dubbed them

            • Ruth Rocker

              The problem lies with the fact that the “people” no longer engage in the process. They are, in large part, uninformed about the issues, disinterested in the candidates’ morals/ethics and disconnected from the process until/unless it will affect them personally. We have an apathetic public who are content to be herded by the popular media and the garbage they spew just like sheep are herded.

              • St JD George

                Come now Ruth, say it isn’t so. In some fairness, it’s always been that way which is partly why or founding fathers wanted a republic and not a democracy. Ironic though isn’t it that back in the day is was hard to get the information and stay informed, now it’s available in an instant and for quite a few it means they can stay abreast of the happenings of their favorite celebrity. For the current occupier at least I know he prefers it that way, with willing accomplices posing as journalists.

  • Tim

    I’m amazed the ‘catholic’ governor of New York got a pass.

    • St JD George

      The complete list of accomplices would be to long to publish here.

    • Augustus

      I think it’s a given that Democrat governors like Cuomo are expected to abuse their power by advancing evil. We have higher, if only slightly, expectations for Republicans in part because their constituents expect more and in part because of the principles they articulate (rule of law, separation of powers, etc.). Nor was this a Catholic list since Perry is Protestant. For Cuomo to get a pass, the author would have had to say so explicitly, or we would have to assume that there are only less than a handful of governors who have not used their executive power properly. If that was really the case, the issue would hardly be worth mentioning.

      • DE-173

        Christie’s failings are far greater than listed here, including a surrender on marriage.

        His delusions of grandeur aside, he is little more than a clamorous oral cavity, corpulent, sin against chastity.

        Hopefully, he’ll get a gig on MTV rather than at 1600 Pensylvania Avenue.
        The name “Jersey Bore” is waiting, but if he prefers “Jersey Boar”, in reference to his porcine qualities.

        • John200

          I’ll be the Obvious Guy who says, “Make it gluttony as well.”

          If MSNBC is still on the air when Christie is voted into retirement, he might fit in. Imagine them honking their horns about how they converted a leading conservative to their side.

          Malheureusement, no Americans will see it.

        • Glenn M. Ricketts

          As a resident of the state he governs, I sadly concur. He’s a big flop, literally and figuratively.

          • DE-173

            My condolences. Of course we had Rendell and are probably going to get his junior deputy.

            • Glenn M. Ricketts

              Yes, my Dad resides in Pa. and keeps me apprised of the political fortunes of the Quaker state. Not much to choose from on either side of the Delaware River, is there?

              • DE-173

                Corbett shut down that nightmare in Philadelphia; something that didn’t seem to be of interest to Rendell, Shweiker or RIdge.

                • Glenn M. Ricketts

                  Yes, that was impressive. I wonder, though, if things had also reached the point of no return? Still not bad when measured against his predecessors. Ridge especially used to drive me up the wall since, like Christie, he seemed to try to make hay at election time over the fact that he was a “Catholic.”

                  • DE-173

                    Ridge was always hot air. In the middle 90’s he got into a dispute with the Pennnsylvania State Police and they went on a “ticket strike” and he was rolled, pronto.

                    • Glenn M. Ricketts

                      Frein shot a couple of their own, so I guess they pulled out all the stops and then some. But yes, why not do that, especially since it’s far more dangerous than the Poconos.

                    • DE-173

                      “Frein shot a couple of their own, so I guess they pulled out all the stops and then some. ”

                      I think you are getting the idea. “They” are distinct from “we”.

                      All animals are equal, but some animals are more equal than others.

  • Michael Paterson-Seymour

    Tallyrand, who knew something of politics, observed, “Governing has never been anything other than postponing by a thousand subterfuges the moment when the mob will hang you from the lamp-post, and every act of government is nothing but a way of not losing control of the people.”

    • Glenn M. Ricketts

      Even more apt for me is the observation of Napoleon, on the character of the leaders of the French Revolution: “Vanity made the Revolution. Liberty was only a pretext.”

    • DE-173

      Weber, whose knowledge on most things I can’t attest, did nail the nature of government with this description.

      “any organization that succeeds in holding the exclusive right to use, threaten, or authorize physical force against residents of its territory.”

      I would modify that to say include to the ability subsist off the productive efforts of others, through conscription supported by threats.

  • Vinny

    “It looks like he would be in the mold of typical Republican presidents of claiming they are against what the left foisted on the country in Democratic administrations, but doing nothing to reverse it.”
    That’s why I write-in my vote. I’ve been hoodwinked for 39 years. Not anymore.

    • St JD George

      I responded recently to say that I used to use the phrase the greater of two imperfect choices instead of the lesser of two evils because I detested the saying. However, as my distaste for what counts as political discourse grows it’s harder to defend. I will still likely cast a vote for the one who offends me the least, however, as much as it would be against my nature declining to participate is also attractive. I know many would disagree, but to me a long shot 3rd party candidate is effectively the same as not voting except with the aggravation of driving to the poll, with a smidgen of protest satisfaction. The only thing that pulls me back is the reminder of the millions who stayed home because of the imperfect candidate which brought us the misery of the current occupier.

      • Vinny

        I just want them to know that I was there voting. I’m in Massachusetts, and sadly, most states aren’t too much different in their politics. It’s a very rare Republican who isn’t solidly pro-abortion and pro-homosexual marriage. How did the Republicans get that way? By us dupes continuously voting for them, hoping for the best.

        • St JD George

          I feel for you, but you are needed there to be a beacon. Thankfully the scourge of Camelot is mostly gone now with Teddy’s passing. I find it funny how the “Lion of the Senate” is hardly ever mentioned, even within a year, and most of the younger generations have no clue who he was. I don’t know if that’s good or bad. It’s good to be reminded of what bad character looks like to show as an example of how not to act. Sadly much in our church embraced solely because they thought he had a (C) by his name.

          • DE-173

            I always thought they meant “Lyin’ in the Senate”.

            • St JD George

              That’s good …

        • CR89

          “I just want them to know that I was there voting. I’m in Massachusetts …”
          May God help us, so am I. Vinny, whatever you do on Nov. 4 DO NOT vote for Charlie Baker for governor. Not voting for Coakley is a no-brainer but this guy is equally vile.
          http://www.massresistance.org/docs/gen2/14c/mass-gop-statewide-2014/charlie-baker/index.html

          • Vinny

            I know, I’m writing-in Mark Fisher. I worked hard for Mark Alliegro, Republican (Upper Cape Tea Party) for 9th district Congress but Chapman won. Mark was the only one out of four Republicans running who is pro-life and pro-traditional marriage. I’ll be writing him in too.

  • St JD George

    Want to hear some happy news in this strange world of ours. Cuba just allowed for the construction of a Catholic church for the first time in 55 years. Not quite ready to beat the drums, but it is a heartening step … I wonder if there will be a statement from the WH acknowledging and congratulating them … not holding my breath.
    https://news.yahoo.com/cuba-builds-first-church-55-years-191657884.html

    • DE-173

      When Churches are constructed without state permission, that will be happy news.
      Otherwise, it’s just a token that a Michael Moore will use in a prop in his next film.

      • St JD George

        I guess you have to crawl before you can walk before you can run. I don’t know what all to make of it, but I’ll take as a small positive sign. The next step of course will be to see who they appoint as the state sanctioned Priest, er I mean, approved. It’ll no doubt be like in China.

        • DE-173

          My fourth grade teacher was a Cuban expatriate and the stories she told decades ago are still resonant in my memory.
          I don’t care how old and feeble the Castros are; they should be tried for crimes against humanity.

          • St JD George

            I know, I have had friends you escaped from behind the iron curtain who love America and really get emotional at the elites and the ignorants who express affinity for communism. Also a good friend whose family escaped Chavez in Venezuala before having what they owned stolen by the state to redistribute. To many native born here have no idea.

  • Dan

    Add to the list the State of California’s unilateral decision not to enforce Proposition 8 (which defined marriage as being between a man and a woman), even though it is part of the state constitution. It was struck down but only by a single federal district judge whose jurisdiction is limited to the northern district of California. Moreover, in that case the State would not even defend its own constitution and it was found that there was no one involved who even had authority to appeal. Thus a duly enacted constitutional provision was jettisoned without meaningful judicial review or any other justification — in other words, in a completely lawless manner.

    • Glenn M. Ricketts

      Don’t forget the Obama administration’s decision not to enforce the DOMA as well. But let any baker decline to provide a cake for a gay wedding, well, then they’ll probably send in a SWAT team.

  • St JD George

    They wouldn’t abuse their executive power for political ends would they?
    http://www.truthrevolt.org/news/harvard-study-yes-illegals-help-get-democrats-elected

  • Cap America

    I’m stunned by the usurption of the legislative power by the federal executive branch.

    I’m neither R or D. I’m moderate. I don’t like ANY administration that picks and chooses which laws it wishes to enforce. They are laws, duly made and constitutional, and it’s a grave dereliction of duty to set them aside.

    • DE-173

      It’s a symbiosis of usurpation and abdication. Pick any law you like and you will find huge holes in the details, filled with the phrase “The Secretary shall prescribe regulations”. There was a reason Nancy Pelosi said you have to pass the bill to find out what’s in it.

      To bad Cardinal Dolan was naive in not understanding that the trick is to pass a law half-baked and give unaccountable bureaucrats free reign.

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