Speaker Cutler’s Attack on the Principles of the Founding Fathers

Marc Stier |

The State Government Committee of the Pennsylvania House of Representatives plans to take up two proposed constitutional amendments proposed by Speaker Cutler that are a direct and serious attack on the Pennsylvania Constitution and the entire framework of government designed by the founders of our country. Indeed, it is hard to think of any constitutional proposal that so directly and radically breaks with the wisdom of those who created the Constitution of the United States and whose work inspired the constitutions of our fifty states. While the constitution of every state is somewhat unique, every one of them enshrines the principle of the separation of power and the checks and balances in the institutions of government they create. Speaker Cutler’s amendments directly attack those principles.

The separation of powers doctrine requires that each branch of government—in PA the governor, the General Assembly, and the courts—be delegated one of the three main powers of government: executive, legislative, and judicial. The checks and balances doctrine gives each branch of government a share in the power delegated to the other two branches so that it can provide a check on decisions by the other branches and intrusions on the separation of powers itself.

Central to the executive power is the responsibility to issue or to implement executive orders and regulations as allowed by the laws passed by the General Assembly and signed by the governor. Indeed the very term “executive power” tells us that the governor is granted the authority to execute abd implement the laws of the Commonwealth by issuing orders and regulations.

In keeping with checks and balances, the regulatory review process in Pennsylvania has, however,  given  the General Assembly—as well as the Independent Regulatory Review Commission (IRRC) and the attorney general—the ability to provide some check on actions taken by the governor or his subordinates. After the mandatory procedures for public comment are followed and the IRRC gives a final review of the regulation, it may be disapproved by the committees in the House and Senate and then by the full House and Senate through a concurrent resolution. If both the House and Senate pass the concurrent resolution, the governor can then veto it. And then under the Pennsylvania Constitution, the House and Senate can override the governor’s veto by a two-thirds vote of each legislative body.

House Bill 2069 proposes a constitutional amendment that would let the General Assembly override any regulation proposed by the governor or the administration with just a bare majority of votes in the House and Senate.  It would exempt the legislature’s right to disapprove of a regulation through a concurrent resolution from the requirement that the Governor approve of the resolution.)

House Bill 2070 proposes a constitutional amendment that would limit the effect of an executive order or proclamation by the governor or an executive agency to 21 days unless extended “in whole or parr” by concurrent resolution of the General Assembly.

These are proposals are  direct and blatant attack on the principle that the governor has the primary responsibility for carrying out the executive power, and thus on one of the fundamental principles that has animated American constitutions since 1789. Regulations, executive orders and proclamations issued by the governor or executive agencies are not the exercise of  some monarchical prerogative power outside the law. Rather they are actions of the  branch of government given power to act by the laws passed by the General Assembly. One it gives the  power to issue executive orders, proclamations, and regulations under the law, the General Assembly can have only minimal authority to review what the governor has done with that lawful power without overstepping its bounds. Some check on the actions take by the governor is justifiable, provided that this review is limited, such as by requiring a 2/3rds majority in each house of the General Assembly. But if the General Assembly  arrogates to to itself the right to review and reject every exercise of executive power by simple majority vote it has overstepped its bounds and become the holder of both the legislative and executive power. And that is a clear violation of the fundamental principles of the separation of powers.

There is a very good reason for giving the governor the largest share of the executive power. To be fair, regulations must apply to everyone. To be effective, regulations must be made consistent with one another. To be efficient they most look to the long-term benefit of the commonwealth. To be sensible they must be based on technical expertise. The governor—as the official elected by every Pennsylvanian and tasked with both carrying out the laws passed by the General Assembly and proposing new laws—is the one who is most likely to focus on the good of every region of the state, who is responsible ultimately responsible for ensuring that laws are implemented consistently across all areas of public policy, who is focused on the long-term good of the state as a whole and who can rely on the technical expertise of his subordinates in formulating regulations. Legislators, by design, focus first on their district and then on the good of the state as a whole.

It is appropriate that an overwhelming majority of both the House and Senate have the ability to override regulations, executive orders, or proclamation. That is only likely to happen when the governor or his appointees have made an egregious error or have badly misread the sentiments of the state.

To give the General Assembly—a body, like all legislatures, that is often fractured by divisions, motivated by short-term political passion, and often inconstant and short-sighted in its actions—the ability to reject regulations by majority vote is another thing entirely. It creates the temptation for a legislative body to act in ways that undermine the long-term good of our state.

In attacking the separation of powers, Speaker Cutler has rejected a central insight of the country’s founders—that legislators, as well as executives, can act badly. His proposal in fact re-enacts the history that led to the adoption of the separation of powers by the Founding Fathers, which was designed to  ensure that the legislative excesses of the Pennsylvania General Assembly in the 1790s would not be found in a new national government. More generally, they recognized that legislative bodies, like the General Assembly, which controls the purse strings of government and writes the laws that the Governor can only execute and the Supreme Court interpret, is always likely to be the strongest branch of government and the one most tempted to overstep its bounds. That is why the Founders adopted a form of government with both the separation of powers and the checks and balances and, then created a strong presidency and Supreme Court to check the Congress. The Constitution of Pennsylvania was later revised to adopt the same model.

Speaker Cutler’s justification for these amendments is a tendentious and uninformed reading of that history. He rails against so-called “abuses” of executive power in Pennsylvania as if he were complaining about the actions of an unelected monarch. But whoever is governor is elected by all the people of the state. And because a significantly greater number of  Pennsylvanians vote in gubernatorial elections than legislative ones, the governor has a far more legitimate claim to represent the people of Pennsylvania as a whole than members of the General Assembly who are elected in small districts, in elections where turnout is low, and in which local issues and the power of incumbency tend to be more important than a thorough consideration of statewide issues.

Moreover, the majority party in the current General Assembly has absolutely no moral authority to claim that it better represents the people of the state than the governor because for two decades it has been elected under highly gerrymandered districts that it’s drawn to keep itself in power—even against the will of the people.

That the legislative majority in the current General Assembly does not, in fact, represent the will of the people is supported by opinion polls that have consistently shown that a majority of Pennsylvanians support actions taken by Governor Wolf–such as temporary business closures and mask mandates–made to protect state residents and visitors from COVID-19. When Speaker Cutler says that the General Assembly is standing up a governor whose actions are rejected by the people of Pennsylvania as as whole, he is simply mistaken. They may be rejected by the extremists who vote in Republican primaries in the gerrymandered legislative districts of Pennsylvania. But that minority does not speak for the state as a whole.

Constitutional amendments should not be proposed without serious consideration of the principles that undergird our government or the long-term negative consequences of the amendment. (And it’s hard to believe that a political party that hopes to win a future gubernatorial election in this state would propose such a radical restriction of the governor’s power.) That the General Assembly would even consider an amendment that breaks so thoroughly with our constitutional principles, traditions and good sense reinforces the Founders’ wisdom in anticipating that legislatures would act rashly in response to strong passions in the public or demagoguery in their own ranks.

That the speaker of the House of Representatives puts forward a proposal that so radically breaks with our constitutional provision shows exactly why the proposal should be rejected.