Everyone Wants to Legislate – Except Legislators

Member Group : Lincoln Institute

Our nation’s Founding Fathers bequeathed us a governmental system with a delicate balance of power between three branches designed to keep any one from dominating public policy. Over the centuries each branch has made untoward excursions into the other’s territory, typically with an adverse outcome.

Here in Penn’s Woods our state constitution echoes the federal government proscribing certain powers to the executive, legislative, and judicial branches. That has worked reasonably well, at least until the COVID-19 pandemic when the lines of separation became blurred.

Legislative powers appear to be the Holy Grail of governmental power. It seems everyone wants to legislate – except legislators. Let me be more precise: except for the Democrats who cling to the barest of majorities in the state House of Representatives. They have been more elusive than Waldo in recent months only now returning to work after a nearly three month vacation.

During that time frame House Republicans have repeatedly called for a return to session. In the state Senate, both Republicans and Democrats have returned to session over the summer months to conduct the important task of completing the state budget. House Democrats were more likely to be found at the shore than in Harrisburg.

While House Democrats were busy sunning themselves, Governor Josh Shapiro executed the latest raid on legislative powers. He announced last week that his administration would begin implementing an automatic voter registration system in Pennsylvania. And he is doing that without legislative authorization despite the fact election law is a power reserved for the legislature.

Republicans in the legislature were quick to react. House Republican Leader Bryan Cutler staked a claim to the issue saying “the problem here is not necessarily the end, but the means. The governor is following the sad and misguided precedent set by his predecessor that recognizes our election laws need updating and modernized but then disenfranchises the General Assembly from exercising its constitutional prerogative to make laws.”

State Senator Cris Dush was even more direct saying: “Circumventing the legislature – and the will of the people – is a blatant act of defiance against our constitutional republic. It bypasses the checks and balances that are in place to safeguard the interest of all citizens.”

Even former President Donald Trump weighed in calling Shapiro’s action a “disaster” by a “Radical Left Governor” and urging lawmakers to take legal action to block the change. The Pennsylvania House Freedom Caucus plans to do just that, and took the further step of questioning the security of automatic voter registration.

State Representative Down Keefer spoke for the Freedom Caucus saying: “Shapiro’s eagerness to pick up (former Governor Tom) Wolf’s mantle of running rough shod over legislative powers is disappointing . . . the citizens of Pennsylvania need to know what guardrails have been put in place to ensure that ineligible voters, such as convicted felons, underage persons, and non-citizens, will be prohibited from inclusion in the process.”

Keefer’s reference to former Governor Tom Wolf harkened back to his repeated trampling of legislative powers during the COVID-19 pandemic. Those powers were only curbed when voters took the historic and unprecedented action of amending the state constitution to bring his draconian policies to an end and restore basic freedoms to state residents.

Unfortunately governors are not the only ones to infringe on legislative powers. The Pennsylvania Supreme Court has a long history of legislating from the bench. And that proclivity has been especially prevalent in the arena of election law. The justices placed their thumbs – actually their entire fist – on the scales during the 2020 election repeatedly issuing election-related rulings that re-wrote provisions of state election law.

The high court’s trampling of legislative powers reached a crescendo when it appropriated unto itself the power to redraw congressional district lines – clearly a legislative power – and implement by judicial fiat a congressional district map drawn by a Left-wing college professor from California.

Election meddling by the Supreme Court and inconsistent application of the rules by the Wolf Administration resulted in the destruction of confidence in our state’s electoral process. To this day, a significant portion of the electorate questions the validity of the 2020 Presidential election largely because of the controversial law and rule changes.

To paraphrase Ronald Reagan: there they go again. With what is shaping up to be yet another hotly contested Presidential election with Pennsylvania being a key battleground state Governor Josh Shapiro is attempting to once again rewrite election law in a manner he perceives to be to his party’s advantage.

Not only is this a blatant violation of the separation of powers, but it will once again instill in the electorate the sense that our electoral process is lacking in fairness and integrity.

(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal and American Radio Journal.  His e-mail address is [email protected].)

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