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.

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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

    Stephen M. Krason 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.

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