July 5, 2012

Maine Voices: In this case, LePage's refusal to sign off on bonds not within his power

The writer says bonds that were ratified by voters fall under the category of an 'enactment,' a law.

By Orlando Delogu

PORTLAND – A recent Press Herald Maine Voices column ("LePage is making a responsible decision by delaying sale of bonds," June 22) argued that the governor was acting responsibly and legally in refusing to issue $40 million in voter-approved bonds.

ABOUT THE AUTHOR

Orlando Delogu of Portland is an emeritus professor of law at the University of Maine School of Law.

The folly of the governor's shortsighted approach to the use of bond revenues (lost infrastructure improvements, lost jobs, prolonged recession) is not examined here.

Suffice it to say, I disagree with the governor's bond policies.

But policy debates are part of the democratic process. Though seemingly interminable, they usually end by seeing which side has the votes. For now, the governor has the votes, and even foolish bond policies may be carried out.

Given his policy views, the governor can certainly refuse to offer a bond package. If the Legislature puts a bond package forward, he has the right to veto all or part of it (as he recently did with respect to proposed R&D bonds). His veto was sustained. That ends the R&D bond provision.

With respect to the remaining bond provisions, they go to the voters for ratification. The governor can urge voters not to approve them. If they are not approved, these legislative bond authorizations (like the R&D bonds) are also dead. These gubernatorial actions with respect to bonds may be bad policy, but they are within his constitutional powers.

But if one or more of the recent legislative bond authorizations on the ballot this November is ratified by the voters, these bonds will be in precisely the same position as the $40 million in legislative/voter-approved bonds (now more than two years old) that the governor refuses to issue.

With respect to these bond authorizations, we are no longer talking about legislative and gubernatorial policy alternatives. The back and forth of policy debates and vote counting is over. A past and/or the present Legislature has approved the bonds, the voters have ratified the bond proposals. We have what the Maine Constitution refers to as "an enactment" – an enactment is a law, a statute. A gubernatorial veto at this point is constitutionally barred (see Maine Constitution, Article IV, Part 3, Section 19).

In the Maine Voices column noted above, the governor's apologist, speaking of ratified bond authorizations, asserts: "The governor then has up to five years to borrow that money."

No such latitude or power exists. It is not conferred in Article V, Part 1 of the Maine Constitution, which lays out executive powers. It is not conferred in Article IX, Section 14 of the Maine Constitution, dealing with bond ratification. On the contrary, the Maine Constitution makes clear that the duty of the governor is to "take care that the laws be faithfully executed."

This terse constitutional mandate does not allow the governor to execute only those laws he agrees with, leaving other laws to an uncertain fate. It does not give the governor up to five years to execute the law. In short, the governor has no power to nullify an Act of the Legislature ratified by the voters.

Of course, no law can be executed overnight. When a bond authorization has been ratified, the governor and state treasurer must enter a national bond marketplace.

The normal course of events in such markets takes time, and requires that assurances be given by the state's executive officers attesting to the fact that bond authorizations for stated amounts and projects were properly passed. The ratified projects must be identified along with the vote count and ballot certification. The dates of these actions must be set forth and so forth.

These ministerial requirements of bond issuance take time, but not five years. More importantly, these market-driven "attestations" by the governor cannot be withheld as a back-door means of clothing the governor with powers he does not have under the Maine Constitution.

If there are other plausible justifications for delaying the issuance of a bond enactment, the governor is free to put these justifying factors on the table. Reasonable conduct by a governor that gives rise to delay in bond issuance will almost certainly not be challenged, and if challenged, will almost certainly be sustained.

But that is not what we have here. There is no emergency confronting Maine. Interest rates are low. Our credit rating is high. The projects are needed.

The governor refuses to sign off on the bonds because he disagrees with bonding as a tool to provide needed capital improvements. He is simply nullifying a law he does not like. He does not have the power to do this. Legislative leaders, those adversely affected, should challenge this unconstitutional course of conduct.

– Special to The Press Herald

 

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