Maine is in the midst of a constitutional crisis, a quiet one that nobody wants to talk about, but a crisis nonetheless.

The latest episode involves Gov. Paul LePage’s executive order to halt spending authorized by the Legislature, and to reallocate funding from other accounts, because he doesn’t like the way lawmakers appropriated money, and after legislative leaders declined — appropriately — to reconvene a special session.

Augusta Sen. Roger Katz, a fellow Republican who is one of the few legislators to stand up to LePage, referred to the governor’s “Alice in Wonderland reasoning” in preferring to fund pay raises for the depleted corps of mental health workers through a hiring freeze to prevent recruiting any more employees. Editorial writers deplored, legislators criticized, but no one, to date, has done anything effective to reverse these unconstitutional actions.

No one knows whether LePage will follow through on his threats; he’s made many idle ones. That’s not the point: The governor is asserting powers that, under the state constitution and Maine law, he doesn’t legally possess.

This technique was called “impoundment” when a defiant President Richard Nixon refused to spend money appropriated by Congress under the Clean Water Act of 1972. Nixon said he supported the Clean Water Act, but objected to the size of state grants Congress provided. He vetoed the bill, was overridden, and still tried to have his way — as LePage is doing — by refusing to spend the money.

The confrontation produced major reforms in the congressional budget process, including the first budget committees in the Senate and House. Appropriately, Maine’s Sen. Ed Muskie was both principal author of the Clean Water Act and first chairman of the Senate Budget Committee.

As for “impoundment,” Congress had to wait three years for the U.S. Supreme Court to provide an answer, which was unanimous: The president doesn’t have the power to cancel appropriations voted by Congress. So it’s virtually certain that LePage lacks this power, too.

This crisis has been brewing a long time. It started in 2012, when LePage startled his own Department of Economic and Community Development by halting bonding necessary to finance grants the department was already paying for downtown redevelopment projects under the Communities for Maine’s Future program. LePage said state finances didn’t permit more borrowing, but that was a smokescreen.

What the governor did was to block the state treasurer — who has the authority under the constitution to issue bonds — from doing so by withholding his signature from the bond warrant. The treasurer didn’t challenge the governor, nor did the Legislature.

As has become his standard procedure, LePage upped the ante. The next year he refused to issue any bonds until lawmakers paid accumulated Medicaid bills to hospitals.

Republicans upheld his Medicaid vetoes, and Democrats caved in to LePage’s unconstitutional tactics on bonds. He didn’t even issue all the bonds he promised to release, blocking Land for Maine’s Future funding until a legislative uprising, led by Sen. Katz, forced him to back down — although House Republicans still refused to approve a bill explicitly removing the governor from bonding procedures.

LePage is still blocking other bonds, and signs only for ones he likes. As a result, news stories routinely refer to the governor “issuing bonds.” That’s not the governor’s job; it’s the treasurer’s. He has hijacked it.

I’ve asked many attorneys what can be done about the governor’s malfeasance. The best answer I’ve gotten is that when one branch of government, the executive, asserts a power that appropriately belong to another, the legislative, the only one that can resolve the issue is the third branch, the judicial.

Fortunately, that’s much easier in Maine than under the federal constitution, when it wasn’t until after Nixon left office that “impoundment” was struck down. It’s called a “solemn occasion,” a declaration by the Legislature that a serious question exists over application of the law or the constitution.

Why lawmakers have not exercised this power since LePage’s depredations began four years ago is a mystery. There’s a chance — a small one — that the Maine Supreme Court would agree with LePage’s interpretation of his bonding and appropriations powers, but even so, the matter would be clarified, and then could be rectified.

No voter that I’ve heard from, and few legislators, really believe LePage has the powers he’s exercising. He’s abrogated both the constitutional role of the Legislature, and the rights of the people as expressed by their bond issue votes.

I have scant hope the current Legislature will contest this misuse of power. If it continues, then it will be up to a new Legislature, next year, to take as its first task restoring the rights the governor has taken away from us all.

Douglas Rooks has covered the State House for 31 years. His new book, “Statesman: George Mitchell and the Art of the Possible,” has just been published. Comment is welcomed at: [email protected]


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