LePage headed for a legal smackdown

The justices of the U.S. Supreme Court in 2010. Larry Downing | Reuters

The justices of the U.S. Supreme Court in 2010. Larry Downing | Reuters

Gov. Paul LePage is going to lose.

And the 71 bills that he refused to take action on will remain law.

Attorney General Janet Mills left little doubt with a blisteringly effective opinion that destroys the governor’s legal argument about his ability to hold legislation beyond 10 days (not counting Sundays).

After a lengthy legal dissection of the governor’s weak arguments, Mills wrote: “Bills that have not been returned to the Legislature with objections of the Governor within ten days of being presented to the Governor, excluding Sundays, have now become finally enacted in accordance with Article IV, Part 3, Section 2.”

But a small note in Mills’ opinion points to a similar case — one in which Republicans took the opposite position of the governor — that was decided just last year by the U.S. Supreme Court.

In National Labor Relations Board v. Noel Canning, which Mills cited, the Supreme Court ruled that President Obama had exceeded his authority to make appointments during a Senate recess.

The president appointed three members of the labor board during a Senate recess that was interrupted by pro forma sessions.

Essentially, the president argued that the Senate was out of town and unable to conduct business, which allowed him to use recess appointments as he saw fit.

Recess appointments are meant to allow government to function when the Senate is away from Washington by allowing the president to fill key government vacancies without a confirmation.

The U.S. Constitution is serious about the separation of power between branches of government and, in this case, so are the justices. In a unanimous, 9-0 ruling, the court found that the president had tried to circumvent the role of the Senate to confirm high-level government appointments.

While not exactly the same circumstances, the key question of whether the legislative body was in session or not is central to both the NLRB case and LePage’s follies with un-vetoes.

In the most charitable reading of LePage’s legal argument, he claims that the Maine Legislature was adjourned, preventing him from returning bills that he intended to veto. Therefore, by this logic, he’s allowed more than the constitutionally specified 10 days.

Like the president, the governor is trying to circumvent the role of the Legislature by denying them an opportunity to override his vetoes or at the least, force them to stay in Augusta longer than necessary.

The Supreme Court based its ruling on a very simple and straightforward idea.

From Justice Stephen Breyer’s opinion: “the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.”

By its actions, the Maine Legislature made clear that it was retaining the capacity to conduct business and, in fact, members set a date that they would return to dispose of anticipated vetoes by the governor.

When the Legislature returns, it will still be in the First Regular Session, which has not yet ended, and lawmakers are prepared to consider any vetoes from the governor or any other business the members might wish to take up.

Republicans in Washington have politicized confirmations to the point that many positions within the executive branch and the judiciary have remained vacant irresponsibly long.

And it was their opposition to Obama’s recess appointments that eventually forced the Supreme Court to decide the matter.

It’s tricky to predict how any court will decide a controversial case, but with the strong case laid out by Mills and the recent Supreme Court opinion, LePage has no legal leg to stand on.

His legal maneuvers are wasting taxpayer dollars and distracting from the work that lawmakers should be focused on.

Even some of the governor’s strongest supporters realize that he’s headed for a defeat, which is why they have floated the idea of launching a People’s Veto campaign to repeal one of the new laws.

The Legislature, including the nonpartisan Office of the Revisor of Statutes, did the right thing by treating the 70 bills held by the governor as law. They followed the rules, the law and the Constitution. They are on firm legal ground

And, by doing so, they give LePage a very clear choice. He can either implement the laws as required by his oath of office, or he can face the consequences, which could be severe. With every nose-thumbing action, the governor gives new justification to the Legislature to consider impeachment.

Attacks on Mills came quickly from the governor’s supporters, but her legal analysis is strong and is backed up by the highest court in the land.

Thanks to LePage’s ideological allies in Washington, there’s clear guidance from a unanimous Supreme Court. The Legislature is in session when it says it’s in session, not when the executive decides.

David Farmer

About David Farmer

David Farmer is a political and media consultant in Portland, where he lives with his wife and two children. He was senior adviser to Democrat Mike Michaud’s campaign for governor and a longtime journalist. You can reach him at dfarmer14@hotmail.com.