Our Wimpy Legislature
By Steve Byas
Separation of powers is a fundamental pillar upon which our republican form of government rests. The legislative branch (Congress at the federal level, the Oklahoma Legislature in our state) makes the law, the executive branch enforces the law (the president at the federal level, and the governor in our state), while it is left to the courts to apply that law to specific cases that arise under the law (sometimes referred to as interpretation).Historically, the law-making branch of governments have had to jealously guard their powers from the encroachment of the executive. While the Constitution leaves no doubt that the power to go to war rests with Congress, wimpy federal legislators have virtually ceded this power to power-grabbing presidents. The framers of our federal Constitution probably expected that the legislative branch would stand up for itself should the chief executive (the president) assume the power to make law. What they did not anticipate, perhaps, was that members of Congress would simply give in to the executive's usurpations, especially if the executive is of their political party.
Perhaps this explains why our Oklahoma Legislature so meekly accepted the governor's action, in her 2012 State of the State Address, when she decreed that all public facilities in Oklahoma will be smoke-free, with even the legislators' smoking room falling under her ban.
Let us make one thing clear: this has nothing to do with Governor Mary Fallin, and it has nothing to do with smoking, per se. Sadly, some will just dismiss this column as "an attack upon Mary," as though we should all be as wimpy as our Oklahoma legislators. I have never had a cigarette in my mouth, and love not having to smell the smoke from a burning weed.
This is about the principle of separation of powers.
This is about precedent.
Precedent means that once the Legislature bends the knee to the governor on this issue, the superiority of the governor in the making of law is established.
Make no mistake about it. Governor Fallin made law, a legislative function. She is not a Queen. Her job is to enforce existing law, not make new law, or amend an existing law.
Curious as to the legal basis for the governor's creation of a law via an executive order, I contacted the governor's office, and received a reply from Steve Mullins, the general counsel to the governor. For several years, Mullins was an assistant federal attorney in Oklahoma City. In 1995, he served as that office's press spokesman on the Oklahoma City bombing.
"The power of the Governor to issue executive orders flows from her role as the chief executive officer as granted by the Oklahoma Constitution, Article VI," Mullins responded. "Before issuing this executive order, Governor Fallin was advised by public health experts that cigarette smoke is a public health hazard, the government has a duty to protect nonsmokers' right to clean air, and smoking prohibitions increase the rate of smoking cessation and improve the health and fitness of the citizens of Oklahoma. Motivated by these facts, she issued her executive order."
According to state statutes that I researched, Governor Fallin appears partly within her authority as governor to ban smoking from state facilities, because state statutes in 2007 and 2010 had said, "All buildings, or portions thereof, owned or operated by this state shall be designated as nonsmoking." However, the statute also added, "(P)rovided, however, each building may have one designated smoking room."
It seems clear to me that, since the Oklahoma Legislature had placed in the law allowance for a designated smoking room, and Governor Fallin decreed that even the legislative smoking room will close, too (reportedly causing groaning from some of the wimpy legislators), then she has amended state law.
According to Mullins, "The executive order issued by the Governor of Oklahoma has multiple legal and practical effects. First, the executive order has an operative effect that requires certain actions be taken under the force and effect of law. In this particular case, Oklahoma has expressed specific legislative intent regarding smoking in numerous statutes. Where the executive order is consistent with the intent and scope of those statutes, the order has operative effect."
Does this mean that Governor Fallin's order closing down the legislative smoke room has no effect, or that she is over-riding legislative intent to allow for a "designated smoking room," or does it mean something else?
Mullins noted Governor Fallin "was advised by public health experts that cigarette smoke is a public health hazard," and "the government has a duty to protect nonsmokers' right to clean air." For sake of argument, let us grant that cigarette smoke is a public health hazard, and "the government" has a duty to protect nonsmokers' right to clean air.
This reenforces my earlier point. Governor Mary Fallin is not the government -- she is one part of the government. It was not the government that shut down the smoking rooms, it was the governor. If, after 100 years of existence as a state, it is determined that public health is endangered by what King James I banned as the "stinking weed" in the early 1600s (ah, the power of a King to simply ban what he does not like), then I contend it should have been done by an act of the Oklahoma Legislature, which has the constitutional power to make law.
President Obama's Environmental Protection Agency (EPA) is threatening to use this same type of reasoning concerning global warming to ban CO2. They claim that CO2 is a public health hazard and that since the Congress won't take action with something like Cap and Trade, then the executive branch is forced to act.
Mullins also said, "This executive order also functions as a policy directive. Policy directives are statements from the Governor to state agencies, communicating to those agencies what the Governor wants the agency to accomplish. The order does not have the force and effect of law. However, compliance by state agency heads who serve in cooperation with the Governor is expected in their individual areas of responsibility to the greatest practical extent."
Again, the Oklahoma Legislature is not the Oklahoma Department of Tourism. The Oklahoma Legislature is a separate branch of state government, and is not under the authority of the governor.
Mullins concluded that the executive order acts as a "general policy statement," adding that this is often referred to as the "bully pulpit." As Mullins explained, the idea of an executive's "bully pulpit" originated with President Theodore Roosevelt, who believed the president should use his platform to advocate an agenda. Of course, in this case, the governor is not just urging a course of action, she is demanding it.
In the end, this column is really not so much about Governor Fallin's usurpation of legislative authority, but rather the ceding of authority by those in the Oklahoma Legislature who are allowing this to happen. But, then, the vast majority are Republicans and Fallin is a Republican, so they just have to go along, don't they?
No, they don't. They don't have to be wimps.
Latest Commentary
Wednesday 31st of January 2024
Wednesday 31st of January 2024
Wednesday 31st of January 2024
Wednesday 31st of January 2024
Wednesday 31st of January 2024
Wednesday 31st of January 2024
Wednesday 31st of January 2024
Wednesday 31st of January 2024
Wednesday 31st of January 2024
Wednesday 31st of January 2024