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Why Didn’t MY Gov do That? A quick US gov’t refresher course

There have been a variety of responses from state governors, local mayors, and the US president to the COVID-19 pandemic. Some people are asking “why didn’t my governor do what XXX state governor did?” Or “why didn’t the president do that?” Aside from personal competence or political ideology there are some very important reasons why responses have varied. They are grounded in the US legal system and for the most part are there to protect your individual freedoms from tyranny. I’ll stay pretty high level with the US Constitution and two or three state constitutions – without adding the complexity of other laws (or other countries that are based in very different ideas of individual liberty). I’ll present this as a series of core concepts rather than a massive dissertation on the topic. And for pete’s sake, I am not an attorney. I have a masters degree in public administration and have worked around government my entire career, but I am not admitted to the bar anywhere and don’t have a JD.

Enumerated powers: Article I, Section 8 of the US Constitution outlines the enumerated powers, or those powers that Congress has. They include taxation, borrowing money, regulating interstate commerce, naturalization, regulate the currency, establish a post office, copyrights and parents, establishing the lower courts, declaring war, and regulation of the District of Columbia.

Reserved powers: The Constitutional concept that powers not granted specifically to the federal government were reserved to the states and to the people. It is codified in the 10th Amendment, but was part of the original understanding of the federal government held by the framers. That’s not to say that the intent hasn’t been argued many times in the Supreme Court.

State’s Rights: “State’s rights” is the more common terminology for the reserved powers interpretation that the states have the authority that isn’t specifically vested with the federal government.

Home Rule: Home Rule is a concept of state government that allows local units of government to make their own decisions based on what is locally determined to be the best way to address local situations. There is a spectrum that includes Limited Home Rule where local units have discretion in some areas, but more limited in others. That is where Home Rule and Dillon’s Rule starts getting a little muddy.

Dillon’s Rule: Dillon’s Rule is the idea that local units of government are creatures of the state government and only have the ability to exercise the authority specifically granted to them by the state through the state Constitution and other laws.

Full-time/year-round legislature: The US Congress and the Michigan general assembly are considered full-time legislatures. They meet all year with “recess” to return to their districts, attend to business at home, and vacation. There are also recess periods near holidays generally. Bills can be introduced at any time of the year. The US Congress needs to pass a budget as a series of appropriations bills.

Part-time legislature: Indiana has a part-time legislature. The House and the Senate are only in session for a few month of the year. In budget years (long session) the calendar is a few weeks longer than short session (non-budget) years. 2020 was a short session year and the general assembly adjourned on March 11th with a mandatory adjournment date of March 14th. They would need to come into special session in order to do further business in 2020, a move which would cost additional money and generally require them to come back to Indianapolis. They will convene after the elections for organization day, which is the first date that bills can be introduced for the long session. The primary purpose of long session, though, is passing the two-year budget.

Separation of Powers: The foundation of the country came from escaping the “tyranny” of a king. An important concept included in the founding documents was separation of power, or limiting the power vested in any one person (man). The creation of three branches of government is how the separation of powers is expressed. The Executive Branch (President or Governor at the state level) has defined powers and duties. The Legislative Branch (Congress or the state Legislature/General Assembly) makes laws that require the consent of the Executive Branch (or needs to be able to override a veto with a supermajority vote) and controls spending through the budget process. Most of the Legislative Branches in the US are bicameral, meaning they have two bodies, generally called the House and the Senate.Representation in the House is generally based on population and the Senate based on equal representation between geographic districts. The Judicial Branch interprets and enforces the law. The Supreme Court is the highest court in the US and the justices are appointed (by Presidents) for their lifetime. Other judges are appointed or elected depending on jurisdiction. Most non-federal judges are not lifetime positions.

Spending bills: Spending bills are legislation that authorizes spending money. In government money can’t be spent without authorization and can only be spent on what it is authorized to be spent on. So just because there’s money available for one thing that isn’t being spent doesn’t mean it can be spent for something else. The change in spending would need to be authorized. The budget is the framework spending bill, but then there are other bills that authorize programs that cost money and they have to be analyzed for their fiscal impact to the budget and where the spending can come from, See debt for understanding balanced budgets vs deficit spending. The US government and most states require spending bills to originate in the House. Authorizing new spending when a part-time legislature isn’t in session is costly and a logistics nightmare.

Tax credit: A tax credit reduces the amount of liability a tax payer has for taxes owed to a government. They are not considered income and are not taxed as income. The checks that most Americans are receiving are considered tax credits for 2020 (taxes payable in 2021). They won’t be considered income and won’t be taxed as income.

Emergency powers: The Supreme Court has said, “an emergency may not call into life a power which has never lived,” but “emergency may afford a reason for the exertion of a living power already enjoyed.” The federal government power to respond to national emergencies is based on the Commerce Clause, which gives Congress broad ability to regulate foreign and interstate commerce. It can also tax and spend for “the common Defense and general Welfare.” These powers are granted to Congress, not the President, but that does not stop the President from responding to a national emergency via executive action. State governments have broader powers than the federal government and can exercise what is known as the “police power” – protecting health, safety, and general welfare of the people.

Due process: When the government acts it has to afford due process – people can’t be deprived of life, liberty, or property without a timely legal process establishing the need for the government action. However, it has been interpreted fairly flexibly. The Supreme Court has ruled there are emergency situations in which postponing notice and hearing does not deny due process. This is how some of the states have been allowing for public meetings and hearings to happen virtually to continue government operations.

Takings: Under the 5th Amendment the federal government can’t take private property without “just compensation.” The Supreme Court generally doesn’t consider “temporary takings” to require compensation. So temporary closing of business and the like isn’t likely to be considered a taking and subject to compensation.

Census: The Census is mandated in the US Constitution for the purposes of apportionment in the House of Representatives. It is managed by the Census Bureau, which is part of the US Department of Commerce. The Census Bureau begins planning for the next decennial Census after the data is released from the most recent one. The 2020 Census is able to be conducted with online tools because it has been planned and tested for many years before being rolled out. The mailings are also planned and budgeted because over the long term that has been how the decennial Census has been conducted.

Elections: The United States Constitution sets parameters for election of federal officials, but state law, not federal, regulates most aspects of elections in the U.S., including primaries, the eligibility of voters (beyond constitutional provisions), the running of each state’s electoral college, and the running of state and local elections. All elections—federal, state, and local—are administered by the individual states.

Constitutional amendment: The Bill of Rights is the first 10 Amendments to the US Constitution. These are some of the amendments that people are most familiar with. Then there’s the 21st that ended Prohibition. Generally Amendments are difficult to pass and should be rare and for extraordinary circumstances. The US Constitution requires amendments to be ratified by the states. In Indiana a state constitutional amendment requires super majority votes of two successive sessions of the General Assembly and then a vote by the people. In Michigan the constitution may be amended by a two-thirds vote of the legislature, an initiative process, or a constitutional convention. An amendment to change voting could happen for an upcoming election in Michigan, but would take three or more years in Indiana.

Debt: State and local governments are mandated to have balanced budgets. Without additional sources of revenue, spending in one area means cuts in another area. Decreased tax revenue also generally means cuts unless there is a rainy day fund to cover the spending in excess of revenue. Not all states maintain a rainy day fund. The US government, on the other hand, has the ability to go into debt. And print money. There is no requirement for a balanced budget, deficit spending happens. There is a debt ceiling but it can be raised by Congress.

Postscript – I chose Indiana and Michigan because 1) I’ve lived in both states, 2) they’re adjacent, 3) they have different legislative seasons, and 4) they have governors of different parties. It allows for comparison based on their state constitution without them being radically different places but also not in lockstep. Also when I use “most” it isn’t a quantitative measure – it could be all but I haven’t checked. It is likely more than half, but also haven’t checked. It’s a general principle of government.

General resource: https://www.akingump.com/en/news-insights/covid-19-emergency-powers-and-constitutional-limits.html

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