Gov. LePage’s attacks on poor children and elderly test the limits of separation of powers

Gov. LePage’s attacks on poor children and elderly test the limits of separation of powers

The Fourth of July strikes me as a good time to think about a foundational concept in American politics, and June has provided some perfect object lessons in Washington and in Augusta. The topic is “checks and balances.”

Charles Montesquieu is usually credited with explicitly formulating the idea of a government of “checks and balances,” and he had enormous influence over the political thinking of those who framed the U.S. Constitution. We’re all familiar with the phrase; but, in practical terms, what does “checks and balances” mean?

We usually frame it as a question of “separation of powers” – that our different branches of government have different constitutional tasks to fulfill – but the political scientist Richard Neustadt was nearer the truth when he described ours as a system of “separate branches sharing powers.” Since passing and implementing laws requires the cooperation of the House of Representatives, the Senate, and the Executive Branch, no one part of our government can monopolize power. And, according to James Madison, the ambitions of the people who hold power in our several branches makes them jealously guard against over-reaching by other officials, even while they themselves try to push the boundaries of their own branch in order to achieve their goals.

So how is that concept working out, after all these years?

Checks and balances and, in Madison’s phrase, “ambition counteracting ambition,” have been all over the news last month.

In Washington, the Supreme Court “checked” a policy change by President Obama that would have deferred deportation for some four million undocumented immigrants (the order would have pertained to those who had not committed any serious crimes and who are related to U.S. citizens). Although, as the head of the branch of government which executes the law, the president has a recognized authority to prioritize some executive actions over others (prioritizing the deportation of violent felons over the deportation of the parents of American citizens, for example), a majority of the Court could not agree on whether this was a legitimate example of that authority. The loss is “frustrating” for the president, and, of course, devastating for millions of American families. The question of exactly how much independent authority on this issue presidents have has still not been decided; that “decision” will continue to shift, as later presidents and later congresses push back and forth on this issue.

Things seem a little clearer in Maine, because the head of our state executive branch has been so much more aggressive in pushing the limits of his power. But here, too, the attempt to define the political, legal, and even moral boundaries of “checks and balances” is still a long way from being resolved.

The Maine episode begins with federal money and the sort of vulnerable communities that the LePage administration so often targets. The U.S. government provides the states with money every year to be spent, via the program called TANF, or Temporary Aid for Needy Families, on low-income families with children; in Maine, the amount comes to just over $78 million. Despite an increase in the number of children living in poverty in Maine, the LePage administration has spent less of those TANF funds every year, and last summer, it announced that the unspent money was going to be redirected in “innovative” ways. Department of Health and Human Services commissioner Mary Mayhew characterized it as the “reprioritizing” of the money “to best serve our neediest elderly and disabled neighbors.”

Now, states don’t have to spend all of their TANF money, but the TANF money they spend must be spent on families with children under 200 percent of the poverty line. If they spend the money on any other part of the population, state officials have broken federal law.

Just to summarize briefly, then: at a time of rising child poverty rates in Maine, DHHS refused to spend federal money that was specifically designated for children in poverty on children in poverty, instead spending it on other people entirely, despite the fact that doing so is illegal. It’s kind of like Robin Hood, except that Prince John is actually trying to use tax money to feed the poor, and Robin and Marion are stealing from the poor to give to some other group of the poor.

Until last week, that is, when the governor decided that the “other group of the poor” doesn’t deserve the money that has been legally set aside for them either. On June 27, the governor, angry that the legislature refused his order to hold an expensive special session to rewrite some laws to which he objected, announced that he is cutting funding to various programs, including Maine’s Low Cost Drugs for the Elderly and Disabled Program. (And then, in classic LePage fashion, he lied about it, saying that Maine seniors living at 400 percent of the poverty line are covered by DEL – in which case, I guess, who cares if they can’t get medication? – when in fact recipients are limited to those who live below 175 percent of the poverty line.) To put it even more bluntly: in order to get revenge on the legislative branch, the governor targeted the elderly.

So, to sum up our lesson on the separation of powers: the federal government provided Maine with money specifically to be spent on families with children in poverty. Governor LePage disagreed with that policy choice, but rather than refusing the money, he took all of it, spent some of it on Maine children in poverty, and spent the rest on the elderly and disabled in poverty. Then, the legislative branch in Maine passed legislation that the governor, the head of the executive branch, didn’t like, so the governor returned to Maine’s elderly and disabled living in poverty, and took away money that had been set aside to help them afford their medication.

According to the assumptions of the Federalist Papers, we would now expect the federal government and the state legislature to push back against the governor’s ambitions. But people in poverty have long been a target of hostile neglect by Congress, which has given regulators of TANF very little authority to do anything about the kind of politics that the governor and Commissioner Mayhew have engaged in. So the federal government, thus far, hasn’t said much.

The state legislature, meanwhile, has tried pushing back, but it needs to hear from its constituents. Send an email, sure, or call, but you can do more than that. All of this governmental authority that has been divided among the branches ultimately comes from us, after all. Don’t be afraid to exercise that authority on your own. Let the administration – the governor’s office and the commissioner’s office, for starters – hear from you. Lord knows Governor LePage has been vocal when he thinks President Obama has overstepped the bounds of his executive power. Let LePage know that his hostage-taking oversteps the limits of his authority, as well as the limits of basic morality, democratic governance, and our patience.

Somehow, as the various institutional players of government fight out the battle of checks and balances, it’s our vulnerable populations who are the casualties. In keeping with the spirit of July 4th, let’s us, the people, do our best to put a stop to that tradition of abuse.

Photo via Andi Parkinson.

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Ron Schmidt
Ron Schmidt 45 posts

Dr. Ronald Schmidt is an Associate Professor of Political Science in the Department of History and Political Science at the University of Southern Maine.

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