Sep­a­ra­tion of pow­ers de­bate may go to courts

GOP passed bills to give law­mak­ers say over some ex­ec­u­tive ac­tions

The Dallas Morning News - - Nation - Ivan Moreno,

MIL­WAU­KEE — If Democrats sue to pre­vent Repub­li­cans from di­lut­ing the pow­ers of Wis­con­sin’s new gov­er­nor and at­tor­ney gen­eral, the law­suits will prob­a­bly cen­ter on one ques­tion: Are law­mak­ers usurp­ing au­thor­ity that be­longs to the ex­ec­u­tive branch?

The le­gal threat arose after Repub­li­cans passed bills Wed­nes­day that would give law­mak­ers lever­age over ac­tions pre­vi­ous gov­er­nors and at­tor­neys gen­er­als could carry out on their own. If the bills are signed by out­go­ing Gov. Scott Walker, law­mak­ers will de­cide when the state can with­draw from law­suits, and the gov­er­nor will have to ask per­mis­sion to ad­just pro­grams that are run jointly with the fed­eral govern­ment, such as Med­i­caid.

“Sep­a­ra­tion of pow­ers is an es­sen­tial part of over­all gover­nance and built into the con­sti­tu­tion,” said Caro­line Fredrick­son, pres­i­dent of the Amer­i­can Con­sti­tu­tion So­ci­ety, a lib­eral le­gal or­ga­ni­za­tion. “I think that’s go­ing to be is­sue one.”

Walker, a Re­pub­li­can who was de­feated last month by Demo­crat Tony Evers, has in­di­cated sup­port for the GOP mea­sures, which would also em­power law­mak­ers, not the new At­tor­ney Gen­eral Josh Kaul, to de­cide whether to pull Wis­con­sin from a law­suit chal­leng­ing the Af­ford­able Care Act, a prom­ise of both Democrats’ cam­paigns. Evers said he was go­ing to is­sue that or­der on his first day. Now he may have to sup­port a law­suit to get that power back.

“If you look at this pack­age of leg­is­la­tion, the Leg­is­la­ture is try­ing to say, ‘You have to get our per­mis­sion to do stuff. We’re your su­per­vi­sors. The Leg­is­la­ture is not the su­per­vi­sor of the gov­er­nor,” said Lester Pines, a Madi­son at­tor­ney who fre­quently rep­re­sents Democrats.

Repub­li­cans who con­trol the Leg­is­la­ture say they are con­fi­dent they will sur­vive the le­gal chal­lenges.

“They have the right to go to court. We’ve al­ready vet­ted these with le­gal ex­perts that we be­lieve have shown that they are clearly con­sti­tu­tional,” Assem­bly Speaker Robin Vos said.

The GOP ac­tions in Wis­con­sin mir­ror what the party has done after los­ing con­trol of the gov­er­nor’s of­fice in Michi­gan this year and two years ago in North Carolina, where the state is still mired in law­suits. Courts have sided with Democrats there when judges find that law­mak­ers pre­vented the gov­er­nor from car­ry­ing out ex­ec­u­tive branch du­ties.

North Carolina Repub­li­cans de­fended their ac­tions by say­ing they were sim­ply re­bal­anc­ing con­sti­tu­tional pow­ers be­tween the ex­ec­u­tive branch and the Leg­is­la­ture — an ar­gu­ment the Wis­con­sin GOP has also made.

When Repub­li­cans voted to limit the pow­ers of Evers and Kaul, they also ap­proved lim­it­ing early vot­ing to two weeks, in­stead of the cur­rent 47 days. That pro­posal is viewed as most vul­ner­a­ble to a suc­cess­ful le­gal chal­lenge be­cause a fed­eral judge pre­vi­ously struck down a sim­i­lar mea­sure from Wis­con­sin Repub­li­cans, say­ing the lim­i­ta­tions were meant to dis­en­fran­chise black Mil­wau­kee res­i­dents who tra­di­tion­ally vote for Democrats.

Lau­ren Jus­tice/the New York Times

Out­go­ing Gov. Scott Walker has in­di­cated sup­port for GOP mea­sures that would em­power law­mak­ers to limit the au­thor­ity of in­com­ing Gov. Tony Evers.

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