2018-01-12 / Opinion

Flip-flops, Nullification Become Routine


Gordon Weil Gordon Weil When government reverses an established policy, the move can range from a “flip-flop” to outright “nullification.” A “flip-flop” is a switch in policy. Nullification is a move to ignore the law.

President Trump and his administration have been busy reversing measures adopted by his predecessor, President Obama. Executive orders go back to George Washington. Obama used them as a form of legislative action when a GOP Congress blocked his proposals.

The GOP criticized Obama for his excessive use of executive orders, though Congress could never overrule him. No effective legal action was attempted to halt his use of such orders. But some state attorneys-general were able to get courts to suspend his immigration rules.

Now the situation is reversed. Even with a Republican Congress, Senate Democrats have the votes to block repeal legislation. So Trump has done just what Obama did, issuing his own executive orders to revoke Obama’s actions.

Lacking many bills bearing his imprint, Trump has made a big show of ceremonies in which he issues executive orders. He tries to elevate these orders to the level of signing an act of Congress.

Then, executive agency actions are designed to reverse policies of the previous administration. That is normal, but these course changes seem to be more prevalent under Trump. At the U.S. Supreme Court, the Justice Department has abandoned many Obama-era positions in the middle of cases.

The most obvious policy switch came recently on marijuana, which is a controlled substance under federal law. The Obama Justice Department dropped almost all enforcement of that law in states that permit the medical or recreational use of marijuana. Its action opened the way for several states to legalize marijuana.

Attorney General Jeff Sessions has revoked the Obama policy and directed U.S. attorneys around the country to enforce the law without regard to state laws. While his action brought out strong opposition, it is difficult to fault him for enforcing the law.

The Wall Street Journal pointed out evidence that legalization has encouraged illegal activity rather than halting it. It also noted that a majority of Americans favor legalization.

If marijuana production and possession are to be made legal, it is up to Congress to do the job. It passed the existing law, but it looks like members want to avoid responsibility for legalization. Yet, that’s exactly their job, far more than Sessions’.

In 2017, Congress focused on the Affordable Care Act and taxation. The Republicans saw these as issues on which it had made promises and it could claim credit. Almost all other issues of real consequence were untouched. Voting on issues may be controversial, so Congress prefers to leave many decisions to the president or other officials.

With no fingerprints on such decisions, members of Congress are free to criticize. They leave the impression of runaway government, when they don’t take responsibility. Flip-flops instead of established policy are acceptable. In short, the reason flip-flops are the norm is the failure of Congress to act.

At the state level, policy switches may be even more serious. In Washington State and Florida, the legislatures are moving toward taking authority to nullify state court decisions on the constitutionality of the laws they have passed. Legislators claim judges have become, well, legislators.

They may be correct, but they should influence court action by better defining court jurisdiction and exercising greater care in confirming judges, avoiding picking them solely for their political views. Otherwise, nullification can overcome the essential separation of powers.

Nullification has a long history in the U.S., associated with southern states fighting against federal action on slavery. It is a direct attempt to deny decisions made according to the approved constitutional process.

These days, the best example of nullification is found in Maine. Under the state constitution, the people, rather than their representatives, may vote to adopt legislation. When they exercise their democratic right, they make law.

Last November, Maine voters passed a law to adopt the Medicaid expansion made available under the ACA. While the Legislature had previously passed such a law, Gov. LePage had vetoed it.

But, under the state constitution, there is no veto of laws passed by the people. The governor may be unhappy with the vote of the Maine majority, but he does not have the right to block the law enacted by the people, just what he and some GOP supporters now want to do. The people are sovereign, not the governor.

Congressional failures, tampering with the separation of powers and outright nullification are all threats to core values of our political system.

Gordon Weil is a former public official. He lives in Harpswell.

Return to top