Scoppe: When it comes to lawlessness, President Obama's got nothing on Gov. Nikki Haley

Associate EditorAugust 23, 2012 

WHEN THE Congress refused year after year to reauthorize or repeal No Child Left Behind, President Obama’s education secretary essentially updated it himself, announcing last fall that he would award waivers that had the effect of gutting key provisions of the meddlesome law.

When minority Republicans convened pro-forma sessions of the U.S. Senate last Christmas — to keep Mr. Obama from misusing a procedural move to bypass the Senate’s abuse of another shady procedure that was blocking votes on controversial appointments — the president made “recess appointments” anyway, in what was at best the most audacious stretch we’ve seen of the confirmation-bypass maneuver.

When the Congress refused to pass the Dream Act to extend amnesty to children of illegal aliens, the president renamed the proposal a “policy” change, and started offering the functional equivalent of amnesty.

For these sorts of actions, critics call the president a dictator and a tyrant, bent on destroying our nation.

What, then, should we call our governor?

When Occupy Columbia protesters camped out on the State House grounds last year, Gov. Nikki Haley assumed powers that did not exist — and that, had they existed, would not have been hers to act upon — and ordered arrests. In issuing a restraining order, a federal judge noted that the governor was “making up” the rules as she went along.

When the state Supreme Court ordered party and election officials to obey a state law that no rational person could defend, the governor persuaded the GOP executive committee to ignore the order and put her favorite candidate back on the ballot. The Election Commission refused to acknowledge the resulting lawlessness, saving the governor and the party the ignominy of being found in contempt of court.

When the Legislature passed a budget that required taxpayers to pay for state employees’ health-insurance premium increases, the governor, treasurer and comptroller general voted to raise employees’ rates anyway. A lawsuit challenging the decision is built on a string of unanimous Supreme Court rulings that adopted the arguments put forth by a string of Republican attorneys general.

The only thing (other than politics) that differentiates the governor’s overreaching from the president’s is that he doesn’t have any court rulings against him, or even, for that matter, a consensus of opposition in the serious legal community.

The serious legal community is in agreement that the governor has overstepped her authority. The court has so ruled in the first case. No one has even tried to put forth a legal argument justifying what she tried in the second case. And the most recent case — well, we’ll see, and likely sooner than later, but for the life of me I can’t imagine how she could possibly win that one.

No matter how masterfully Gov. Haley tries to frame it that way, the issue simply is not who should pay for the premium increases. Just as it was not whether it’s fair to kick candidates off the ballot for a technical error that they were misled into making. Just as it was not whether people should be allowed to take up residence on the State House grounds as a form of protest.

In all three cases — four actually, if you go back to her unconstitutional attempt to force the Legislature back into “extraordinary” session because it refused to pass a bill she (and I) supported — the governor has had an excellent political argument. But in each case, it was only that — a political argument.

In each case, as with the president’s actions, the issue that must be addressed before we ever get to the political question is the rule of law. What do the statutes and the constitution allow the governor to do?

Three times in less than a year, our governor has ignored the rule of law. Pretended that the limits of the constitution or the statutes do not apply to her. Had people arrested for doing things no law prohibited. Persuaded her political minions to take action in direct defiance of an unambiguous Supreme Court order. Assumed the power to rewrite the duly enacted state budget.

Perhaps we could forgive her one such instance of lawlessness. After all, she had extraordinarily limited governmental experience or exposure when she came to office. But three in less than a year? With no regret? Nothing to hint that she realizes she went too far?

Perhaps we could forgive Ms. Haley her initial decision on the health-insurance premiums. When she raised the issue at the State Budget and Control Board meeting, she simply wanted to delay the board’s (perfunctory) approval of the rates until a new panel she helps appoint could take office and, she thought, recommend changes.

It was only after the board’s attorney said the board had the authority to act in place of that new panel — and did not press the point when he warned that the board couldn’t ignore the funding plan in the state budget — that Ms. Haley pressed forward. And then she did so only at the instigation of Comptroller General Richard Eckstrom, and with the support of Treasurer Curtis Loftis.

But we can’t forgive her for how she has acted since then. Mr. Loftis at least has said he will reverse his vote if he can be convinced that the board acted lawlessly. The governor doesn’t even acknowledge that there’s a legitimate question. Instead, she dismisses the notion almost in passing, and returns to her political argument about what policy should and shouldn’t be.

There is no way that any attorney with even passing familiarity with our state Supreme Court’s separation-of-powers rulings could fail to advise his client that the board’s action was at best, at best, on shaky legal ground. That the Legislature has sole authority to appropriate. That once it appropriates, the executive must carry out those appropriations, whether they make sense or not.

The fact that the governor would be so utterly disdainful of the legal questions at play suggests that either she has ignored solid legal advice or else — and this is more disturbing, because it indicates that she is completely surrounded by sycophants — she hasn’t heard any.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.

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