Scoppe: The extraordinary case of Hampton v. Haley

Associate EditorMay 9, 2013 

— THE EXTRAORDINARY thing about the Supreme Court’s rejection of Gov. Nikki Haley’s attempted power grab was not the outcome, or even its unanimity. This was never a close call, constitutionally or legally. Anyone with even a passing familiarity with the fundamental principles of government knew the only questions were when the court would get around to issuing its order and how contemptuously the justices might admonish a governor who has shown repeated contempt for the constitution she swore an oath to uphold.

No, what makes Hampton v. Haley extraordinary is the same thing that made the case extraordinary at its inception: the fact that our governor, our treasurer and our comptroller general would commit grand larceny, in broad daylight.

The theft of legislative power occurred eight months ago, but now that the court has made the verdict official, it’s important to pause. To digest the lawlessness of Gov. Haley, Comptroller General Richard Eckstrom and Treasurer Curtis Loftis.

To recap: In August, the Legislature passed a budget that fully covered the increased cost of health-insurance premiums for state employees and retirees. The governor could have vetoed the funding but chose not to. Later that month, when the perfunctory matter of approving insurance rates came before the Budget and Control Board, the governor and her co-conspirators brushed aside the protestations of the two legislators on the board and voted to require state employees and retirees to pay part of the increase themselves.

As the court explained: “all the members of the Board acknowledged the General Assembly fully funded the premium increases such that enrollees would not bear any of the increases. However, by a three-to-two vote, the Board decided to split the premium increase between the State and enrollees.”

The question before the court was not whether the taxpayers should foot the entire bill. As the court correctly noted, that’s none of its business. As it also noted, in addressing the only relevant issue — whose business is it? — it’s none of the Budget and Control Board’s business either.

But let’s let the court explain that too: “The petitioners argue the Board did not have the power, except in limited circumstances not applicable here, to raise premiums for enrollees. They contend that the Board thus violated the separation of powers required by the South Carolina Constitution because it substituted its policy choices for those enacted by the General Assembly. We agree.

“The South Carolina Constitution establishes three branches of government and requires they be ‘forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.’ This mandate of a separation of powers stems from ‘the desirability of spreading out the authority for the operation of the government. It prevents the concentration of power in the hands of too few, and provides a system of checks and balances.’

“At its simplest, the constitutional division of powers can be described as ‘[t]he legislative department makes the laws; the executive department carries the laws into effect, and the judicial department interprets and declares the laws.’ ”

If that sounds a bit condescending, perhaps it’s because the governor has so frequently seemed not to comprehend the constitutional restraints on her power. As in the time she unconstitutionally ordered the Legislature back into “extraordinary” session because it refused to pass a bill she supported. (The court overturned her order.) Or the time she persuaded the GOP executive committee to ignore a Supreme Court 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.) Or the time she assumed powers that did not exist and ordered arrests of Occupy Columbia protesters camped out on the State House grounds. (In issuing a restraining order, a federal judge noted that the governor was “making up” the rules as she went along.)

Executive agencies can exercise some discretion in carrying out laws, the Supreme Court noted in this latest order, but only when the Legislature gives it that discretion. And here, not only did the Legislature not give the Budget and Control Board that discretion, but it could not have done so had it wanted to, because the sort of discretion the board exercised was so clearly a legislative prerogative.

As a side note, the court’s brief exposition on the unconstitutional delegation of authority continues to be grossly misrepresented by lawmakers, who argue that they would be unconstitutionally delegating their own authority if they allowed an executive-branch agency to enforce the ethics law. If it weren’t so misleading, it would be hysterical to see our legislators pretend to care about the separation-of-powers doctrine, since they so willfully and knowingly, and routinely, ignore it by acting as legislature and executive. But that’s not the issue at hand. The Legislature’s wrong doesn’t make the governor’s wrong right.

Although the governor and her co-conspirators clearly received bad legal advice, good advice was available in abundance in the days and weeks after the vote. Instead of heeding it, they dug in their heels. They changed the subject, and tried to turn a clear-cut constitutional question into a debate about policy. And I agree with them on the policy. But as members of an executive board charged with implementing state law, that’s none of their business.

The principles at play in this case are not inconsequential points of constitutional minutia. They are basic underpinnings of government in the United States. Not just in strong-legislative states such as ours but in strong-governor states as well: The legislative branch writes the laws. The governor has the power to veto, but once that’s done or not done, the executive branch implements the law. Whether it’s wise or not. Whether the governor likes it or not.

Our governor — joined by our comptroller general and treasurer — trampled all over that principle. Which is not a particularly smart thing to do when you’re trying to convince the Legislature to give you other powers that you also don’t have, but actually should. And it’s why we have that third branch of government.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.

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