IT’S NOT AT all surprising that the 4th U.S. Circuit Court of Appeals would rule that Gov. Nikki Haley and other state officials can be sued for having Occupy Columbia protesters arrested for violating a law that didn’t exist.
What should be surprising, and certainly is disturbing, is that our governor stands behind her decision — which suggests that she would do the same thing again if given the opportunity.
The issue here isn’t whether it ought to be illegal to camp out on the State House grounds. I think it’s perfectly reasonable to require protesters to go home for a few hours every night rather than becoming squatters. And in fact that is the law today.
The issue is whether it was illegal at the time that Gov. Haley called in the Bureau of Protective Services (which doesn’t work for her, but complied with her orders nonetheless) to arrest and forcibly remove the protesters. It very clearly was not. And even if the state had been able to put up a razzle-dazzle defense to convince a judge that a vague Budget and Control Board regulation prohibited round-the-clock protests, the governor did not have the authority to enforce that regulation, since she has but one of five votes on that board.
As a federal district judge explained at the time, in issuing a restraining order to protect the protesters, the governor was “making up” the rules as she went along.
What occupy protestors want is to be compensated financially for their 2011 arrests, which they argue violated their constitutional rights in addition to violating state law. The question of whether they deserve compensation and if so how much and from whom — the governor personally or all of us as taxpayers — eventually will be determined by a federal court.
What all of us should want is an apology from our governor, and a pledge to obey the rule of law.
Because this isn’t a first offense. Gov. Haley has demonstrated a disturbing pattern of assuming for herself powers that she very clearly does not have.
In 2012, 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, she persuaded Treasurer Curtis Loftis and Comptroller General Richard Eckstrom to join her in brushing aside the protestations of the two legislators on the board and requiring state employees and retirees to pay part of the increase themselves. Earlier this year, the state Supreme Court ruled unanimously that the governor and her co-conspirators had violated the constitution by usurping the Legislature’s power to write the law.
Earlier in 2012, she persuaded the state Republican Party executive committee to ignore a Supreme Court order and put her favorite candidate back on the ballot after that spring’s ballot purge. The State Election Commission refused to acknowledge the resulting lawlessness, saving the governor and the party the ignominy of being found in contempt of court.
The previous year, Gov. Haley unconstitutionally ordered the Legislature back into “extraordinary” session because it refused to pass a bill that she supported. The Supreme Court overturned her order.
In all of these cases, the governor had the right policy position: We shouldn’t allow protesters, or tourists, or anyone else, to camp out on the State House grounds. It made perfectly good sense to have state employees pick up part of the increased cost for their health insurance. Candidates shouldn’t have been kicked off the ballot for doing what state officials told them to do. The Legislature should have come back to town to pass the bill abolishing the Budget and Control Board — something it still hasn’t managed to do more than two years later.
But in every single case, she was doing things she had absolutely no legal authority to do.
Four times in less than two years, our governor 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.
This is lawless behavior. It’s the stuff of tyrants and dictators. And not once has our governor shown any remorse. Not once has she acknowledged that she is required to obey the law. Not once has she said, you know, I got bad legal advice. Or, I really should have done things differently.
Her spokesman responded to the court’s order this week by saying that “We continue to stand behind the decision made two years ago — and which is still the rule today — that the State House grounds are not meant to be used as a public toilet or campground.”
Notice the middle part of that statement: “and which is still the rule today.”
It’s not a rule; it’s a law. And it doesn’t still exist. It now exists, because state officials who care about the rule of law decided they needed to actually adopt a rule, and later pass a law, if they wanted to arrest people for violating it.
It’s not a radical concept, or a particularly difficult one. But it’s one our governor still can’t seem to grasp.
Ms. Scoppe can be reached at firstname.lastname@example.org. Follow her on Twitter @CindiScoppe.