Right of Recall Would Restore Checks and Balances
The thirteen American colonies had tried and failed to develop a unified governmental framework under the Articles of Confederation. So it was that upon conclusion of the Constitutional Convention in September of 1878 legend holds a citizen walked up to Benjamin Franklin as he exited Independence Hall and asked him what type of government would be established for the new nation. He responded: “A republic, if you can keep it.”
It hasn’t been easy, and at times the republic has teetered on the brink, but we’ve been able to keep that republic intact. One of the key principles of our governmental system is a carefully crafted system of checks and balances. Having recently freed the nation from the clutches of a despotic king, the founders were intent on preventing another tyrant from rising in what became the United States of America.
Here in Penn’s Woods, where our venerable constitution was drafted, our state’s system of checks and balances has broken down giving rise to the very abuses of executive powers our Founding Fathers feared. Under the guise of protecting public health during the COVID-19 pandemic Governor Tom Wolf has assumed a historic level of power that quite literally has touched upon the lives of every single Pennsylvanian.
The legislative and judicial branches are designed to put a check on such executive power. But, the judicial branch has become perverted at the highest level by an activist bench whose decisions are dictated by political calculus rather than constitutional or legal precepts. Instead of being a check on executive excess the state Supreme Court has become an enabler of that abuse.
As a result of this alliance the General Assembly has seen its powers emasculated. This is not to say lawmakers have not tried, because they have. Legislators even took the bold action of nullifying the governor’s emergency powers only to see the Supreme Court engage in an extraordinary display of judicial pretzel logic to achieve the governor’s political goals.
Republicans and occasionally a Democrat or two have passed numerous laws aimed at reopening Pennsylvania and restoring the balance of power. Those efforts have uniformly met with a gubernatorial veto. While the GOP holds a majority in both legislative chambers, they do not have the 2/3 majorities needed to override vetoes. Not enough Democratic lawmakers will put the will of the people over partisan pressures, so those vetoes have stood.
And so legislators took the next available step which is to propose a constitutional amendment that would give the General Assembly the clear authority to end declarations of emergency and thereby reign in the despotic tendencies of future governors. That amendment must be approved again in the next legislative session, likely in January, and then win voter approval in the May 2021 primary election. It will be at least the end of May then before the Wolf can be brought to heel.
There is one other step lawmakers should consider: a constitutional amendment giving “We the People” the right to recall statewide elected officials. Many states, notably California, empower citizens to recall governors, judges and other elected officials if during their terms of office they lose the consent of the governed.
Tom Wolf is governing with arrogance and impunity precisely because he is no longer accountable to voters. Constitutionally limited to two terms in office he cannot seek re-election, thus his political career is coming to an end. Simply put he doesn’t care what people think, he can do whatever he wants – and he is getting away with it.
By putting a constitutional amendment giving voters the right of recall into play, both the governor and the justices on the state Supreme Court would immediately become accountable. True, it would be November of next year before anyone could be recalled, but no elected official wants the stain of a recall vote on their legacy.
This would give voters the opportunity to render a real verdict on the governor’s performance and do so a year earlier than the scheduled 2022 gubernatorial election. It would be a mechanism for holding him accountable.
A recall provision would have an even more profound impact on the state Supreme Court. Justices serve ten year terms then stand for retention rather than re-election. Facing the possibility of recall justices would be more likely to stay in their lane of judicial review rather than their current habit of being super lawmakers.
If the legislature really wants to restore constitutional checks and balances – and reclaim their rightful place in state government – moving a recall amendment now would be an effective way of curbing the Wolf power grab and of proving to Ben Franklin that yes, a republic is something we can keep.
(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly American Radio Journal and Lincoln Radio Journal. His e-mail address is [email protected].)
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