The legal arguments in Augusta are flying fast and furious. Mark Eves purportedly has a (1) lawsuit in the offing, the constitutional contest between the Legislature and executive is playing out over (2) investigations and (3) bonding, while the governor and attorney general have each made their arguments on (4) the proper treatment of 51 bills.
I gave the BDN a quote on the latter. While I have my own assessment of the case, ultimately the Supreme Judicial Court – not me or editorial pages – will decide.
However, in my conversation with this paper, I attempted to put the governor’s aggressive legal position in the context of his previous actions. In this post, I have endeavored to provide a fair assessment. Reading the major constitutional and legal debates puts him in the win column more often than not.
With the four pending arguments listed, my guess is this streak will continue; he’ll win more than he loses. Let’s look back at some previous contests.
Line Item Vetoes
Gov. LePage likes to push limits and has never been afraid of using the veto pen on legislation – even when Republicans were in the majority in both chambers of the legislature. But the line-item veto had never been used in Maine prior to Gov. LePage’s election.
Added to the Maine Constitution during the King administration, it was adopted to give governors a chance to reduce spending without vetoing an entire budget. However, when drafted by the Legislature, it was deprived of teeth – it needed to be used within 24 hours of receipt of the bill, and an override could occur with a mere majority, unlike the super-majority necessary to override a traditional veto.
Since 2/3rds votes are generally necessary to enact budgets due to the timing of Maine’s fiscal year, there will almost certainly be enough votes to override a line-item. Yet the governor executed the first successful line-item veto in 2012.
Shortly after the voters enshrined the line-item veto in the Maine Constitution, the justices of the Law Court opined that its use does not prevent the use of the general veto. Thus, the Legislature must act on line-item vetoes within ten days, or else they are sustained and become law, unless a general veto is issued.
When the 125th Legislature scheduled its “veto day,” it set a certain date in the future to come back. The only way it could return prior was if a majority of both parties agreed to come back. With that opening, Gov. LePage sent up line-item vetoes, the Legislature chose not to return, and the vetoes were sustained.
This victory likely led to the rare adjournment “at the call of the President and Speaker” at issue today. Adjourning in that fashion prevented the governor from executing line-item vetoes likely to be sustained, as the Legislature would be able to return in the time frame specified by the Constitution or its own rules.
Paying the Hospitals
That plan was the securitization of liquor revenue to pay Maine’s old hospital debt. When the plan was originally presented in 2013, the Democrats delayed scheduling a hearing on it and ultimately charged the plan was “unconstitutional.”
Gov. LePage was prepared to push the question to the Law Court. However, in the interest of paying Maine’s debt, concessions were made to address some of their purported objections and move the matter forward. That wasn’t good enough for some Democrats, but ultimately Attorney General Janet Mills acknowledged the approach was permissible.
It took months of time – and associated delay – before the Democrats abandoned their support of the existing Baldacci structure and their attempts to link it to other matters. Nevertheless, the governor’s plan was adopted, the hospitals were paid, and the state has seen a significant increase in return.
Opinion of the Justices on Outside Counsel
Shortly after the Democratic victory in 2012, it became clear Janet Mills would be re-elected attorney general. Like Gov. LePage, she would not be afraid to use the power of her office to the maximum extent possible.
In some cases – like tribal relations – she was on the same page as the administration. In others – like MaineCare eligibility – she was diametrically opposed. While accommodations were made to “agree to disagree” yet continue administration priorities, there was always the likelihood that the relationship would deteriorate.
A similar situation occurred when Jim Tierney – a Democrat – was attorney general during the tenure of Republican Gov. Jock McKernan in the late 1980s. Their strained relationship resulted in a case before the Maine Supreme Judicial Court, which deftly sidestepped the question of the relationship between the two offices.
When Mills decided to oppose the governor’s legal position in the MaineCare case, she authorized outside counsel to represent the administration. However, she claimed the continuing authority to review the legal bills. She claimed similar authority in the case against Portland concerning General Assistance, although she had publicly – though not legally – opposed him there.
The governor took the matter to the Law Court, asking two questions on whether she retained that authority. The Attorney General argued they should not answer him on either. Ultimately, the Court answered one of the questions in favor of the governor, while declining to answer the second.
When the first major case challenging the Affordable Care Act was decided, most coverage was dedicated to the “Individual Mandate.” However, the decision also made Medicaid expansion optional. The Court said, effectively, the federal government cannot coerce states into expanding welfare rolls by playing “gotcha” and changing the rules.
It was not clear what impact this would have on Maine. In 2002, 10.8% of Mainers were uninsured. Gov. Baldacci began a concerted, intentional effort to decrease that number by expanding eligibility for government-provided health care. It did not work – in 2011, when he left office, 10.7% of Mainers remained uncovered.
Many of the newly covered populations were optional under federal law, and eligibility could be tightened at any time. When the Great Recession hit, many states with expanded eligibility considered doing just that. Washington offered enhanced reimbursement if states maintained their eligibility levels for a set period of years.
When the ACA was enacted, it included a so-called “Maintenance of Effort” (MOE) provision, restricting states from reducing their eligibility. The LePage administration – including experienced attorneys in the AG’s office – thought this was impermissible under the Supreme Court’s decision.
Effectively, Congress had said to Maine: “maintain your enhanced eligibility for five years and we’ll pay extra towards it.” Maine agreed. Then Congress passed the MOE, saying: “just kidding, you now have to maintain your eligibility permanently.” To paraphrase a pop culture icon: it was a trap!
Maine applied to tighten its eligibility, citing the Supreme Court ruling. The attorney general’s office assisted in preparing this case, expecting the Obama administration to cite the MOE and say any restricted eligibility was illegal. The matter was always going to return to the courts.
When Mills replaced William Schneider as attorney general, a policy decision was made – as is her prerogative – to end her staff’s representation in the matter, withdraw from the appeal, and enter her appearance opposing the governor. With outside counsel, the matter was brought to the First Circuit. The court ruled against the administration.
This can be fairly counted as a loss for the governor. However, the case was brought before the Supreme Court for appeal. That appeal was denied, which occurs in 99 percent of cases.
It is disingenuous to claim that the Supreme Court rejected Gov. LePage’s position. Commonly, the justices will not decide to hear a case until there are disparate opinions from the circuit courts; a so-called “circuit split.” In the future, Maine’s argument may be vindicated or repudiated, but the Supreme Court has not yet spoken.
Portland/Maine Municipal GA Lawsuit
Bill Clinton signed the Welfare Reform Act in 1996, which prohibited state or local public assistance for certain immigrants, unless a specific law authorized it. Maine had ignored this law for years, until DHHS sought to enforce it in 2014.
The AG’s office originally opined that enforcement of the law was unclear – there were arguments to be made on both sides. When DHHS drafted a rule and sought to promulgate it, AG Mills intervened and said it was unconstitutional. Gov. LePage directed the Department to enforce it anyway, leading to the lawsuit by Portland, Westbrook, and the Maine Municipal Association, publicly supported by the AG.
A Maine Superior Court ultimately ruled the department and the governor were correct — the federal law was self-executing and rulemaking was not necessary to deny GA benefits to certain categories of immigrants. Gov. LePage had indicated he would withhold all GA funding from municipalities, although apparently never carried out that policy. That decision was correct, as the court further found such an action would have not been permissible.
Lastly, following a lunch meeting with Gov. LePage and unemployment hearing officers in 2013, accusations flew of inappropriate behavior and illegal meddling. Many were launched by David Webbert, who currently represents Mark Eves. Ultimately, the Obama administration conducted an investigation.
The ultimate report reads much like the Wells (Deflategate) Report; full of innuendo and admonishments saying certain actions could be perceived as bias or could be interpreted various ways. But it finally acknowledges the meeting had no discernible effect on unemployment hearings and did not find any violation of law.
Towards the end, the document points out a number of errors in the unemployment hearings process – evidentiary problems, misapplication of law, no precedent providing consistent treatment for parties, etc. – that had prompted the governor to have the meeting in the first place.
It looks like the governor will be fighting multiple court battles in the weeks to come, one from Mark Eves and up to three from the Legislature. He may win them, he might lose them, or he could split. But a fair reading of the past major constitutional or legal issues would indicate he has more wins than losses.
People have bet against Paul LePage his entire life and he often proves them wrong. He might be able to do so again.
Full Disclosure: In some of these matters, I worked for the LePage administration and was actively involved, while others occurred after my tenure. Like anything, those inside the administration had various opinions on the merits or advisability of any course of action, but any specific individuals’ advice rightly remains confidential.