A One-Sided Concern About Procedures

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A trio of left-wing “good government” groups is entirely correct to be concerned about Democrat Governor Gina Raimondo’s extension of regulatory freewheeling indefinitely:

The state’s Administrative Procedures Act (APA) allows executive agencies to adopt emergency regulations for up to 120 days, with the ability to extend them for an additional 60 days.

But Raimondo’s executive order last week suspends that limitation and allows for emergency rules “indefinitely,” the groups say, as long as those rules are related to the coronavirus pandemic.

Writing to House Speaker Nicholas Mattiello and Senate President Dominick Ruggerio, the groups said, “By suspending the APA provision that already sets out the circumstances under which ‘emergency’ rules can be adopted, Governor Raimondo has essentially used a legislative grant of emergency power to seize even more executive emergency power. Doing so offends separation of powers principles and sidesteps the transparency that was deliberately built into the Administrative Procedures Act. ”

This is yet another bit of evidence that the enhanced emergency powers permitted within state law were not intended to cover a rolling “crisis,” like a pandemic, rather than acute, immediate emergency.  A pandemic may start out as an “emergency,” when it is new and unknown, but at some point, even if things don’t get significantly better (as they demonstrably have with COVID-19), the emergency is over and we’re just managing a challenging time.

Unfortunately, it’s an election year, so legislators have been content to allow our term-limited governor to bear the risk and reward of governing during a time of social fear.  Also because it’s an election year, the statewide news media has been content to give our local Democrats the benefit of the doubt so as to create contrast with the maligned Republican President, Donald Trump.

Particularly curious in the case of the Administrative Procedures Act complaint, however, is that this same trio of activist groups took to the courts as a backdoor way to change election law without following the appropriate procedure.  The process they followed is most commonly seen with environmental policy and works as follows:

  1. An activist group, unable to move policy through legislative or regulatory means, sues a sympathetic government agency to stop the law from being enforced or to require something that is not the law must be enforced.
  2. The activist group and the agency come to a settlement agreement to not enforce the law, or to enforce something that is not the law.
  3. A court signs off on the agreement.
  4. Presto chango… the law changes without following the legislative or regulatory process.

Such was the case with the consent agreement whereby the Board of Elections and Secretary of State agreed not to enforce the law, even though the state General Assembly had explicitly chosen not to change the law just weeks earlier.  Intrinsic to their argument was that COVID-19 was creating an emergency that permitted the court to ignore ordinary procedures.

The advocacy groups involved might reasonably argue that they are being consistent in always advocating to expand access and citizen input, but that argument contains an internal contradiction.  For the public to have a real claim to a representative government, the rules have to be followed.  In the balance of ballot access versus ballot security, our representatives settled on specific requirements.

Using extra-legislative means in order to push the views of those who favor ease of voting over security invalidates the citizen input of those with the opposing view.  That makes the RI ACLU, Common Cause RI, and the League of Women Voters of Rhode Island no better than the governor in their use of a non-emergency to push their agendas.



  • ShannonEntropy

    The Courts are always shoving policies that would never pass a referendum down our throats

    It’s even worse in the UK, where one law review openly admitted that “Judges do make law; they make law all the time and they always have.
    Laws do change as new situations abound and based on the Realistic theory, it has to be accepted that that judges do indeed make new law and that this is necessary…”

    https://www.lawteacher.net/free-law-essays/constitutional-law/do-judges-make-or-find-the-law-constitutional-law-essay.php#ftn17

    Gulp!! We’re almost there, if in fact we aren’t already there

    • Rhett Hardwick

      A little clarity here. “Judge made law” is at least as old as the common law. As we moved away form the common law to regulatory (Napoleonic) law, the legislature may declare insurrection to be illegal; but it is a judge who decides when an activity is insurrection and when it is protest.

      • ShannonEntropy

        Your example isn’t really a judge “making” law; it’s interpreting existing law

        “Making law” is when a judge nullifies State election laws and then literally changes the law to satisfy non-governmental litigants, as in Justin’s complaint supra

        It’s discovering after two hundred years “new” Rights that would never pass a referendum, like gay marriage or abortion. Or adding things to a law that isn’t already in there, like that the 1964 Civil Rights Act protects gay, lesbian, and transgender employees from discrimination based on sex

        See: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

        Judges making up law out of thin air to satisfy their own political whims should be an impeachable & removeable offense. If it trvly were, Ginsberg Kagan Breyer & Sotomayor would have been gone long ago

        • Rhett Hardwick

          Just as there was never a Golden Age of Journalism, there has never been a Golden Age of Law. Sovereigns have always been able to upend it, now it is appointed/elected judges. It survives because it is still the best system we have found.