The best opinion that US Supreme Court Justice Antonin Scalia has ever written garnered exactly one vote — his own. It is his dissent in Morrison v. Olson, the case challenging the constitutionality of the independent counsel statute on the ground that setting up a prosecutorial office independent of the President violated the separation of powers. As subsequent events proved, Scalia was right about the problems with that statute, and the rest of the Court was wrong (the statute, of course, is no longer in effect, having been allowed to lapse by a Congress that belatedly became convinced of its weaknesses).
Scalia’s opinion, interestingly for our purposes, begins as follows:
It is the proud boast of our democracy that we have “a government of laws, and not of men.” Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:
In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws, and not of men.
Much of Scalia’s opinion is specific to the question whether the prosecutorial function can be constitutionally separated from the President. But he also wrote more generally of the problems inherent in separating the exercise of power from accountability to the people:
As Hamilton put it, “[t]he ingredients which constitute safety in the republican sense are a due dependence on the people, and a due responsibility.” Federalist No. 70, p. 424. The President is directly dependent on the people, and, since there is only one President, he is responsible. The people know whom to blame, whereas “one of the weightiest objections to a plurality in the executive … is that it tends to conceal faults and destroy responsibility.” Id. at 427…. But [under the independent counsel statute] if, after a 90-day investigation without the benefit of normal investigatory tools, the Attorney General is unable to say that there are “no reasonable grounds to believe” that further investigation is warranted, a process is set in motion that is not in the full control of persons “dependent on the people,” and whose flaws cannot be blamed on the President…. [E]ven if it were entirely evident that unfairness was in fact the result — the judges [who appoint the independent counsel] hostile to the administration, the independent counsel an old foe of the President, the staff refugees from the recently defeated administration — there would be no one accountable to the public to whom the blame could be assigned.
… It is true, of course, that a similar list of horribles could be attributed to an ordinary Justice Department prosecution — a vindictive prosecutor, an antagonistic staff, etc. But the difference is the difference that the Founders envisioned when they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished.
Said another way: when you separate governmental power from accountability to the people, you create big problems. And, in fact, those problems were anticipated by the founders of our country, who therefore wrote protections against them into the federal and Massachusetts Constitutions. Scalia saw, correctly, that the independent counsel statute ran contrary to those protections and should therefore have been invalidated. Unfortunately, the rest of the Court did not.
Which brings us to today’s Globe story, already noted by Charley (and anticipated before it hit the papers by amicus), reporting that Governor Deval Patrick is trying to work out a way to bring the “independent authorities” back under the control of the Governor. This is an excellent idea that is long overdue, and he deserves a big round of applause for proposing it.
It seems to me fair to say that the “independent authority” experiment has been a colossal failure. The Turnpike Authority and Massport (and others as well, no doubt) have well-deserved reputations for being hack dumping grounds. The Turnpike Authority in particular, of course, also appears to be remarkably inept at doing its job. And when stories emerge about independent authorities wasting taxpayer money or screwing up in some other way, as they not infrequently do, elected officials’ only option is to fulminate — there’s nothing they can do. As Scalia said, there is “no one accountable to the public to whom the blame could be assigned.” Small wonder that an outfit that is neither controlled by someone accountable to the people (as is a normal government agency) nor dependent on the operation of the marketplace (as is a private corporation) ends up being very good at wasting money, as well as being a haven for make-work jobs and incompetence.
So don’t believe the spin by the Globe’s Frank Phillips and Andrea Estes, who in the first line of today’s article describe Patrick’s move to gain control of the authorities as “an unprecedented power grab.” That makes it sound as though what Patrick is trying to do is a bad thing, whereas precisely the opposite is true. Returning control of the authorities to the Governor — and thereby ultimately to the people — is a very good idea whose time has come.
David,
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What say you to the issue raised in the article about the legal questions surrounding takeover of authorities?
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The article doesn’t go into much detail, but I just finished Robert Caro’s The Power Broker about Robert Moses (a good, but hefty Christmas gift). Moses was a pioneer in using/abusing the public authority concept.
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One way he maintained power for three and a half decades was the utilization of a basic legal principle: that no state can impair the obligation of contracts (I am paraphrasing and probably jumbling things in the process).
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I presume that if this stuff is under serious enough consideration to be the subject of a Globe article, some bright lawyer has looked into this. However, not having access to their counsel, I was curious if you could hazard some thoughts, or at least point me toward some sources where I could research this stuff.
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Thanks.
Robert Moses was finally stopped but not, as the Power Broker makes clear, before he had become a law unto himself and wrought unprecedented destruction — including the destruction of many neighborhoods and the lives of thousands of innocent people.
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To the substance of your point, my legal opinion, such as it is, which is to say inexpert, is that (a) freedom of contract is at present subject to the public interest in this country (as established during the New Deal), and (b) where there is a will, there is a way. The law serves the people, not the other way around.
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We should bring the agencies back under legislative control, as David argues, and while we are at it we should bring the legislature back under popular control. The Big Dig established that the hackocracy has gone way too far in Massachusetts. The ConCon demonstrated that the legislature is out of control.
Bob,
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Agreed on Moses, not exactly a nice guy.
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Thanks for the thoughts, as inexpert as they are (dripping with sarcasm).
I mean, if Scalia said it, it must be right.
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But would you agree, even with regards to say the independent agency, Office of Campaign and Political Finance? It should be under control of the Governor?
Don’t remember hearing about this until right after Patrick but his hand on the Bible. If we have a GOP governor in four years, do we change everything back?
Using Scalia’s opinion from that particular case is an interesting twist, particularly in light of Scalia’s i) original intent bent and ii) reference to the Massachusetts constitution.
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So in that Morrison v. Olson case, Scalia says the original framer didn’t have agencies the didn’t report the to the executive branch, and then White said (or maybe he said it in an earlier case, Mistretta v. … (I forget) “hey Scalia, things are a lot more complicated now.” Sort of a form v. fuction standoff if I remember.
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And I think that even in Morrison v. Olson, the majority agreed that the Exec should go micro-managing the authorities, and Scalia came back to agree that yeah, his dissent only went so far as to the power of the Exec to fire the head of the agency.
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Now I think that the Governor already has the power to get rid of the head of the agencies. But, it takes a while. Years sometime.
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That’s probably a good idea IMHO. Otherwise, we could have, for example, toll booths coming down on the Pike in 2003, back in 2007, down in 2011…and so on.
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Wasn’t the very purpose of the agencies to first, leave them subject to Exec power, but insulated from political pressure and potential change every 4 years?
In arguing against Scalia’s dissent, Majority thought the Exec should NOT go micro-manageing the independent authorities.
by “agencies,” do you mean the independent authorities? (Normal agency heads, of course, serve at the pleasure of the Governor.) As for the authorities, I believe most of those Gov appointees, once installed, serve for terms of years, and are removable only “for cause,” which (as Jane Swift learned) is a pretty high standard at least in this state. I’m less certain of how the executive director positions work — they may be appointed by and serve at the pleasure of the board, as in a normal corporation. But I’m not sure about that.
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Was the point to “insulate” the authorities from “political pressure”? Sure — just like that was the point of the independent counsel statute. The problem is that it doesn’t work — or, perhaps more accurately, it creates more problems than it solves.
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Finally, on “form vs. function,” that of course is the big debate in separation of powers jurisprudence, with Scalia being the primary spokesman for the former position and Breyer for the latter. This case is one of my favorites along those lines — Scalia and Breyer both get to the same result, but via completely different reasoning. Give it a read.
…and for what it’s worth, I don’t think a political petri dish like Massachusetts can be trusted with some goo-goo measures. It’s part of the reason I opposed Clean Elections – the potential for abuse on the taxpayer’s dime was stupendous. But, once passsed, it should have been funed to allow the electorate to see what I saw.
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Is there a legal way to petition to abolish the authorities?
It’s important to distinguish agencies which transact public business the Governor is competent to control from those constitutionally required to be independent. There would be a conflict of interest if the Governor ran OCPF. And be very sure that the Mittster did not respect this important distinction, as his political motivated tampering with the Appellate Tax Board–which no Governor should control–reveals.
… not once but twice. The first when I read the Globe’s headline and accompanying article, the second time when David thinks Patrick has a snowball’s chance in hell in getting any control over MassPort and the Turnpike.
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How come I didn’t see any similar posts when Romney tried more modest and, hence, more likely, reforms like consolidating the MTA into MassHighways? Maybe my memory is going.
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There is ZERO probablity that Deval will make a dent in the patronage system which are the Commonwealth’s self-funding independent authorities devoid of public accountability.
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Too funny.
You mean back when Romney first tried to get control over the MTA? How about “because BMG didn’t exist then.” So yes, your memory is going.
My memory is going. David, thanks for the time line.
Like whether or not the legislature chooses to vote on initiative petitions, the question of control over quasi-independent authorities is unlikely to be decided on the public policy merits. Trav is very close to Tom Trimarco, the former A & F Secretary, who is on the Board of the Turnpike Authority and sure to play on Trav’s dislike of Patrick to try to torpedo any shift of control. The question is whether Deval will resort to politics as usual, Trav-style, to achieve control of independent authorities. I don’t think he can afford to. But it’s important that the obstacles to progress be clearly identified for all to see.
Now that the election is over, and the whole ‘Big Dig’ culture mantra has worked its magic – can you concede that the 2005 budget amendment that was voted down to give Executive oversight and the Wilkerson board packing scheme to protect her pal Amorello were LEGITIMATE problems?
see this post. I thought that was a bad idea from the get-go. On the question of giving Romney control of the MTA, I agree with Charley — they should have given it to him.
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None of that changes the fact that, having failed to get control of the MTA, Romney/Healey signed over authority that they still had to the MTA. That was an extremely bad move on their part.
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So, rather than my being “finally willing to admit” anything, are YOU “finally willing to admit” that Mitt Romney has never given a rat’s ass about anything that happens in this state? Yeah, he filed a bill to get control of the MTA. But he didn’t really try to get it, because he didn’t really care.
As subsequent events proved, Scalia was right about the problems with that statute, and the rest of the Court was wrong…
As I’m fond of saying, even a stopped clock is right twice a day. I’d even say that Scalia has been right more frequently than a stopped clock. On criminal sentencing, for instance, Scalia has led the revolution in criminal sentencing that is driving the tough-on-crime crowd out of their minds. How do you feel about that?
Keep me coming back. Nicely done.
Before completely writing off the independent authority, realize that in many cases they have been a very effective ‘good government’ way to separate certain activities from political pressure and to professionalize an activity. They also allow the authority to raise bond funds with a dedicated future revenue stream, which helps hold the state’s bond rating.
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Also, if anybody remembers the history of the Boston Harbor cleanup, they may remember that it took the creation of the MWRA, and insulating it from the political process to move that project forward. The harbor cleanup was finished on time and within its budget. Yes, the rates are very expensive, but we would be in a much worse situation today if that project was not undertaken by an agency with its own bonding power and insulation from the political process. I believe that we’d still have a dirty harbor if not for the MWRA. (Look at Syracuse NY that refuses to create a water/sewer authority and has a huge problem with a polluted lake and an underperforming sewer plant.)
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While I think there is something to be said for giving back control of these boards, there needs to be a check on these things. I voted for Patrick, and campaigned for him, so I support him. But, if another Governor from another party were doing this now, I’d be a bit worried. If we are talking about pulling the hacks out of the leadership roles at the Turnpike, that may be one thing.
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If we are talking about getting the state benefit systems to be standardized (no more big sick-leave buyback, etc.) that is a great thing. I hope we can get control of the problems without tearing apart the things that actually work right.
is that pretty much everyone in the rather large MWRA service area uses their service, pays their fees and reaps the same benefits. MWRA users are paying high costs for our water, but we’re not also paying for other people’s water systems too. And there’s public pressure across a wide geographic area regarding MWRA activities when rates rise.
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In the case of the Turnpike, things have gotten grossly unfair. Turnpike users also pay plenty of state taxes to maintain other roads around the state, whether or not we drive on them. Once the initial construction bonds were paid off, why should Turnpike users have to pay a rather hefty additional fee to use that road while people who use Rtes. 128, 495 etc. don’t pay anything extra? And now, most ridiculous, why should Pike users who never actually drive on the Big Dig portion of the road be paying extra to fund that project, when many people who use the actual roadway aren’t paying extra for it? That’s crazy.
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Can we really justify someone commuting between Framingham and Newton paying tolls that go to pay off Big Dig bonds, while someone commuting in from the South Shore to Boston doesn’t pay anything extra?
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It’s utterly unfair that a portion of residents in some western communities are seen as a cash cow for funding not only a Turnpike infrastructure (which admittedly does a good job of maintaining the road) but a chunk of the Big Dig. Either spread the Big Dig burden more fairly over everyone – an increase in the gas tax, some kind of tax surcharges on communities that benefit from the project – or collect the toll money from the people who use the actual roadways that cost a bazillion dollars (which I guess isn’t possible due to federal rules?).
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However, would a majority of legislators really care about easing an unfair financial burden among a minority of voters, if it meant adding a burden to a majority of their own constituencies? Unlikely. Which is why I doubt there will ever be equity in terms of how either the Pike or the Big Dig are being funded, under the current structure.
Which is why I support more EZ-pass toll highways throughout the state.
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P.S. If you’re new around here… yes, I’m serious — particularly in regions where there is commuter rail options.
FIRST jsutification I’ve ever seen for us NOT having tolls!
came at that very first phrase, “unprecedented power grab.” Let’s not pretend otherwise here: “Power grab” is not a neutral phrase. It’s judgmental, and it’s negative. And it tells me that either the reporters or the editors clearly had an agenda and a bias when putting the story together.
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Now, the agenda may very well have been simply to make the story as sensational-sounding as possible in order to get it on the front page. But whatever the reason, it tells me this is not a serious analysis piece that can give me useful information about the possibilities here.
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How do you insulate important executive functions from “bad” political pressures that keep them from doing their jobs, while putting in some sort of “good” oversight and accountability in spending the people’s money/doing the people’s business? This is a fascinating issue, one that goes to the heart of our democracy, and it deserves serious examination and debate instead of breathless tabloid treatment.
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The governor is considering something. He’s examining the possibilities. He hasn’t even decided to go ahead yet.
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One of the many things I am eagerly looking forward to in the Patrick administration is the fact that he is indeed a great communicator of issues and ideas, he’s not intimidated by potential reaction of the press or punditry in speaking his beliefs, and we may actually get some honest and open debate about important but difficult issues, instead of the calculated pandering of “how will this sound to the constituency I care most about” we’ve seen too often of late.
But in this case, it’s not a bad thing. A righteous power grab would not only be positive, it would also be appropriate.
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Knowing there are those among us that take the Boston Globe seriously, deeply saddens me. The only significant difference between the Boston Globe and the National Inquirer is the Inquirer doesn’t try to falsely pass itself off as a source of legitimate and useful information. And referring to Frank Phillips as a journalist would be an insult to no-talent hacks everywhere.
… that we were talking about this last year, too.
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in reining in th unbridled power of the “Authorities”. However, please don't present “Deval” as some kind of luminary and the first to try to gain control. It's an old story of Governor after Governor trying to place the out of control “authorities” under the Governors control as they should be. Deval is just the latest in a long line of governors who recognize the corruption and are trying to do something about it.
Unfortunately, the mono-party, incredibly corrupt “State house” politicians have never allowed this to happen nor is there much chance that they will in the future. The foreseeable future will continue to see the “authorities” as a 'hack' dumping ground. After all, what is one to do with a faithful hack who voted “correctly” at the Senate president or Speaker of the House's direction? Isn't a 6 figure authority job appropriate with incredible health and pension benefits fair for such 'loyalty”
Massachusetts….the nations most corrupt State!
That's an interesting claim. I doubt it's true … but it's interesting. Here are states I would guess are way more corrupt than MA (or have been until recently):
NV, NY, NJ, OH (Tom Noe), KY, TX (Delay machine), AK (Stevens and Murkowski and Young, oh my) … possibly IL (George Ryan) and PA (scuzzy Philly machine), too.
our whole country has become. Charley, other States have corruption for sure. Sadly , Massachusetts is “right up there” for top honors IMO.
Now, on the other hand, what are the “clean” states? I would guess ME, VT, MN, OR, IA, WI. I base this on the thinnest veneer of knowledge, and mostly prejudice. Hope that's OK.
Oh my — on the list of corrupt states I forgot LA. Yikes. That might be #1.