Gubernatorial Activism

I have watched with amusement over the years as the charge of "judicial activism" has morphed from meaning something like "a judicial decision to overturn the will of the people" into something more like "a judicial decision the speaker doesn't like." A nice recent example of the latter was in Sen. McCain's May 6 speech, in which he condemned Kelo as an instance of judicial activism---even though the Kelo case left to elected bodies the decision whether to use the power of eminent domain for redevelopment projects. It was the losing side in Kelo that sought intervention by the courts to block the political process. Kelo may or may not have been rightly decided. (I happen to think it was rightly decided, although I thought the New London plan was a bad idea.) But if it was wrong, that is not because it was an activist decision, unless "activist" is now simply a synonym for wrong.

Meanwhile, it turns out that charges of activism have now moved from the judicial to the executive realm. Note the reaction of one conservative (ahem) activist to the news that New York Governor David Paterson issued a directive to New York agencies to recognize as legal out-of-state same-sex marriages. Here's the quote from yesterday's NY Times story:

“It’s a perfect example of a governor overstepping his authority and sidestepping the democratic process,” said Brian Raum, senior legal counsel for the Alliance Defense Fund, a national organization opposed to same-sex marriage. “It’s an issue of public policy that should be decided by the voters.”

Since when are governors not permitted to make decisions of public policy? Perhaps Mr. Raum was referring (obliquely) to the fact that Paterson was not elected Governor but became Governor when Elliot Spitzer resigned. But if so, this point is triply misguided: Spitzer himself favored recognizing same-sex marriage; Paterson was elected on the same ticket as Spitzer; and if the voters of New York State are unhappy with this decision, they can turn Paterson out of office and replace him with a Governor who will rescind the directive.

There could be a legitimate complaint of overreaching if Paterson's order purported to bind the courts and the NY legislature, but it appears not to, and with respect to the courts, it's not even clear that this would be overreaching. At the federal level, under the Chevron doctrine, executive interpretations of statutes are given deference by the courts. I'm not saying that Paterson's directive necessarily would be entitled to the same deference---only that seeking such deference would not automatically count as overreaching. In any event, Raum's criticism appears to be less about checks and balances and more about the substance of Paterson's directive.

Next up: Criticism of "legislative activists" who use their majority status to enact laws that oppress the constituents of the minority of legislators who oppose those laws. At that point, the critics will need to turn to the courts to block such laws, which, of course, will not be judicial activism because, uhm, you know, these will be BAD laws. Oh no wait. We're already there. See McCain speech, supra.

Posted by Mike Dorf