Abuse of Executive Power a Sign of Democracy in Crisis

Donald Trump got a hard lesson in executive overreach last week when he was forced by public outrage to rescind his decision to separate children from their parents at the border with his “zero tolerance” policy for immigrants. Only a day later, Montana’s Gov. Steve Bullock decided he had the right as the state’s chief executive to circumvent Land Board approval for using state funds to purchase conservation easements on private lands. Although significantly different in scope and impact, both actions display a dismaying disintegration of the constitutionally mandated checks and balances between the executive, judiciary and legislative branches of government.

The Trump border debacle dominated the news last week, so no need to get into the gory details of terrified children being separated from their parents waiting to be taken to detention centers.

Trump’s self-initiated policy shocked Americans and drew international condemnation as exceptionally cruel and inhumane. In typical Trump fashion, he tried unsuccessfully to blame Democrats for his blunder despite the fact that his party, the Republicans, hold the majority in both chambers of Congress, the presidency, and a conservative majority on the Supreme Court.

What got Trump into the most ignominious action of his already extremely controversial presidency is that he decided to go it alone rather than follow the normal path of seeking congressional approval before implementing such a draconian measure. Why? Because he has no experience in governance, nor any respect for the institutions that have served this nation well since its inception.

Closer to home, it’s harder to explain why Governor Bullock, who has plenty of governing experience, decided to forego the longstanding procedure of obtaining approval from the Land Board before spending state and/or federal funds to acquire large, multi-million-dollar conservation easements on private lands. Instead, Bullock decided to unilaterally close the $6.1 million deal on the 15,000 acre Horse Creek Conservation Easement near Glendive in eastern Montana late last week without Land Board approval.

In Bullock’s case, consideration of the conservation easement was indefinitely postponed by a 3-2 vote of the Land Board, which is composed of the governor, attorney general, superintendent of public education, secretary of state and state auditor. While Republican Attorney General Tim Fox voted with Democrat Bullock to move forward on the acquisition, the other three Republican state-wide office holders did not. So, not unlike Trump, Bullock decided to go it alone on the assertion that he has the executive power to do so.

Without debating the potential benefits for public access and hunting the conservation easement would bring, the radical action by the governor sets a new and unwelcome standard of executive privilege by defying the checks and balances of the other state-wide elected officials on the Land Board. Like Bullock, they earned their positions by a vote of Montana’s citizens and have equal right to the validity of their votes. In fact, Bullock’s unilateral action even alienated Attorney General Fox, his former supporter on the acquisition.

It’s no secret that our nation is as divided as it’s been since the Vietnam War — especially along partisan political lines. This is in no small part due to the abuse of executive branch power by Donald Trump and his administration, but it’s no comfort to see more division here in Montana due to Bullock’s action. It’s a slippery slope when chief executives decide to forego the normal give and take of our democracy’s procedural norms — and we can only hope that we quickly restore the essential governmental checks and balances on which our nation was founded.

George Ochenski is a columnist for the Missoulian, where this essay originally appeared.