Morris: Curbing Executive Power
by Leo Morris
During my tenure as president of one of the nonprofit boards I served on, there was a dispute between board members and the executive director over something the director proposed to do.
He thought – and about half the board agreed with him – that the action would be consistent with his duties under our bylaws. About half the board, including me, thought he was overstepping his authority.
As the board took action on his proposal, his side was feeling pretty confident. Their votes totaled one more than half, and since they knew I could not vote as president unless there was a tie, their wish would carry the day.
But what they thought they knew was wrong. I understood Robert’s Rules of Order, which our bylaws required us to use, better than they did, or at least had read it one page further than they had, and knew I was allowed to vote if that vote would change the outcome. I voted no, creating a tie, and the proposal failed.
I relate that incident to make a point beyond the obvious one of putting my humble bragging on display, a temptation to which I modestly admit succumbing on occasion:
The executive of an organization carries out the orders of board members, who must follow the bylaws of the organization in issuing those orders.
That’s pretty straightforward, and it should hold whether the organization is a nonprofit organization, a multinational corporation or a government.
But it can get complicated in a hurry, as we have seen in the ongoing dispute over the constitutionality of Gov. Holcomb’s forceful and numerous “emergency” edicts during the COVID pandemic.
No, you and I are not the board members for the state; there are between 6.5 and 7 million of us, and putting everything to a statewide vote would be as unwieldy and it would be unwise. So, we elect people to be our voice on the board – one representative for about every 65,000 of us, based on the 2010 Census, and one senator for about every 130,000.
All we can ask is that our surrogates pass laws faithful to the bylaws, as embedded in the Indiana Constitution, and that the executive faithfully execute them so that citizens clearly know what the rules are and that they will not change in the middle of the game.
Instead, if my conservative readers will forgive me for quoting former liberal Democratic State Rep. Christine Hale, they have created an “epically awkward” mess.
A majority of the Republican supermajorities in the House and Senate have said the governor’s edicts went too far, and they gave themselves the authority to call special sessions whenever it might be necessary to curb his power. “Foul!” cry Constitution watchers – only the governor has permission to call a special session.
But others have said the Legislature acted unconstitutionally in the first place by essentially giving the governor sweeping power to make law instead of merely carrying out the law and, further, that the mask mandate was especially egregious because it was not specifically mentioned in those sweeping powers.
The whole thing seems destined to end up before the Indiana Supreme Court, and that’s fine. Arbitrating disputes between the other two branches is a core function of the court. And given how cavalierly some treat the U.S. Constitution, it is gratifying to know that so many show the state one a little respect.
But surely there is a better option: Read one page further into the bylaws so you might realize you don’t know them as well as you think you do and that some of them could benefit from clarification.
In giving the governor sweeping emergency powers, legislators clearly envisioned an emergency of short duration, like a flood or tornado, not something that lasted for months on end. Our part-time legislators meet only briefly, and the governor is always there, so the longer a situation lasts, the more he is able to make up the rules as he goes.
So, change the Constitution to stipulate how exactly the governor and legislators must interact when and if an emergency lasts beyond a specified duration. Things might not be as simple as citizens would like, but they don’t have to be as complicated as leaders sometimes seem to want them.
An amendment to the Indiana Constitution would need to be passed by two successive sessions of the General Assembly, after which it would go to the citizens for a vote.
And that would give a say in the rules of the game to all Hoosiers, the ones for whom and in whose name the bylaws were drafted and the laws are passed. A little power would return to those who need it most and be taken from those who wield it too freely.
Leo Morris, columnist for The Indiana Policy Review, is winner of the Hoosier Press Association’s award for Best Editorial Writer. Morris, as opinion editor of the Fort Wayne News-Sentinel, was named a finalist in editorial writing by the Pulitzer Prize committee. Contact him at email@example.com.