GOP and What Army? A Modest Proposal on How to Defy the Wisconsin Power Grab
In Wisconsin, the Republican power grab is virtually certain now to get the signature of the outgoing Governor Scott Walker and become law. The Republican-controlled legislature in the state has voted to strip the Constitutional powers of the incoming Democratic governor and Democratic Attorney General (specifically, his power to withdraw the state from litigation against the Affordable Care Act), as well as shorten early voting, weaken the new governor’s power to issue regulations on WI’s voter ID law and the state’s economic development agency.
Democrats have signaled that should the disgraced and outgoing Gov. Scott Walker (R) sign these subversions out of spite for the man who beat him, they may not get the last word. Lawsuits are a certainty, and of course, appropriate. The legislature cannot simply erode the powers of independently elected constitutional officers, and the voter suppression tactics have seen a rather successful level of resistance from the courts.
The lawsuits should fly fast and furious. But that does not have to be the Democrats’ only response. The incoming Democratic administration - Wisconsinites elected Democrats to every statewide office last month - should simply govern as if the power grab had not happened.
Before we all start clutching our pearls in reverence for the rule of law, allow me to explain.
There is precedence for this move. Elected executives can, on conviction, refuse to defend unconstitutional laws. They can also, by necessity, set enforcement priorities. President Obama, for example, refused to defend the Defense of Marriage Act in federal courts, and his view of its Constitutionality was reinforced when shortly thereafter the Supreme Court ruled that DOMA was, indeed, unconstitutional. President Obama, impatient with a recalcitrant Congress, implemented DACA, and the present Republican administration is having a hell of a time trying to knock it even in courts now packed with Republican appointees.
Gov.-elect Tony Evers, AG-Elect Josh Kaul, and the rest of the elected constitutional officers should follow this precedence and simply declare that they will not enforce the power grab because as a blatant attempt to usurp power from the voters, the “laws” run afoul of the foundational principles of the Wisconsin and US Constitutions. Kaul should immediately order his office to withdraw from the ACA lawsuit, and Evers should move forward as if he had all the powers over the voter ID law and the economic development agency that Scott Walker presently holds. The executive branch should refuse to enforce the GOP power grab, and further, refuse to defend them in court against inevitable challenges.
Play it out. If Kaul simply withdraws from the lawsuit against the ACA because he believes a law usurping his power to do so is unconstituional both because of separation of powers and because it would be changing the rules of the game in the middle of a case (the AG’s office sued without permission from the legislature, and so they can withdraw without permission as well), what could the Republicans in the legislature do? Hold him in contempt? Who is going to enforce a contempt citation against the AG - the governor? Evers could simply tell GOP to go suck their thumbs.
Similarly, what could the GOP do if Evers simply ordered state agencies to implement regulations on the voter ID law, or if Evers and Kaul signed a memorandum allowing more early voting than under the restrictive power grab? The Democrats could - and should - simply slap back at the legislature with “you and what army?” It’s time for some hardball.
Relax. I am not calling for anarchism. Democrats should, of course, obey the orders of courts, and only the orders of courts. But they should make Republicans take every single one of these power grabs to court and defend it, regardless of the likelihood of a favorable outcome.
The reason is simple. The defiance, and the resulting court cases, would serve to expose the GOP’s intentions behind their power-grab, force them to defend it in public for a far longer period of time than the rushed process they are availing themselves now, and give Democrats time to identify and target legislators who voted for this power grab for the 2020 elections. The landscape in two years is likely to be even more friendly to Democrats than this year, and the Wisconsin Senate only requires a flip of two seats to hand control to Democrats. Even if Democrats ultimately lose a few of the cases, the damage to the GOP in terms of exposure and campaigns will have been done. The two-year pressure campaign may not be something Wisconsin Republicans want to put up with anyway, and that may well cause them to surrender and roll back this power grab legislatively.
Either way, defiance gives Wisconsin Democrats the best leverage. If Republicans are not going to be shy about abusing their power to subvert democracy, Democrats cannot back away from standing up for the power voters gave them on election night. Democrats should do this even if it were only an act of civil disobedience, but it is not. It is a legally defensible move based on a bedrock principle of the American Republic: separation of powers.
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