Separation of Powers

The following article originally appeared in the MIRS newsletter in January 2001 in answer to the questions: "Has John Engler's tenure in the office of governor altered the balance of power between the legislative and executive branches of government and if so, has that change been good or bad?"

From time to time over the past 10 years, the charge has been made that Michigan Gov. John Engler has wielded gubernatorial authority in an aggressive or "heavy-handed" fashion—enough to tilt the balance of power in state government away from the Legislature and toward the executive branch.  Sometimes those charges have been accompanied by hints that his actions have been somehow harmful or extra-constitutional.   Close examination of the Engler tenure suggests, however, that the critics are off the mark.

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Perhaps no one would quarrel with the proposition that John Engler knows his job and knows how to exert his will with great effect.  In many ways, he would leave a massive, indelible imprint on state government if he left office today.  With two years to go and a Republican Legislature, he'll likely only add to that imprint.  The question is, what are the sources of the extraordinary Engler influence? 

In my belief, they are not underhanded, extra-constitutional, or otherwise nefarious.  They stem from an assertive personality who knows more about state government than just about anyone alive, and who has more fully utilized the powers the Constitution plainly gives him than any governor in recent memory.  The effect has been to shift some modest measure of power—or at least the perception of it if not the real thing—from the legislative branch to the executive and with, for the most part, positive outcomes.

It's important to establish at the outset that the governor cannot take power away from the legislative branch unless the Legislature lets it happen.  Long-time Engler confidant and Lansing attorney Richard McLellan notes that "the governor has only exercised authority that is constitutionally within the power of the executive.  Many of the powers were ignored by previous governors, but they were always there."   The voters of Michigan have never been asked to approve some constitutional amendment that would give the governor powers he doesn't already have.

Gleaves Whitney, chief speechwriter for the governor who is working on the authorized history of the Engler administration, argues persuasively that the strong executive authority wielded by Engler "is largely due to his own energy and alertness to what the Constitution provides."  Starting out in government as a state representative in 1971, Engler made it his mission "to know the Constitution and the rules of the Legislature better than anyone else."  He was the rare legislator who actually read the bills and the committee minutes and often "knew the opposition's arguments better than the opposition itself."  He studied the proceedings of the 1963 Constitutional Convention and developed one of the most thorough understandings of how the ConCon changed state government. 

The governor's legal counsel, Lucille Taylor, recalls that Engler's depth of knowledge about the rules and particular bills as a legislator gave him an advantage that superseded his seniority and even on occasion "got him in trouble with more senior legislators."  In the Senate after 1983, he was the leader of a caucus with a slim majority while the House and the governorship were held by the other party.  Yet, Engler understood the pivotal role that the Senate could play if exercised aggressively—a fact which served to elevate the clout and importance of at least that half of the Legislature.  Even before the critical election of 1990, he had proven that a single legislator armed with a better grasp of government than many of his colleagues and a clear sense of direction could wield enormous influence.  That determined, focused and meticulous nature has never left him.

Upon becoming governor, Engler asked members of his staff to take an inventory of all the powers and responsibilities the Constitution bestows upon the office.  He was intent upon using them to the fullest to accomplish his agenda.  Michigan's Constitution provides for a strong chief executive who initiates the budget, takes measures to ensure it is in balance, and wields a line-item veto.  The Governor is given broad authority to reorganize departments of state government, both to abolish and create agencies and shift functions from one department to another.  He can appoint judges without Senate confirmation.  With liberal use of executive orders, he can effect substantial changes in how, when and where state government performs its myriad duties.  Engler has employed all these powers frequently and decisively to cut spending, improve administrative efficiency, and shape the philosophical complexion of the judiciary from the Supreme Court on down. 

For example, through executive orders the governor has substantially slashed the size and spending of the Department of Education—transferring some of its functions to other departments.  Early in his first term, when faced with a financial crisis inherited from the previous administration, he abolished the General Assistance welfare program.  A Democratic House of Representatives howled about it but ultimately approved it.

A significant power the governor exercised more recently was his use of the Urban Cooperation Act to create the Michigan Economic Development Corporation (MEDC) and essentially move significant governmental functions outside of the executive branch.  This is more radical than his use of the reorganization power because it is not subject to legislative veto.  It also bestows a degree of autonomy and lack of oversight that were part of the original agencies transferred to MEDC.  Personally, I regard that as poor policy.  Moreover, one can (and should) criticize the MEDC for corporate welfare and other dubious activities, but it's hard to argue that it's doing things the law didn't give it the power to do or that aren't within the power of the Legislature to take away.

Because the state budget sets the priorities of state government, the governor's responsibility for initiating it gives a particularly strong and effective executive huge opportunities to put his stamp on the state.  In recent years, the process of arriving at a consensus revenue estimate through an annual conference has reduced the gamesmanship legislators historically play with regard to spending, and thereby further enhanced the governor's clout.  More often than not, that's worked to the benefit of sound fiscal policy and the state's taxpayers.

Two other factors in recent state history have had the practical effect of tilting the balance of power toward the executive branch, though they both are magnified by virtue of John Engler's skills and tenure in office.  The first is the fact that for a good portion of Engler's governorship, the House and Senate have been controlled by the GOP.  Republican legislators respect Engler's leadership and share many of his philosophical leanings and policy goals.  If he often gets his way under those circumstances, it's as much because of compatibility as it is anything else.  The second factor is term limits: any man with a strong personality and 30 years of experience in the House, Senate, and the governorship will naturally tower over legislators who are new to town.

And let's not forget that excepting the tight race of 1990, Engler has racked up two landslide mandates from Michigan voters.  That's enough to make any Legislature anywhere sit up and take notice.

Like anyone else who pays much attention to Lansing, I've heard the charges from time to time about Engler behaving "like a dictator" or otherwise exercising power at the expense of the legislative branch of government.  From a public policy standpoint, I don't agree with everything John Engler has done as governor, but the complaints of critics who carp about his use of power seem to me to have the air of sour grapes.  If a Governor were wielding his powers in the same fashion as Engler but for a different agenda, many of those critics would be perfectly happy.  Some of them are simply sore losers.

So has the balance of power between the executive and legislative branches been altered by 10 years of John Engler as governor?  Sure.  But that's because Engler is a master at his job who makes few big mistakes.  Has it been for the better?  That depends on one's policy perspective.  Generally speaking (and with more exceptions than I wish were the case), the Engler tenure has been bad news for the big government crowd and good news for those who put more faith in people than in bureaucrats. 

My advice for those upset about the "imbalance" of power is to stop complaining or try to win some elections.

"It's important to establish at the outset that the Governor cannot take power away from the legislative branch unless the Legislature lets it happen."