Here’s what Mastriano won’t be doing on ‘day one’ | Patrick Beaty
Candidates for governor often have big plans, but once elected, can’t do much on their own
State Sen. Doug Mastriano, R-Adams.
By Patrick Beaty
Every politician has a plan. A policy agenda of things that will change when they are elected. For politicians seeking the executive office of governor, the plan often includes bold actions they will take on “day one” to make us safer or healthier or free from oppression by the government they will soon lead.
And then day one arrives for the winning candidate. And along with it, the cold reality of what it takes to actually accomplish their bold agenda.
There are basically three kinds of actions a governor can take immediately upon assuming that high office. New governors can appoint their senior staff and nominate department heads to carry out administration policy. They can issue executive orders instructing government agencies to act in certain ways. And they can propose new laws for the General Assembly to consider.
New governors who want to be seen as strong leaders – which is pretty much all new governors – will naturally gravitate toward the second option. They want to do as much as possible with the stroke of a pen, though they might be surprised to learn how little they can actually accomplish by executive order.
Take Republican nominee Doug Mastriano for example.
Mastriano has a long list of things to do on day one that includes eliminating all mask and vaccine mandates, prohibiting the teaching of critical race theory, rolling back environmental regulations, and requiring everyone to use the bathroom that corresponds to their “biology anatomy.”
Mastriano also plans to require all voters to re-register in order to remove deceased voters and “ghost voters” from the rolls, though it appears he has given himself a year to accomplish that task. His appointed Secretary of the Commonwealth will carry out the voter purge – along with the decertification of all existing voting machines – in the interest of “election integrity,” despite a lack of any evidence of widespread vote fraud.
Some legal scholars have rightly questioned whether Mastriano’s proposals would pass muster under various federal and state laws that are designed to protect the right to vote. But there is also a significant issue having to do with the limits of executive power.
In recent Pennsylvania history, the most popular day one action item for new governors has been the code of ethics for employees under the governor’s jurisdiction. Upon taking the oath of office, the governor will sign an executive order establishing strict standards for ethical conduct, including a ban on accepting gifts or other things of value from people outside of government.
Pennsylvania courts have upheld the governor’s power to impose a code of ethics even though no law explicitly authorizes it. Not because the State Constitution gives governors some inherent power to enact laws unilaterally. The code of conduct is permissible because it doesn’t affect the rights of people not under the governor’s control.
Tom Wolf has issued quite a few executive orders across a range of issues, including sexual harassment in the workplace, a minimum wage for commonwealth employees, and a moratorium on oil and gas leases in state parks and forests, among others. In each case, the order was crafted to fit within the limitations of executive power. Unless specifically authorized by statute to do more, the orders could only affect the actions of agencies and employees under the governor’s jurisdiction.
Governors have tried and mostly failed to stretch their power beyond those parameters.
In one of his last official acts as governor, Dick Thornburgh famously asserted executive authority to sell the state liquor stores to private industry, something he was unable to accomplish through the legislative process. That attempt ultimately failed, however, when Commonwealth Court ruled Thornburgh lacked the authority to privatize liquor sales even though the Liquor Control Board would soon expire under the old Sunset Law. Six months later the General Assembly passed a law signed by Thornburgh’s successor, Robert Casey, to re-establish the LCB.
It’s clear that Mastriano would have no more success if he ordered an end to “men in girls’ sports” or that all current voters must register anew. The problem isn’t just that his plans would violate certain federal and state laws. Laws can be changed, but that power belongs to Congress and the state legislature, not the governor. And the legislative process can be long and difficult, even when controlled by the governor’s own political party.
Mastriano really needs to stop telling us what he’ll do on day one as governor. Because if he wins, his supporters will quickly realize he promised a lot more than he could actually deliver.
Patrick Beaty served more than 20 years in Pennsylvania state government in the legislative and executive branches, including as legislative counsel to Gov. Robert Casey.
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