The Consent of the Governed
5/19/2020
By Rep. Joshua Kail (R-Beaver/Washington)
Some have questioned the county commissioners’ decision in Beaver and across the state to stand against Gov. Tom Wolf, calling it an affront to the rule of law. The rule of law is critical, and the processes in place are essential to maintain a civil, ordered and free society.

However, the actions taken by county commissioners across the Commonwealth are, in fact, a means of restoring the tried and true maxim that those who govern rule by the consent of the people. This commentary is not a critique on the substance of the governor’s actions. I have said plenty (and have plenty to say) regarding the substance of the governor’s handling of this present crisis. This commentary is more fundamental. It is a defense of the principles we hold dear and how the process the governor is employing attacks those very principles.

The rule of law presupposes the consent of the governed. In other words, there is “buy-in” and legitimacy because we all, as citizens, have a say in the law through our elected representatives. The representative bodies, the House and the Senate, are assigned the duty to make law under our Constitution. This system requires laws to be properly vetted and peer reviewed by members across the entire Commonwealth. There must also be opportunity for public input and transparency.

A single law goes through the rigors of committees, amendment process and final passage, needing at least 102 votes in the House of Representatives, 26 votes in the Senate and the governor’s approval. We may not like laws that are passed, or even agree with our representatives on how they vote, but citizens must agree that they have a say through their votes in elections. If a legislator votes on a bill that is inconsistent with the will of the people within a district, constituents have the ability to run for that office themselves, or collectively vote that legislator out of office and reform the defective law.

We have this process in place to ensure that the voice of the people throughout the entire Commonwealth is heard on the laws that they are to be living under. It offers legitimacy to the law, a “buy-in” from all of us governed by the law, and the hope of reform every two years if that law is inconsistent with the will of the people.

Ruling by press conference completely undercuts the legitimacy and integrity of the rule of law and by every American standard or reason, is not a legitimate means of creating law. The people’s elected representatives are given no opportunity to oppose or vet a decision. Effectively, we have one person performing as the legislative branch and the executive branch.

There will come a time, if it is not already here, when the people being governed in this fashion will question the legitimacy of the current situation, even if the judicial branch affirms the governor’s actions. Do the governor’s edicts, with no elected representative input, amount to law that has to be followed? One could imagine how devastating abandoning standard process will be to our peace and order.

Additionally, the governor is the executive who carries out laws. The citizens of this Commonwealth, who have no say in the edicts promulgated by the governor, were under the impression (correctly) that it is not the governor who makes law. It is true that the governor was elected by the citizens of this Commonwealth. However, Pennsylvanians vote for an executive to enforce the law, NOT make it.

Of course, this begs the question: what about natural disasters and emergency powers? Emergency powers have always been specifically delegated to the governor in a temporal emergency that is quantifiable, visible and narrow in its scope and geography. Hurricanes, floods, blizzards, tornadoes and the like are the types of emergency situations we are familiar with, and legislators have granted the executive branch authority in those situations to fix immediate problems in a timely and limited fashion. Emergencies that arise with no end in sight demand a different approach. If not, what check is in place to prevent a potentially reckless governor from abusing emergency powers now and in the future? What if a situation arises in which it is politically advantageous for a governor or set of governors to declare an emergency and sidestep a legislature or legislatures for indefinite periods of time? The potential for abuse in setting this precedent is enormous.

For our current crisis, the people are well equipped to decide what actions must be taken by law and policy through their elected representatives. It has been proven during the past two months that the legislative body is capable of decisive action in responding to this virus and the governor’s edicts.

With no clear end in sight and with the governor having no decision-making transparency, the rule of one over 13 million must end. The people deserve their voices to be heard through their elected representatives. We must demand consent back to the governed. The rule of law, the legitimacy of the executive branch, and our way of life is at stake.

Representative Joshua Kail
15th Legislative District
Pennsylvania House of Representatives

Media Contact: Alison Evans
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