The Wheels of Power Can Be Set to Reverse

Editor’s Note: This piece was originally published in The Messenger in January 2024. 

Whatever the U.S. Constitution may say about separation of powers, America today is a land of nearly unlimited executive authority. While we associate unitary power with the modern imperial presidency, state governors are happy to join in, as many did with broad COVID-era fiats.

These discretionary powers don’t have to be the instruments of expansive government authority, though. They could be powerful tools to bring governments back down to their proper roles, if only there were executives who cared.

Legislators in both Washington, D.C., and state capitals have given executives a lot of discretion to make their own rules when following the vague goals found in legislation. This gives the executives power to do what they want without needing to get legislators to agree.

Executives can use this power to rein in bad policy. Here are three examples.

The federal Jones Act forces domestic shipping companies to use American-made and -staffed ships, which costs much more than the market rate for ships typically would require. This increases the cost of domestic shipping. It especially hurts the people in Puerto Rico, Alaska and Hawaii, who ought to have market-rate maritime shipping available. The president has the discretion to offer exemptions to the Jones Act to help them; President Biden and others before him have chosen not to.

In my home state of Michigan, legislators add hundreds of pet projects to the state budget that waste billions in taxpayer dollars. Gov. Gretchen Whitmer (D) has the power to veto any line item in the state budget. She could have gotten rid of any or all of the pork projects, but chooses not to use her powers to do so.

Across the country, legislators give governors a lot of discretion over how to regulate licensed occupations. Governors don’t have to take a restrictive approach. They can expand workers’ access to job markets by ensuring that licensing requirements benefit the public rather than hinder new workers. Yet governors tend to follow the lead of existing providers, who have an interest in making it harder for new players to get licenses.

Executives have been given the power to secure benefits for the broad public interest, but in many instances, the incentive to support narrow private interests tends to be more compelling.

The domestic shipbuilding interest is a powerful lobby, for example. Its political power outweighs the financial and other costs the Jones Act imposes on American citizens.

Governors can secure loyalty from legislators by doling out money to their districts. The politics outweighs the basic principle that public spending should benefit the public.

The political considerations make executive discretion a tool of an expansive and intrusive government. You don’t get to be governor or president without some political skill and the ability to make political incentives work for you. That stacks the deck for favoritism and against the public interest.

All points of favoritism are brittle, however. A little bit of public spirit can crack open the political incentives that perpetuate the favors. While the Jones Act, pork projects and restrictive licensing laws are major political objectives of interest groups, those groups are helpless in the face of broad public skepticism.

Indeed, a clever official can win points with the public by demonstrating allegiance to the public over special interests.

It ought to be a winning formula. Maybe it can be. The key is to notice that government policy has too much favoritism that benefits private interests at the public’s expense. People will need to punish executives who hand out favors at the public’s expense and praise them when they cancel favors.

Maybe if there were stronger political benefits to securing the public interest, legislators wouldn’t have shipping protections, pork projects and licensing rules to reject or waive. Then we could also have both better government and stronger separation of powers.

Permission to reprint this blog post in whole or in part is hereby granted, provided that the author (or authors) and the Mackinac Center for Public Policy are properly cited.