Who Stole the Power?
In the Plaut case, the United States Supreme Court discusses at length and quite forcefully the requirement that each branch of government act within the scope of its powers and not usurp the powers of another branch. You can read that analysis in the Opinion that accompanied the Cease and Desist Order.
Does the Plaut case apply to a state legislature?
ARTICLE III THE LEGISLATURE LEGISLATIVE POWER Section 1. The legislative power of the State shall be vested in a legislature, which shall consist of two houses, a senate and a house of representatives. Such power shall extend to all rightful subjects of legislation not inconsistent with this constitution or the Constitution of the United States. The Plaut case illuminated the history and general principles underlying the Separation of Powers doctrine, examined the expression of those principles in the United States Constitution, and applied those principles and the constitutional scheme to the facts of the Plaut case. That is the general judicial process when constitutional issues arise. |
Plaut is applicable to the state analysis, particularly because the State Constitution says that the legislative "power shall extend to all rightful subjects of legislation not inconsistent with this constitution or the Constitution of the United States." Article III, Section I.
The Supreme Court in Plaut is enunciating a general principle as well as applying that principle to the United States Constitution and its implementation within the United States Government. That general principle is that, when a document defining the structure of government separates the powers of government into different branches of government, each branch must respect the integrity of the other branches and the system as a whole by exercising only the power given to that branch.
The Hawai'i Constitution contains almost exactly the same words in delineating the separation of powers as does the U.S. Constitution. See the Addendum to the Opinion accompanying the Order to Cease and Desist. The same analysis would apply in a state court as applied in Plaut.
In this case, the Governor showed a complete lack of respect for the Judicial Branch and the decision of the Hawai’i Supreme Court.
The Supreme Court made a very simple decision: Section 343-5 applied to the question of whether the State should have prepared an environmental assessment for the harbor improvements necessary to allow the Hawai’i Superferry to operate and to the operation of Superferry, which would not happen absent the State improvements.1
Applying that law to the facts of the case, the State was required to prepare such an environmental assessment.
Once the Supreme Court announced that decision, the law was clear. Under 343-5, the requirement to prepare an environmental assessment triggered the section of the law that requires completion and acceptance of that assessment prior to the implementation of the project.
That
should have been the end of the matter. The only lawful action
possible after that decision was initiation of the environmental
assessment and cessation of all operations by the Hawai’i
Superferry.
Unfortunately, the Director of the Department of Transportation stepped in to render his opinion that the Hawai’i Superferry could continue to operate while the State prepared the environmental assessment.
While this position directly contradicted the law, the Governor embraced this opinion.2
The Governor, the Department of Transportation, and the Hawai’i Superferry then engaged in a conspiracy to violate the law by putting the boat into operation.
At that point, the Executive Branch supplanted the decision of the Hawai′i Supreme Court with a contradictory decision. This act was the first major violation of the separation of powers doctrine. With the law and its implications clear beyond question, the Executive Branch took it upon itself to both create new law (the boat can operate without a complete environmental assessment) and to overturn a final judicial decision (the boat cannot operate without a complete final environmental assessment).
The usurpation of both the legislative power and the judicial power by the Executive Branch is simply dictatorship, violated the Constitution and laws of both the State and Nation, and violated the Governor’s oath of office to uphold the Constitution and laws.
The usurpation of the legislative and judicial power for purposes of engaging in a conspiracy to violate the law is an impeachable offense.
The Legislature sat silently watching the Governor steal their power.
The Supreme Court had no action before it allowing it to protect its power.
Finally, the Circuit Court in Mau′i stopped the conspiracy by entering an injunction and voiding the harbor use agreement for that jurisdiction.
Now the Governor wants the Legislature to legitimize the Governor’s illegal and unconstitutional actions by granting a special exemption to the Hawai′i Superferry that will allow the Superferry to continue operating without the State having completed an environmental assessment.
The Attorney General, who joined in the Governor’s conspiracy, is now proposing to the Legislature a bill for that purpose.
1 The Governor and other proponents of the Hawai′i Superferry consistently ignore the fact that the Supreme Court found that even if the only question was whether the harbor improvements should have been subject to an environmental assessment, excluding the operations of the boat, the State Department of Transportation erred in not requiring an environmental assessment just for those improvements.
2 Apparently without consulting the Attorney General or warned by the Attorney General not to consult him.