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Watering Down the Separation of Powers

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Maryland Governor Parris N. Glendening is exercising political power that would be the envy of dictators all over the world. Declaring an emergency due to the current drought, Glendening has issued orders criminalizing the usage of water in Maryland. The governor’s decrees prohibited watering lawns; topping swimming pools; washing paved or outdoor surfaces; and running ornamental fountains. Businesses using more than 10,000 gallons of water a day were required to draft a water conservation plan satisfactory to Maryland bureaucrats. Initially, commercial car washes that did not recycle at least 80 percent of their water were required to close down. Under Glendening’s decrees, water violators face a warning for the first offense and a maximum $1,000 fine for each subsequent offense.

Since when does a governor in the United States have the power to enact laws and impose criminal penalties on the citizens of his state? Isn’t that traditionally the role of the legislative branch of government? Isn’t that what the doctrine of separation of powers is all about – the legislature passes the laws and the executive enforces them?

Apparently not in Maryland.

Moreover, not only has Glendening created a host of new water crimes without the consent of the Maryland legislature, the standards for who has to obey them are subject to the sheer whims and caprices of the bureaucrats.

For example, after the carwash lobby exerted pressure, the regulations were quickly changed to enable carwashes that don’t recycle to remain open but under reduced hours of operation.

One company was caught power-spraying new brick on a parking garage. An official answering the state’s drought hot-line confirmed that the power spraying was prohibited by the governor’s decree against washing outdoor surfaces. But another official later said that power spraying was okay after all because otherwise prohibiting it would constitute an undue hardship on companies providing that service. Meanwhile, in Westminster, Maryland state police cited a homeowner who used a pressure washer to clean his deck.

The equal application and enforcement of Glendening’s new water laws are even more problematic because the governor’s edicts expressly empower local jurisdictions to grant exceptions and variances based on “extraordinary hardship.”

Aren’t Americans supposed to be protected from this type of arbitrary and capricious governmental conduct? Under freedom and the “rule of law,” people have a right to know in advance exactly what conduct has been criminalized by their legislative representatives. Under tyranny and the “rule of men,” people have to answer to bureaucrats who make up the laws and decide who has to obey them as they go along.

Glendening justified his decrees as an “emergency” under Article 16A of the Annotated Code of Maryland. That provision defines “emergency” as “the threat or occurrence of an enemy attack, or any hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, landslide, mudslide, snowstorm, drought, fire, explosion, act of terrorism or other catastrophe in any part of the State which requires State emergency assistance to supplement local efforts in order to save lives and protect public health and safety.”

Where’s the “emergency” in Maryland in the context of that definition? Certainly no one has died of thirst or even come close. The adjoining drought-stricken jurisdictions of Virginia and D.C. haven’t seen fit to declare an emergency there.

Why didn’t Glendening simply call an emergency session of the Maryland legislature and propose his water code to it? It may be vacation time for Maryland legislators but why should that matter in the face of a true emergency? Aren’t emergencies what emergency legislative sessions are for?

The Maryland constitution, of course, is the state’s supreme law that governs Glendening and other government officials. Article 8 provides that “the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.” But perhaps Governor Glendening and his minions ought to pay more attention to Article 6, which provides in part: “The doctrine of non-resistance against arbitrary power and oppression is absurd, slavish and destructive of the good and happiness of mankind.

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Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.