How Christie has used an executive power he criticizes in Obama

20160108_inq_jchristie08-c
Gov. Christie said that if he had tried what the president did, the Legislature "would be opposing me tooth and nail." And some executive actions he did take drew accusations of overreach.

Gov. Christie blasted President Obama this week as a "dictator" and "petulant child" for taking executive action on guns, accusing the president of wrongly circumventing Congress.

"If I tried to do that in New Jersey with my Democratic Legislature, they would be opposing me tooth and nail in the courts and every place they could oppose me," Christie said Tuesday in a radio interview.

Yet Christie's own use of executive powers as New Jersey governor also has drawn accusations of overreach.

Through executive orders at the start of his first term - some of which were halted by courts - Christie sought to curtail political donations by unions, and suspend enforcement of the state's affordable housing rules.

More recently, he endorsed the recommendations of a commission he formed - through executive order - to change certain gun regulations in New Jersey, announcing last month that he would work through the attorney general to expand the standard for getting carry permits.

"If I had the choice now, I'd make New Jersey a state where you can have a 'shall issue' on conceal and carry," Christie said in a Fox News interview Wednesday, referring to laws that require authorities to issue licenses to people who meet criteria.

"Our Legislature won't do that," he said. "But what I have done recently is to make sure that we're making it easier for folks to be able to get a permit in New Jersey because they deserve the right to do that as law-abiding citizens."

Christie's office said that the governor's action was different than Obama's and that an executive order wasn't being used to change state policy on guns. It's the attorney general's discretion to implement the recommendations, said Christie spokesman Kevin Roberts.

Obama has used executive power "to make wide runs around a right outlined in the Bill of Rights and Constitution," Roberts said. But "we do not have any comparable action by this governor, whose use of executive orders has been largely administrative and within the purview of his authority, not end-runs around the Constitution or the Legislature."

The attorney general overseeing the gun changes, John J. Hoffman, has been serving in an acting capacity since June 2013, because Christie has not nominated him to be confirmed by the Senate.

"The effect of that is to circumvent the constitution," said Robert Williams, a state constitutional law professor at Rutgers-Camden.

The state constitution says the attorney general "shall be nominated and appointed by the governor with the advice and consent of the Senate," though it doesn't say the nomination must take place within a certain time frame.

At times, New Jersey courts have found that Christie has overstepped his executive authority.

In 2010, an appeals court ruled against Christie on an executive order that would have restricted unions from receiving state contracts if they donated to statewide campaigns.

"There are going to be times when you swing and hit; there are going to be times when you swing and miss," Christie said in 2010. Earlier that year, a court halted part of another executive order by Christie to suspend the Council on Affordable Housing's ability to enforce regulations requiring municipalities to provide affordable housing.

Christie, a fierce opponent of the housing mandates, continued to battle to eliminate the council, known as COAH. In 2013, the state Supreme Court ruled against his effort, using a different executive authority, to disband the agency. The court said Christie needed legislative approval.

Christie said in response to that ruling that "both elected branches of government approved the plan to eliminate COAH." But he and the Legislature had not agreed on a plan.

While New Jersey is considered to have one of the nation's strongest governorships, "what [Christie] did, particularly on the issues around COAH, went beyond what any executive had ever tried to do," said Adam Gordon, a staff attorney with the Fair Share Housing Center, a Cherry Hill nonprofit that has fought Christie on affordable-housing issues.

Governors, like presidents, have "pretty wide discretion" on executive orders, said Williams, the Rutgers-Camden law professor.

But "there are limits," he said - decided by how courts interpret a "pretty amorphous line" between implementing law and making it. "Prior to Gov. Christie's taking office, the courts in New Jersey had really avoided these questions."

Challenges were raised to "what most people think of as the most dramatic use of executive power" by New Jersey governors: Democratic Gov. Brendan T. Byrne's order in the 1970s restricting development in the Pinelands, and a similar order by Republican Gov. Thomas H. Kean in the 1980s to protect wetlands, said John Weingart, associate director of the Eagleton Institute of Politics at Rutgers University.

In both cases, the Legislature was "pushed to take action" in response to the orders, resolving the issues before the courts did, Weingart said.

When Kean issued the order to stop wetlands development, "my lawyers said, 'Your action is questionable,'" the former governor said this week. But lobbyists were blocking a bill in the Legislature, and "with the pace of development in the state . . . I didn't think we had any time."

Weingart said: "It makes sense for a governor to use executive action to do what they think is the right thing to do, particularly when the Legislature won't follow their lead."

Issuing executive orders is "one of the most important powers the New Jersey governor has," Kean said. Declaring an emergency by executive order "brings into line a whole bunch of powers you don't have otherwise."

Christie has issued orders to declare numerous states of emergency - including a fiscal emergency after he took office in 2010. One court challenge he won that year was over a school board's challenge to an order he issued freezing aid to schools to close a budget gap.

On the campaign trail, Christie has pledged that one of his first tasks as president would be to repeal a number of Obama's executive orders.

"When I get into the White House, on the first day, I will sign an omnibus executive order that repeals all the ones that I think are extraconstitutional, illegal, or an inappropriate use of executive authority," Christie said to applause last week in Marshalltown, Iowa.

Besides their sometimes-limited duration, there's another risk of creating change by executive action, Weingart said: "It's easier for opponents to attack the credibility of the process."

mhanna@phillynews.com

856-779-3232 @maddiehanna

www.philly.com/christiechronicles