Battle over CMP corridor belongs in court, not at the ballot box


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I like latin. I was forced to take it in high school, but it turned out to be enjoyable. There was a coherence and logic in its rules. English was a little different, though it could be understood through careful thought.

America’s legal framework has a healthy dash of Latin phrases. Like Article I, Section 11 of the Maine Constitution, “The legislature should not make … retrospective law.” The United States Constitution contains a similar prohibition.

This is where the ongoing debate on the referendum on Central Maine Power’s Clean Energy Corridor begins. And because of this, the dispute will inevitably be settled in court no matter what happens in the November vote.

The constitutional prohibition of “ex post facto” laws has been interpreted exclusively for criminal law since 1798. So the opponents of the CMP don’t need to worry about the Constitution, do they?

Not quite.

As early as 1997, a unanimous US Supreme Court ruled: “[i]In both civil and criminal law, the Constitution limits the sovereign’s ability to use his legislative power to change the negotiations concluded with his subjects. “

In practice, ex post facto laws.

That is the core argument of the “No on 1” campaign. It’s a good one – and a bad one. It’s good because it addresses the basic principles of our nation. It’s bad because it’s basically an argument about the process. And if you argue about the process, you’ve already lost.

Until you come to court.

The “Yes on 1” campaign – the opponents of the corridor – shy away from any concerns about “repercussions”. Some argue that retrospective laws are no big deal; Legislators can change the law retrospectively. That’s not wrong, but it doesn’t make it right.

In Federalist 44, James Madison wrote that ex post facto laws “contradict the first principles of the social pact and every principle of social legislation”.

He went on to say that Americans “have seen with regret and outrage that sudden changes and legislative encroachments on personal rights issues become jobs in the hands of enterprising and influential speculators and pitfalls for the more industrious and less informed will”. the community.”

In other words, they don’t look good.

The reason proponents included the language of “retroactive” law in their bill stems from the Maine Supreme Court ruling that last year’s proposed referendum was unconstitutional.

Instead of focusing on a specific project, they have drafted a law that seeks to nominally cast a wide net while effectively confining itself to the corridor issue. In particular, they focus on the ongoing lease litigation issued by the Maine Bureau of Parks and Lands.

Which brings us back to another Latin phrase: ultra vires.

Playing around with retrospective laws is not a good approach for politics, even if it can evade constitutional prohibitions. The essence of American law is supposed to be clarity and predictability. People can then organize their affairs, however unpopular they may be, and protect their private property interests. The World Bank notes that private property rights should be high on the global agenda in the fight against poverty.

Therefore it should not be a question of which laws are good “ex post facto”; none are. However, if the executive does not have the authority to lease CMP certain lands of the state, the battle should be taken to court and the lease will be annulled as “ultra vires”.

Question 1 will almost certainly win at the ballot box. And I think it is being dismissed as unconstitutional “ex post facto” legislation. Then the opponents of the corridor will probably win their argument about the “ultra vires” character of the lease.

Thank god for latin.