Friday, June 18, 2021

Post-Labor Day start order may be illegal


The attorney general’s office in Maryland has issued an opinion that says Governor Larry Hogan’s executive order to delay the start of school each year until after Labor Day and end the school year by June 15 may have gone beyond his constitutional authority. Or not.

Ocean City, Md., aerial view

“I can not say unequivocally that the Labor Day executive order exceeds the Governor’s authority, but I believe it likely that a reviewing court, if presented with the issue, would conclude that it does,” the Washington Post quoted Adam D Snyder, a lawyer in the office of Attorney General Brian E Frosh, as writing in a 24-page letter that was delivered on September 16 to state Senator Paul G Pinsky and Delegate Anne R Kaiser.

Maryland’s highest court, the letter said, has found the power to direct state and local boards on the topic of the school calendar to belong ‘comprehensively’ and ‘exclusively’ to the Maryland State Board of Education, since it is a matter of educational policy.


The attorney general doesn’t have the authority to “rule” on the constitutionality of Mr Hogan’s executive order, so this is merely a legal opinion. Other opinions may differ, and it is certain that Mr Hogan consulted attorneys before issuing such a sweeping order.

Furthermore, the judicial branch—not the executive, which includes both the attorney general and the state’s board of education—has the sole authority to interpret the laws and constitution of this state. Mr Snyder’s opinion of how likely it is a court would rule one way or the other when and if it ever considers the question of Mr Hogan’s constitutional authority to issue such an executive order is just an opinion, although it is certainly based on research.

That doesn’t mean it’s incorrect, though. In fact, the power of the executive branch in this case may come down to a distinction between making rules that direct school policy instead of directing the working conditions of state employees. The governor has clear authority in the latter, but when it comes to establishing education policy, the courts may in fact rule that Mr Hogan has overstepped his bounds, since the mechanism established by state law for directing education policy is vested in the governor through his role in appointing members to the Maryland State Board of Education. It’s not clear which side of the line this order falls on.

At the federal level, the Secretary of Education is a cabinet-level position. In Maryland, it’s a little different: The governor has certain powers when it comes to the state education department, but the actual power to create a “thorough and efficient system of free public schools” is given to the legislative branch. The General Assembly certainly has the power to pass a law that voids this executive order (Mr Snyder didn’t stumble on that point at all).

But ultimately, this letter addresses the wisdom of the order neither for schools nor for businesses in Maryland. I have stood behind the order in terms of its wisdom from an education point of view, but I haven’t mentioned much about its wisdom from a business perspective.

It’s claimed that an extra week or two of summer will bring in additional revenue for businesses in Ocean City and thereby for state coffers. I just don’t see how that conclusion is reached.

If a family of five were to decide to take a summer vacation to Ocean City one summer, they’re most likely to spend as many days and as much money in Ocean City as they would if their kids had to go back to school a week or two earlier. In other words, I have trouble figuring out just who will be spending all this extra money that is supposedly going to materialize with an extra week or two of summer.

Can you point to an actual person who will plan to spend more money in Ocean City next year if 10-year-olds don’t have to go back to school until after Labor Day? Because I can point to quite a few parents who will struggle to find someone to take care of their kids for the extra week or two in the summer but wouldn’t struggle if the days off were spread out over the year. And I can also point to quite a few kids who can’t wait for summer to end so they can get back to school.

But alas, the question of how wise this executive order is will be a completely separate question. The attorney general’s office here, right or wrong, addresses its constitutionality.

You might be interested in knowing how many executive orders presidents have issued. According to the American Presidency Project at the University of California, Santa Barbara, George Washington issued eight executive orders, about one for each year he served in office. President Franklin D Roosevelt holds the record with 3,721 executive orders, but in recent years, the number has been much lower:

  • President Bill Clinton: 364
  • President George W Bush: 291
  • President Barack Obama (so far): 249

I wonder if a similar study has been made about governors.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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