There is an interesting case out of Alabama where Circuit Judge Charles Price has issued an extremely rare order blocking a governor from signing a controversial education bill. Price wants to have a mid-March hearing on the legal issues surrounding the education bill and does not want Governor Robert Bentley to sign it until then. The teachers’ group, Alabama Education Association, has argued that the Republicans bypassed state rules in the inclusion of a tax credit measure. Even if they are right, however, Price’s order seems wildly out of line as a constitutional matter.
The legislation would give municipal and county schools boards more flexibility in complying with state laws and would add tax credits for families who are in failing school districts to go to another public, private, or parochial school.
I have generally opposed such voucher programs as hurting the public educational system. As I have discussed in prior columns, I am a big supporter of our public school system as a vital component in the shaping and educating of citizens in our system. We have kept our children in the public school system because of our belief that they benefit from the diversity of the classes and society benefits from having a collective educational system for emerging citizens. Vouchers are often used in lieu of states spending the time, effort, and money to maintain a high-quality educational system. Alabama has historically shown one of the lowest levels of political and financial support in the nation.
None of that really matters, of course, to the legal issues in the case. A bill giving greater flexibility was passed easily on both houses, but in conference the bill was tripled in size by adding the tax credits. However, that bill was then approved with the tax credits by a vote of 51-26 and the Senate 22-11 along party lines. Unfortunately, we have seen such conference moves in the past and they often violate at least the spirit if not the letter of conference legislative rules. However, courts are extremely deferential to legislative bodies in how they conduct legislative business. So long as there is an up or down vote in the end, most courts treat the matter as a political question.
This brings us back is the Price’s order. I have extreme doubts about its constitutionality in ordering a governor not to sign a piece of legislation. That raises questions under the political question doctrine and more importantly the separation of powers. Thus, while I may agree on the merits that the tax credits are not a good idea for schools and should have been subject to a more open legislative process, Price went too far in the injunction of a governor in signing a bill. This is not the first piece of legislation that was viewed as unlawful. However, the challenge can occur after the bill is signed and the court can enjoin the agencies in carrying out specific tasks pending review. Thus, when I challenged the Elizabeth Morgan Act, I did not seek an injunction to prevent Bush from signing the law. Like this case the language stripping Morgan’s husband of parental rights was added in conference. Indeed, members opposed the provisions but it was pushed through by a small number of members in a transportation appropriations bill, including Frank Wolf, who was Chair of the committee. We ultimately prevailed in having the legislation declared an unconstitutional bill of attainder.
It does not help appearances that Price publicly debated running previously for governor.
Frankly, I am not sure why Price enjoined the governor when the teachers could have waited for the signature and brought a preliminary injunction motion to stop enforcement of the legislation. As it stands now, the state could seek an interlocutory appeal of the order. Instead, the governor has indicated that he will simply sign the bill. I would prefer the appellate approach rather than defying a court order. However, the best approach would be for Price to rescind his own order. [update: it appears the GOP is appealing the order]
Source: AL
I do not know what Alabama’s CONstitution says but most states have a clause that says something like the Governor when presented with a bill has 10 days to sign or veto it. If the Alabama CONgress is still in session and 10 days passes without a signature then the law automatically becomes law, if CONgress is sine die then it becomes a pocket veto (which I presume the judge would like).
Caterbo, A fellow lover of the great flick!
nick spinelli – “This is the more civilized counter to the Godfather getting Johnny Fontaine’s contract signed”
And Jack Woltz ain’t no band leader….
Onlooker, There will be a drone strike from the union “right or wrong” folks. Get low!! They’re as trigger happy as our prez.
Mespo,
Get a kick out of this……
http://dfw.cbslocal.com/2013/03/07/dallas-d-a-watkins-held-in-contempt-of-court/
This is the more civilized counter to the Godfather getting Johnny Fontaine’s contract signed
I don’t think the court order is worth the paper it’s written on, unless there’s some sort of arcane remedy with which I am unfamiliar that permits a court to issue what is essentially a writ of prohibition directed against a separate branch of government. And how does the plaintiff even have standing to seek relief in connection with a bill that is still going through the legislative process and has not as yet become a law? There is no justiciable controversy here. The whole thing is simply bizarre.
Onlooker from Troy:
“Unions, all too often, aren’t interested in the legalities of things, they just want to have their way; even if it takes unconstitutional and downright authoritarian means. Democracy and rule of law when it serves their interests, and diktats if that’s what it takes to serve their ends.”
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Substitute the words ” big businesses” for “unions” and both your statements present a very nice understanding of an unregulated capitalist economic system. Adam Smith would be proud.
Judges can order. Governors can sign. Does anybody think the Judge will order the Governor jailed? Does anyone think the legislature will revoke the commission of the judge?
What’s the remedy for violating one’s prohibition of the other? Not much.
If and when Justice Scalia looks at such a law he would delve into wherher it creates a White Racial Entitlement. He will wont he? I mean, he said that the Voting Rights Act created a “racial entitlement”. So, if a voucher is not an “entitlement” to retrieve a set of goods,, in this case a school program for a school year, then how would you characterize it Scalia? Alabama stays in the news. It used to be that if something played in Alabama then it stayed in Alabama. If this Judge was in Philly he was be busted for messing with the Governor. Of course here in Philly we talk for long hours and get nothing done. Kinda like that Ayn Rand kid in Congress. But the RepubliCons have it figured out. Segregation now, Segregation tomorrow, Segregation Forever. They got that notion from George Wallace. Now, with the voucher program all the white kids can go to the all white, or mostly white special feeds school. That is where they feed em all that apCray about “States Rights”. That is where the State has The Right to allow a county to operate a Segreation Now system without interference from some no good rotten Fed. Well, I could go on but I dont want to be accused of holding the floor like Ayn Rand’s kid did in Congress two days ago.
Seems quite awkward and inappropriate … declaring a law unconstitutional is one thing … ordering another branch not to sign a bill is another thing .. and out of line.
Section 43 of the Constitution of Alabama;
“In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”
I see no provision in the Constitution of Alabama wherein the judicial branch is expressly directed or permitted to interfere with the Governors discretion of bill signing.
Further, I see no means of the judiciary to acquire personal jurisdiction of the governor of the state of Alabama. It would be the same if a federal court attempted to enjoin the President of the United States from performing his official duties.
But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us. Mississippi v Johnson – 71 U.S. 475 (1866)
The court should not step in until after the legislationis passed and signed as Professor Turley has suggested.
Onlooker, without unions this country would not have a middle class. Now that unions are being attacked at every level of government, it is no surprise that the middle class is also shrinking.
Onlooker, perhaps you need to look more closely. Currently the government is increasingly on the side of our masters, that leaves only the unions fighting for working people. I am not a union member and have not been a union member for more than 40 years but I know that without unions we would not have 40 hour weeks, paid vacation, safety and health protection. If we eliminate those nasty evil awful unions we will all be left to the tender mercies of our masters and history has shown time and again that they have less than no concern for their peons
I think “OnLooker” has a good point. However I would not limit this “win at all costs” mentality to just the unions. It seems this has become the order of the day. “I’m right, therefore any method I do to get my way is right”.
I am not so bothered by the sign anyway in defiance of the judge. In my mind, the judge clearly overstepped his authority. When the bill is signed issue an injunction.
I would be interested in what was said when the Mass, Supreme Court ordered the Mass legislature to pass a gay marriage bill, and the same in VT when that court ordered a bill be passed for gay marriage. I think that is more than outrageous too.
Unions, all too often, aren’t interested in the legalities of things, they just want to have their way; even if it takes unconstitutional and downright authoritarian means. Democracy and rule of law when it serves their interests, and diktats if that’s what it takes to serve their ends.
I’m interested in the relationship and history that Price has with this union, and unions in general.
While I am in total agreement about Price’s order being inappropriate, I am shocked – shocked I tell you – that the GOP is upset that a judge has adopted the Doctrine of Pre-emptive Warfare, applied it to state law and politics, and has run afoul of the Separation of Powers Doctrine.
Order not to sign… I agree with you…. Issuing an injunction to assure that it has met all other requirements…. Such as the administrative law side… I think is a valid challenge….. But, it seems that it may not be ripe until its signed….