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]