The Kansas constitutional issues, which I’ve been tracking here because of their similarity to Washington’s McCleary case, continue to simmer. It appears that the Kansas Supreme Court is hearing two separate cases, one involving school finance issues directly and the other involving the fallout from the Legislature’s political battle with the Court.
The Wichita Eagle reported last Friday, November 6th that the Supreme Court heard argument in the school finance case. In this case, the Court has determined that the State has not fulfilled its duty to fund education, similar to the McCleary case here in Washington.
Ars Technica reported this morning that the Department of Justice has declined to defend the FCC in two lawsuits involving municipal-owned broadband networks. Back in February, the FCC adopted an order preempting state laws that attempt to prohibit municipal broadband networks. The states of Tennessee and North Carolina sued the FCC in March, complaining that the FCC does not have authority to preempt states in this area and seeking to nullify the Commission’s order.
These cases, and this development, are interesting on several levels: interesting that the FCC felt emboldened to preempt under Section 706, interesting that the Commission’s original order was supported by the Administration, interesting that two states are challenging the order on grounds that it violates the nondelegation doctrine, principles of statutory interpretation, and federalism, and interesting to see the federal law enforcement agency back away from the cases.
The Ars Technica article quotes former FCC attorney Ronald May on the curious nature of the DOJ’s filing in the cases and the possibility that the Administration is second-guessing the FCC’s interpretation of its own authority:
The decision is “especially curious” because the FCC was following the wishes of President Obama, May wrote. “We don’t know for sure, but my best guess is that the DOJ, quite rightly, is concerned about the lawfulness of the FCC’s preemption action. If so, the concern is justified.”
Stay tuned . . . I’ll continue to track this story.
Earlier this month, a Kansas trial judge took a poison pill inserted by the Kansas state Legislature in June of this year, thus triggering what might turn out to be an epic separation of powers battle between the Legislature and the courts in the Sunflower State. The object of the controversy is a 2014 bill, House Bill No. 2338, which strips certain powers from the Kansas Supreme Court over their budgets and their authority to select chief judges in the lower state courts. That bill was seen by some as retribution by a Republican-led Legislature for two Supreme Court decisions in which the Court determined that school funding was constitutionally inadequate, not unlike our very own separation of powers battle here in Washington State in the McCleary case.
The poison pill, or self-destruct button, is a provision inserted in a funding bill this year by the Legislature. This year’s bill provides that if a court overturns the 2014 legislation, then all funding for state courts in this year’s funding bill will be “declared null and void.”
On September 2nd, Judge Larry Hendricks of the Shawnee County District Court declared House Bill No. 2338 unconstitutional, setting off a battle between the branches on two fronts: (1) a continuation of the battle over the constitutionality of the House Bill 2338, and (2) the new battle over the constitutionality of the poison pill/self-destruct button.
In a fascinating recent opinion, the D.C. District Court ruled that a lawsuit filed by the U.S. House of Representatives against the Secretaries of Health and Human Services and the Treasury can proceed. Judge Rosemary Collyer was not persuaded by the arguments of the Obama Administration that the House does not have standing to sue the Executive branch. The decision is not a decision on the merits, but it presents a very unique constitutional theory. The claim by the House is that the Administration is funding programs under the auspices of the Affordable Care Act without an appropriation of funds by Congress.
Lyle Denniston, of SCOTUSblog, perhaps captured the Administration’s arguments and the court’s decision best:
The government had urged the judge to dismiss the entire lawsuit, claiming that the House cannot meet one of the basic requirements for a right to sue in federal court — that is, that it would suffer a legal injury from what the government has done. The House suffers no harm, the government argued, when the government chooses how to implement a law that Congress has enacted.
The judge, however, said the entire House of Representatives faces the potential loss of its specific authority to appropriate funds for government programs, if the government, in fact, has spent money without Congress’s prior approval. “Neither the president nor his officers,” the judge wrote, “can authorize appropriations; the assent of the House of Representatives is required before any public monies are spent. Congress’s power of the purse is the ultimate check on the otherwise unbounded power of the Executive.”
She added: “Disregard of that reservation [of power to the House] works a grievous harm on the House, which is deprived of its rightful and necessary place under our Constitution. The House has standing to redress that injury in federal court.”
Judge Collyer calls this the Non-Appropriation Theory, and because no case like this has ever been considered by a court before, the Judge will likely be given some professional deference for her originality.
The Court issued it’s decision on the question of sanctions today, without a subsequent hearing, a mere 24 business days following the last day of the 2015 legislative session, and a mere 13 business days following the filing of the Legislature’s required report to the Court. Clearly, the Court had a plan for it’s next steps in the case and for the imposition of sanctions against the Legislature, well before the Legislature completed its 2015 session and before it heard from the Legislature following the session.
The central weapon in the Court’s sanctions order is a “penalty” of $100,000 per day until the Legislature adopts “a complete plan for complying with” the state constitution. This is an interesting choice of sanctions, for several reasons. First, the “penalty” will be paid into a “segregated account for the benefit of basic education.” So, if the Legislature does nothing, the Court’s purposes will be fulfilled. Granted, at the rate of $100,000 per day, the Court’s expectations won’t be satisfied for a few decades, but the sanctions, ironically, allow the Legislature to satisfy the Court without doing anything.
Second, the Court’s sanctions apply to “the State of Washington”. (Throughout this case, the Court has made a tortured point to refer to the Legislature as “the State.” Why? The stated reason is, likely, that the state constitution mandates that “it is the paramount duty of the state” and the Court would likely explain that it is merely following the language of the Constitution. But the more likely reason is that the Court is quite sensitive about stirring the pot of separation of power, so it repeatedly refers to “the State”, rather than “the Legislature”, as the target of it’s orders. The Court must think we’re pretty dense. It’s impossible for the Court to disguise it’s aggressive, inter-branch campaign. The Court, consistent with it’s practice in this case, imposed the sanctions on the State of Washington.) This presents an interesting question: can the Court dictate the appropriation of state monies to this segregated fund where the state constitution clearly provides that the legislative authority of the State (including, presumably, the power to appropriate funds) shall be vested in the Legislature? The Legislature could, in it’s constitutional discretion, ignore the Court.
And, finally, the Court attempts to strengthen it’s sanction by announcing that the penalties “will continue to accrue until the State achieves compliance.” This is one of the most curious statements. Granted, questions about the Court’s authority to enforce any sanctions against the Legislature have been swirling for years. Now, this statement, in the context of the sanctions themselves, reads almost as if the Court finally and pathetically came to the realization that, when it comes to enforcing it’s will against another branch of government, is limited. If we flash forward to 2018, the year the Court expects the Legislature to have completed it’s plan, and imagine that the Legislature has done nothing to complete such a plan, or hasn’t done what the Court expected, then what? What can or will the Court do at that point? Will it retain jurisdiction in the case for another 3 years? Will it have the desire to continue the unconstitutional, inter-branch campaign? Will the composition of the Court be different, with different Justices, with different opinions on the appropriateness of such a campaign?
Lots of open questions remain. One thing’s for sure: when the Court finally realized the limits of it’s authority, it meant that the State Constitution, and the critical concept of separation of powers, had prevailed.
This morning, Crosscut posted Chris Vance’s commentary on the end of the legislative session and the next steps in the separation of powers fight between the Legislature and the Supreme Court in the ongoing McCleary case.
Despite all the momentous and commendable policy decisions they made this year, legislators, by their own admission, failed to comply with the state Supreme Court’s order that they adopt a plan showing how they will achieve full state funding of basic education by 2018. And they adopted a budget that actually increases the unconstitutional reliance on local levies. So now all eyes turn to the Court. Will they take action to force lawmakers back to Olympia to deal with education funding?
He spends much of the op-ed crediting Republicans in the Legislature for the reforms and budget solutions, and then returns to McCleary. Vance correctly points out what I’ve been preaching for some time, that very few, including those in the Legislature, appreciate the profound nature of the constitutional issues involved in this case:
As I wrote earlier this year, despite the fact that this issue has been percolating for decades very few people seem to really grasp what the McCleary decision is all about. This was a common observation among education lobbyists throughout the 2015 session.
Vance gives us a nice, concise review of the details of the case:
So let’s review McCleary:
The Washington State Constitution says it is the state’s “paramount duty” to “amply fund” a “uniform” system of public schools.
Our per-pupil expenditures are among the lowest in the nation. That’s not ample. And school districts rely on local levies for up to one-third of their funding. Given the disparities in local wealth and levy funds among districts, that’s not uniform.
The original, 2012 McCleary decision directed the state to fund a new “prototypical school model” by 2018 without the use of levies. The Court didn’t pull this order out of thin air; they were simply directing the Legislature to actually fund the education model, and meet the timelines legislators themselves established when they passed House Bill 2261 in 2009.
Then, Vance captures the real issues in the case better than any other story I’ve seen to date:
Little progress was made during the 2012 and 2013 sessions so the court justices ordered the Legislature to show them a specific, detailed, “complete” plan in 2014 for achieving full funding by 2018. The 2014 Legislature failed to adopt such a plan. The court found the state in contempt but withheld sanctions until after the 2015 session. But the Legislature, once again, did not pass a McCleary plan this year.
Why is this so difficult? Because actually meeting the court’s order will require billions of new dollars over and above what the Legislature has already spent. And doing away with levies for basic education will impact local bargaining, potentially changing dramatically how we govern our schools.
Yes, the Legislature has put roughly $2 billion more into our schools in the past two budgets. Lawmakers have reduced class sizes in grades K-3, and put money into all-day kindergarten and school transportation, materials and operating costs. But that is just the beginning of the state’s obligation.
There are still thousands of teachers and other educational staff who derive some or all of their compensation from local levies. That’s unconstitutional. The state must pay 100 percent of the compensation for basic education. In addition, the prototypical school model referred to by the court includes lower class sizes in grades 4-12, and the hiring of thousands more paraeducators, administrators, counselors and support staff. The total additional cost to fully implement the model without local levies is over $5 billion per year.
So the Legislature has to find a funding source to replace levies and increase overall education spending by billions of dollars. Ideas have been floated and bills introduced, but to this point there has been no political will to engage in serious bipartisan, bicameral negotiations on this huge issue.
Similarly, there is no consensus on how to limit the use of levies and change education governance. The powerful Washington Education Association, which represents teachers, is adamantly opposed to a law undermining local bargaining, but if you can’t use levies to fund basic compensation, what is there to bargain over locally?
Folks, the Court’s expectation is not simply that the Legislature appropriate a certain amount of new money to K-12, whether in 2015 or by 2018. The Supreme Court expects, in addition to those funding targets, a dedicated revenue source for K-12 and a solution to the levy issue. The Legislature might not ever be able to deliver on this expectation, not in 2015 nor by 2018.
Vance wraps up his op-ed:
The 2015 Legislature put more money into K-12, but it made no progress on these daunting structural issues and the legislators have no plan to show the court. In fact, four years after the original McCleary decision, the State of Washington still has no plan for how to create a constitutional educational funding system.
What will the state Supreme Court do? No one knows. But a common belief in Olympia is that the court must now take some sort of action, and that action will most likely result in lawmakers returning to work for a fourth special session sometime this year. A decision from the court seems likely before Labor Day.
So will the 2015 Legislature be remembered for achieving remarkable bipartisan progress on transportation and higher education, or for failing to avoid a messy constitutional showdown over education funding? Stay tuned. We’re not done yet.
Excellent analysis by Vance. But the real issue here, and one that no one seems eager to focus on . . . yet, is whether the Supreme Court is stepping beyond the constitutional limits on its authority. That’s a bigger question that I’ll take up in a later post.
NEW ORLEANS — Government lawyers labored on Friday to persuade federal appeals court judges here to allow President Obama to move ahead with sweeping initiatives to protect immigrants in the country illegally. But the judges’ questions seemed to make it ever more unlikely that the president’s programs, which he has hoped would be a central piece of his legacy, would start any time before the last months of his term, if at all.
A panel of three judges of the United States Court of Appeals for the Fifth Circuit heard arguments in a lawsuit by Texas and 25 other states challenging executive actions Mr. Obama announced in November that would give temporary reprieves from deportation to as many as four million immigrants and also permit them to work.
Police officers arrested protesters after hundreds of people staged a sit-in at an intersection to bring attention to immigration reform. Credit Edmund D. Fountain for The New York Times
But even though the judges issued no decision on Friday, it seemed highly probable that the administration would lose. By a stroke of bad luck for Mr. Obama and good fortune for the states bringing the lawsuit, two judges on Friday’s panel — Judge Jerry E. Smith and Judge Jennifer Elrod — are the same conservatives who ruled against the administration in May. Court officials said both panels had been randomly selected, well before the administration even brought its case to the Fifth Circuit.
A setback now would be decisively damaging to the president’s argument that he has full authority to carry out the vast programs nationwide and would leave the administration little choice but to take the case to the high-stakes and slow-moving deliberations of the Supreme Court and to hope for a favorable ruling before the end of its term in June of next year.
Mr. Obama has run into far deeper legal trouble than officials anticipated when they decided last year to create a program by executive action, without approval by Congress, extending deportation deferrals and work permits to millions of undocumented immigrants who are parents of American citizens or legal residents.
Judges Smith and Elrod peppered the government’s lawyer, Benjamin C. Mizer, a principal deputy assistant attorney general, with skeptical questions about his contention that the administration had ample authority to focus immigration enforcement on deporting immigrants who commit crimes or threaten national security, and to defer deportations of those who pose little risk to public safety and have families in the United States.
Referring to Homeland Security Secretary Jeh Johnson, Judge Elrod asked, with a note of incredulity, “So the secretary has boundless discretion to give work authorization to whomever he wants and it is not constrained by congressional law?”
The administration’s arguments about the president’s powers have faltered over Texas driver’s licenses. Texas has said it would be a burden to have to pay at least $130 each for driver’s licenses for as many as 500,000 unauthorized immigrants who could obtain the licenses if they received deferrals under the president’s programs. Judge Smith, in his 42-page opinion in May, agreed.
But Scott Keller, the solicitor general of Texas who argued for the states, drew concern from all three judges when he said Mr. Obama’s programs were not only a “sweeping assertion of executive power” but were breaking the law. His arguments raised complex new issues for the judges to consider this time around, probably extending the time before they rule.
The judge who sided with the administration in May, Stephen A. Higginson, was not on the panel on Friday. The third member was Carolyn D. King, nominated in 1979 by President Carter, and formerly chief judge of the Fifth Circuit. She sharply questioned Mr. Keller, the Texas lawyer.
Jurists and legal experts familiar with procedures in the Fifth Circuit court said it was coincidence — and very unusual — that the two panels hearing different phases of the immigration lawsuit included two of the same judges. Judge Smith is an outspoken conservative who has wrangled publicly with Mr. Obama over the extent of the president’s powers.
Court officials said the chief judge, Carl E. Stewart, was so concerned it might appear that the court had acted improperly to influence the immigration case that he ordered a clerk to flip a coin in the presence of witnesses to decide which of two panels scheduled to hear cases this week would handle the Texas lawsuit.
The debate in the hushed, elegant courtroom was overwhelmed several times by the sounds of drums and horns from about 600 protesters from immigrant rights groups in the street outside, including people who traveled from California, Arizona, Texas and Alabama.
A smaller group sat down in the street in front of the offices nearby of the federal Immigration and Customs Enforcement agency. A spokesman for the protesters said 14 people were arrested, but were quickly released.
“People are still getting deported every day,” said Saket Soni, the executive director of the New Orleans Workers’ Center for Racial Justice. He said the demonstrations were intended to “supply hope to the movement and signal to ICE there is much more of this coming.”
The administration has faced even more serious legal trouble with the federal district judge in the case, Andrew S. Hanen. He has chastised officials for failing to inform him that more than 100,000 deferrals with extended three-year terms had been issued under the president’s programs to young immigrants before he imposed the injunction. He ordered the government to cancel the deferrals and collect about 2,000 work cards that were also granted.
Infuriated that the administration had not collected every card, on Tuesday, Judge Hanen issued an unusually harsh rebuke, calling the officials’ conduct “unacceptable and completely unprofessional.” In an action federal judges rarely take, he ordered the secretary of Homeland Security, Mr. Johnson, to appear in person in his Brownsville court on Aug. 19 to explain why the judge should not find him in contempt.
After eight years of legal briefs and battles with the state over education funding and reform, attorney Tom Ahearne is gearing up for his next fight, taking aim at Washington’s new budget.
“This is just groundhog day all over again,” said Ahearne.
The attorney won the landmark McCleary case in 2012 when the State Supreme Court ruled that the legislature is failing to fully fund education. Justices ordered lawmakers to come up with a plan to fully fund basic education and find a stable way to pay for it, beyond relying on local levies.
“The state has not complied with the court’s order,” said Ahearne of the new budget. “The state is in contempt right now because their annual reports haven’t been doing what the state promised. This budget doesn’t do it either.”
Governor Jay Inslee and lawmakers defended the budget passed Tuesday before midnight. It includes an additional $1.3 billion for K-12 education, class size reduction for grades K-3, and a cost of living increase for teachers.
“Is there a lot more work to do? Hell yes,” said Senator Kevin Ranker (D-Orcas Island)
“While there’s a lot of people running around here claiming that we got out of here without raising taxes, guess what? We didn’t do what we had to do,” said Ranker.
Rep. Chad Magnedanz (R-Issaquah), who sits on the committee on Article IX Litigation, admitted not all requirements had been met, specifically a measure to address dependence on local levies. However, he said good progress has been made in showing the legislature’s capability to meet requirements by the 2017-2018 deadline set by the case.
According to court order, both the state and the Ahearne will file progress reports by the end of July.
The Supreme Court will then convene to consider the “adequacy of the State’s compliance and, if necessary, the imposition of contempt sanctions or other remedial measures,” according to a June court order.
If the state is found not to be in compliance, sanctions could be imposed. Although, what those sanctions could be is “the million dollar question,” according to a spokeswoman for the court.
Former Supreme Court Justice Phil Talmadge said possible sanctions could range from fine to an order that additional money be expended. However, Talmadge describes this situation as “unchartered territory.” What will happen is anyone’s guess, he said.
As the legal fight continues, Tom Ahearne said the two families at the center of the case are still waiting for change. Three of their four children have already graduated from school. Only Carter McCleary remains in high school.
“What does Stephanie McCleary think of this? They’ve filed this suit; they’ve won, but their kid isn’t getting help or funding as the constitution requires,” said Ahearne.
Many are sighing in relief after Washington’s lawmakers finished a budget preventing a shutdown of state services this month, but State Superintendent of Public Instruction Randy Dorn is not one of them.
While Republicans and Democrats took two special sessions to compromise on gas taxes and tax loopholes, Dorn told KIRO Radio’s Seattle’s Morning News that the education portion still falls short of what the state’s Supreme Court has ordered legislators to accomplish.
“I think the court is going to be in a really tough spot to say ‘yeah, you did your job,'” Dorn said Tuesday morning.
The education portion of the budget was perhaps the largest consideration this time around as the state’s Supreme Court has been leaning on the Legislature to adequately fund basic education. It is the result of what has become known as the McCleary Decision; a 2012 decision that says the state failed to fulfill its paramount duty under the constitution to “make ample provision for the education of all children residing within its borders…”
The task involves finding at least $3.5 billion to fully fund education and provide a plan to continue doing so, by 2018. Lawmakers had to show progress toward that 2018 goal each year. But last year, the Supreme Court checked in on the state’s progress and found it lacking. It placed the state in contempt of court. Justices said the state had to have better funding by April 2014; it failed to meet that deadline as well. Justices then said legislators had to find the money in the 2015 budget.
Dorn said that while a budget was passed, education was shortchanged. He said that the court asked for two things: full funding and a plan that is equitable and ample.
“They didn’t produce a plan,” Dorn said. “What they did is make local districts more dependent on local levies. You are going to have to use more of your local levies to pay for state basic [education] responsibilities because they only paid for state-funded positions and didn’t pay for the money they are shorting them for administration.”
Dorn said that if it were up to him, he would hold state legislators in contempt again.
“It’s about an equitable system and funding what is basic in an equal manner,” he said. “And local levies are set aside for extra things — not basic education things — like an extra hour, a jazz band, field trips.”
Dorn said that he estimates only 12 state legislators actually understand the McCleary Decision and therefore what they are required to do. He thinks lawmakers are due for yet another special session.
“Call them back for a special session, so all 147 legislators actually understand the issue of what McCleary is, what the court said you had to do, and what’s in the statute that the Legislature said you had to pay for,” Dorn said.
For Dorn, the issue has moved beyond education funding and is now a civil rights issue that the state is slow to resolve.
“Wealthy neighborhoods are able to fund more dollars per pupil than poor neighborhoods because they can raise more money with local levies,” he said.
“Guess who’s in the wealthy neighborhoods? White kids and Asian kids. Guess who’s in the poor neighborhoods? Poor kids and minority students,” Dorn said. “That’s an inequitable system and that’s what the court said you had to do a better job of, and we haven’t made any effort to change that.”
Great question. It’s a question that appeared in this post on PrawfsBlawg this week. Last week, a federal District Court judge in Georgia determined that ALJs at the Securities and Exchange Commission are not properly appointed. Judge Leigh Martin May, in an order on a motion for temporary injunction in Hill v. S.E.C., agreed with the arguments of Charles Hill who was accused of insider trading by the SEC. Hill argued, among other things, that Article II of the Constitution requires that “inferior officers” be appointed by the President, the Judicary, or “heads of departments”. ALJs at the SEC are, instead, appointed by a chief ALJ.
As the PrawfsBlawg post points out,
“there’s an easy fix for the SEC because the SEC is already considered a ‘department’ and has authority to appoint ALJs itself. But the opinion raises new concerns for other ALJs in the administrative state, who together hear over 250,000 cases a year. That’s because many agencies are not freestanding departments–like the Consumer Financial Protection Bureau, which operates inside of the Federal Reserve.”
So, these questions remain: will the holding in Hill stand up on appeal and, in cases involving ALJs in agencies not considered “departments”, will the Constitution be applied to require the appointment of ALJs by Article II officers (President, the Judiciary, or department heads)? Stay tuned . . .
the docket 