WHEN Charleston County senators tried this spring to repeal an almost-certainly unconstitutional law that puts legislators on the county aviation authority, Rep. Chip Limehouse blocked the measure. He argued that the Legislature shouldn’t act but instead should let the courts “decide if this is unconstitutional.”
I don’t recall hearing anyone else say anything so farcical about their own wasteful and irresponsible assault on the constitution they swear an oath to protect and defend, but Mr. Limehouse’s so-sue-me approach is becoming commonplace around the State House. And we’re picking up the tab.
Consider:• Tea party Republicans in the Legislature spent the entire 2013 session fixating over their Obamacare “nullification” bill, which at best does nothing but make our state look ridiculous and at worst actually makes it illegal for businesses to obey federal law. Either way, even supporters acknowledge that the bill is a lawsuit waiting to happen, but Sen. Kevin Bryant spoke for his fellow nullifiers when he told The State’s Adam Beam that “it is worth the risk to see if we can protect our state from this far-reaching federal legislation.” Which, as any first-year law-school student knows, won’t happen.
• Legislators passed a law two years ago requiring voters to present a state-approved photo ID despite warnings that it violated federal law, and the state took the federal government to court when the Justice Department refused to allow the law to take effect.
Supporters of that law argue that the $3.5 million we ended up paying was worth the price because we won in court. And we did — technically. After Attorney General Alan Wilson essentially rewrote the law on the witness stand to take out the problematic parts.
The result was that federal judges allowed our state to enforce a law that in no way resembles the one the Legislature passed, or that Gov. Nikki Haley bragged about to last year’s Republican National Convention, and continues to refer to. A Wilson-rewritten law that, had the Legislature passed this instead, almost certainly would have been allowed to take effect without our paying $3.4 million to a high-priced Washington attorney.
Although the governor and her co-conspirators clearly received bad legal advice, good advice was available in abundance in the days and weeks after the vote. Instead of heeding it, they tried to turn a clear-cut constitutional question into a debate about policy.
It was painfully clear to anyone who has read the state Supreme Court’s recent cases that the board violated the separation-of-powers doctrine, which reserves to the Legislature the power to appropriate money, and of course that’s what the Supreme Court ruled. Unanimously. At a cost to taxpayers of a mere $100,000.• And of course this year’s lawsuit-of-the-summer was launched after Gov. Haley vetoed funding for the state’s certificate of need program, the House sustained the veto and DHEC Director Catherine Templeton announced that, with the funding gone to enforce the law, she was suspending the statutory requirements attached to it. Which raises all sorts of statutory and constitutional issues that will be addressed in either a preemptive lawsuit that Ms. Templeton filed, with the help of outside (read: more extra spending) counsel, or a lawsuit filed by hospitals and nursing homes (which you can bet will be defended with the help of outside counsel), or both. Eventually.
The costly acts of unconstitutionality tend to be the doings of Republicans, because they’re the ones in charge of the Legislature, and therefore the ones whose unconstitutional bills pass. And they’re the ones who occupy executive offices from which they can violate the constitutions
But given the chance, Democrats are equally happy to act unconstitutionally. That chance comes mostly when Democratic legislators in Democratic-majority counties pass unconstitutional single-county bills, because legislators from other counties generally allow local lawmakers to have their way back home.
And just like the Republicans defending their lawlessness, the Democrats insist upon their innocence with a straight face, as House Democratic Leader Todd Rutherford did this spring in explaining a bill that allowed Columbia firefighters to act as “certified law enforcement officers” when conducting arson investigations. However reasonable that may be, it’s a pretty clear violation of the constitutional prohibition on special legislation, but Mr. Rutherford insisted there was no problem as long as the entire House and Senate voted on it and not just Richland legislators.
Let us be generous and assume he misread, or misremembered, the Supreme Court opinion that said laws are void unless a quorum of the entire House and Senate votes on them. That ruling did not say that a vote by the full Legislature renders an unconstitutional bill constitutional. It said that the absence of such a vote renders a constitutional bill unconstitutional. In that case, the law that became unconstitutional because only local legislators voted on it did not deal with a single county or city, which the constitution clearly prohibits, but with a single school district, which the court, like the constitution, has always allowed.
When Mr. Rutherford’s legal razzle-dazzle didn’t convince his colleagues, he played the local-law trump card, reminding representatives the Legislature has passed other such bills, and warning them that if they messed with his local bill, there’d be payback. And so the bill passed, the governor appropriately vetoed it, and we can assume that when the Legislature returns to work in January, it will override the veto.
Of course, unlike the Republicans who are squandering our tax money on lawsuit-inducing legislation, the Democrats haven’t built their careers around demanding cuts in taxes and spending. More importantly, the Democrats’ unconstitutional single-county laws (like the Republicans’ unconstitutional single-county laws) don’t usually cost taxpayers any money. That’s because our Supreme Court is very protective of the legislative process, and rarely allows lawsuits to proceed against single-county and other special legislation.
From a financial standpoint (and only from a financial standpoint), that’s good news, since passing these unconstitutional laws isn’t just an occasional hobby for our legislators. It’s a full-time job.
Ms. Scoppe can be reached at firstname.lastname@example.org or at (803) 771-8571. Follow her on Twitter @CindiScoppe.