Sunday, May. 10, 2009

Scoppe: The case of the court and the incorrigible child (Legislature)

IT’S EASY TO understand why the Supreme Court would be frustrated by the General Assembly.

The court keeps telling the Legislature it must obey the “single subject” rule in the state constitution, which prohibits stringing unrelated measures together in a single bill — a practice known locally as “bobtailing” and known the world over as a way to defy majority rule by passing laws that never could make it on their own, to shut the public out of the lawmaking process and even to hide corruption.

The Legislature, like an incorrigible child who keeps biting his baby sister no matter how many times Mom says “no,” just keeps ignoring the court. Spectacularly.

The court’s 2008 annual anti-bobtailing ruling had been out just hours — it was literally being passed around on the floor of the House; parts of it were even read from the lectern — the day the House overrode Gov. Mark Sanford’s veto of the bill that the court struck down Monday. (Mr. Sanford had vetoed the bill primarily because it was unconstitutional.)

There’s nothing new about the Legislature ignoring the clear words of the state constitution — even when the meaning has been unambiguously explained by the high court. It’s been doing this for years, on the single-subject rule, on the local-legislation prohibition and on too many other matters to name. Lawmakers know how to game the system. They rely on a combination of the old ask forgiveness rather than permission routine and the odds that they will get away with it because nobody will bother to sue.

In the case of bobtailing, even if a suit is filed, it’s no biggie to most lawmakers, because the court will preserve the main part of the legislation and just toss out the really over-the-top parts — the parts most of them didn’t want to begin with, but allowed into the bill in order to get the parts they did want passed.

Any doubts about that strategy evaporated last summer, when the Legislature (which is to say, the leaders in the House and Senate) conceded in court papers that the energy-efficient-appliance-tax-holiday/gun-tax-holiday/gas-without-ethanol-splash-blending bill was unconstitutional, and asked the court to strike down the splash-blending portion and preserve the other two parts, which they contended did relate to the “single subject” of sales tax holidays.

Who knows but that this step is what took the high court over the top. (“Yes, Mommy, I know I bit my little sister again after you told me not to, several times, but I also know you won’t really spank me, so let’s just get the ‘no-dessert-tonight’ punishment out of the way, so I can do it again.”)

On Monday, the exasperated court changed the rules. Drew a line in the sand — a “bright-line” rule, in the court’s parlance: From now on, it will no longer “excise an ‘offending provision’” from a bill that violates the single-subject rule. The idea that it can do that “is inherently flawed since all provisions in an act which does not address (merely) one subject are ‘offending’ provisions.”

Since no one but the Legislature can know for sure which part of a bill would have passed if the parts had been considered on their own rather than attached to each other, the court would “usurp the prerogative of the General Assembly and thus act as a super-legislature” if it attempted to make that decision itself. This is the argument Justice Costa Pleicones made in objecting to the earlier anti-bobtailing rulings; this time he wrote for the majority — and not just any majority, but a unanimous court.

It would be difficult to overstate how extraordinary this decision is.

The Supreme Court, like responsible (i.e., non-activist) courts across the country, has always given the General Assembly a wide berth. Its chief rule has been a sort of legislative presumption of innocence: that a law is constitutional until proven otherwise. That a tie goes to the Legislature. That if there is any way to salvage even part of a law that is constitutionally defective, it must do so.

So when the court first revived the single-subject rule in 2005, it tossed out seven sections of the Life Sciences Act but preserved the 14 sections that Attorney General Henry McMaster had argued were the “core” of the bill, to which all the extraneous material had been glommed on. It did the same thing last year, tossing out just two of the 69 sections in the Legislature’s annual cram-every-little-tax-give-away-goodie-we-can-think-of-into-one-bill bill.

This year’s ruling wouldn’t be a huge departure if the court had simply done what it did — tossed out the entire bill — and explained that in this case, it was impossible to tell which part was healthy chicken and which was rotten egg. It could have done the same in the next case as well, and eventually the Legislature would have smartened up and figured out that there was an unannounced bright-line test.

But by announcing this new bright-line test, the understandably weary court has, as one constitutional law expert told me, very nearly gone on strike. It has declared that it will no longer try to ferret out and preserve constitutional sections of unconstitutional enactments. Which some would argue is its job.

Of course, this isn’t exactly what you’d call a constitutional crisis. After all, the Legislature has it wholly within its power to prevent the court from striking down any more “good” parts of bad bills: All it has to do is comply with the constitution, and there won’t be any bad bills.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.

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