Farce has been standard fare in litigation over school choice since the Supreme Court’s 2002 decision in Zelman v. Simmons-Harris upholding the constitutionality of vouchers. At the time of Zelman, chief counsel for the National Education Association (NEA) said the organization would rely on what he called “Mickey-Mouse provisions” in state constitutions to attack choice programs. No claim was too ridiculous. But farce doesn’t seem to capture what happened last week in Alabama.
Two weeks ago the Alabama House and Senate passed legislation, the Alabama Accountability Act, giving parents with children in failing schools a tax credit for tuition at a private school. The bill passed by 2–1 margins in both houses of the Republican controlled legislature. Initially the act was called the School Flexibility Act and did not include tax credits. After the House and Senate passed different versions of the act, the conference committee added the tax-credit provision and changed the name. The restructured and renamed legislation then passed 51–26 in the House and 22–11 in the Senate on party-line votes.
Naturally, organizations such as the Alabama Education Association (AEA), opposed as they are to letting students escape miserably failing schools, howled that the measure violated state law. But this time, rather than at least having the decency to sue after the legislation became law, the AEA asked a state judge to enjoin the governor from signing it—claiming that the conference committee violated the state’s Open Meetings Act when it inserted the tax credit with insufficient deliberation. The judicial gods smiled on the AEA when the case went before circuit judge Charles Price. Price had previously achieved momentary fame for declaring that a fellow circuit-court judge could not display the Ten Commandments in his courtroom or begin sessions with prayer. After a brief hearing, Price agreed with the AEA ruling that the state legislature could not send the bill to the governor and scheduled a hearing for mid-March over whether the legislature violated the Open Access Act. The state attorney general has appealed to the state supreme court.
The litigation raises two basic questions about separation of powers. The first is whether the courts have the authority to oversee the procedures that the legislature establishes for itself. Typically courts have ruled that as a matter of separation of powers, they are not allowed to exercise this kind of oversight. But even if the Alabama courts were to intrude into the internal workings of the state legislature, it should be a question raised only after a bill has actually become law. After all, until a bill has been signed, no one can claim to have been harmed and, therefore, no one has standing.
The second, more significant question is whether the courts have the authority to actually stop a legislature from sending a bill to the governor to be signed. Passing a bill and sending it to the governor to be signed (or vetoed) are obviously exercises of legislative power. Legislative power is not granted to courts. That’s why they are courts and not legislatures. By definition, under a system of separation of powers, courts cannot have such power.
Of course, Price’s actions do raise some humorous possibilities. What if the legislature were to send the legislation to the governor anyway? Would Price dispatch marshals to block thoroughfares between the statehouse and the governor’s office? Would he send marshals to confiscate all the governor’s pens?
Regardless of these amusing possibilities, it is unlikely that the Alabama Supreme Court will side with Price’s brazenly unconstitutional power grab. All eight members of the court are Republicans. Oh, and the state’s chief justice is the infamous Roy Moore, the same judge Price said violated the Constitution by displaying the Ten Commandments. All of which means that the AEA and other Alabama choice opponents had better pray for a miracle, or prepare for the country’s newest tax-credit program to become law.
— Joshua Dunn is an associate professor of political science at the University of Colorado–Colorado Springs and co-author of Education Next’s Legal Beat column.