Sunday, July 03, 2005

Clarifying a legal question

In the comments, there's been an interesting back-and-forth over what the broader consequences of the constitutional amendment in the Kansas legislature.

Right now, there's a proposed amendment as follows (PDF) with bold and italic text being added, and text with a line through it is stricken:

§ 24. Appropriations. No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law. The executive and judicial branches shall have no authority to direct the legislative branch to make any appropriation of money or to redirect the expenditure of funds appropriated by law, except as the legislative branch may provide by law or as may be required by the Constitution of the United States.
In the last day, there's been another proposal:

§ 6. Finance. (a) The legislature may levy a permanent tax for the use and benefit of state institutions of higher education and apportion among and appropriate the same to the several institutions,
which levy, apportionment and appropriation shall continue until changed by statute. Further appropriation and other provision for finance of institutions of higher education may be made by the legislature.

(b) The legislature shall make suitable provision for finance of the educational interests of the state: Provided, that the distribution of state funding shall not be precluded, and public schools shall not be closed, as a remedy for a finding that the legislature has not made suitable provision for finance of the educational interests of the state. No tuition shall be charged for attendance at any public school to pupils required by law to attend such school, except such fees or supplemental charges as may be authorized by law. The legislature may authorize the state board of regents to establish tuition, fees and charges at institutions under its supervision.

(c) No religious sect or sects shall control any part of the public educational funds.
One would bar the courts from making financial allocations, and the other would bar the court from the most effective but harmful means of enforcing its ruling.

After all our discussion, I'm still not sure that the original amendment would actually alter this case.

Right now, the court has ruled that, after the legislature established a definition of "suitable education" it failed to fund education at a level that its own study showed was necessary. The court didn't make its number up, it looked at the legislative record, and ruled that the legislature ignored its own determination about how much money was necessary to fulfill its constitutional obligation.

One could easily claim that the court didn't order an appropriation, it ordered that the legislature fund its own study. That's narrow and legalistic, but this is a narrow and legal ruling.

The honest amendment would be for the conservatives to simply amend the constitution as follows:
The legislature shall make suitable provision for finance of the educational interests of the state.
Let them endorse unsuitable funding, and ask the people to go along with it.

A broader question: can a constitutional provision be excluded from judicial review? Can anyone think of an example? How does Marbury v. Madison operate in that question? Does that create a federal Constitutional obligation to allow judicial review of legislative actions? Can that review be prohibited?