School Choice: Alabama Judge’s Judicial Tyranny

In the ongoing battle between liberal teachers’ unions on the one hand and advocates of public school reform on the other, an Alabama judge has stepped in to prevent the Alabama Governor from signing legislation that was passed (along party lines) by the Alabama House 51-26 and the Senate 22-11. Of course, I don’t need to tell you which party voted for the bill and which party vociferously opposed it.

But, in a move that would be both rare and itself suspect of constitutional authority, Alabama Circuit Judge Charles Price blocked Governor Robert Bentley from even signing the bill into law. I’m sure that some judge somewhere has exercised this authority to prevent a bill from becoming law, but this is a prime example of judicial activism, presumably by a liberal jurist sympathetic to the Alabama Education Association.

Since Marbury vs. Madison was decided by the U.S. Supreme Court in 1803, it has been a well-established legal principle that the Judicial Branch of Government has the constitutional authority to review all laws once enacted. That principle has been applied at both the state and federal levels. A key component of judicial review is that a bill actually become law. In Alabama, as in other states and the federal government, the only way (at least as of now) for a bill to be enacted is when it is passed by both legislative chambers and then either signed into law or become law if the legislative branch overrides an Executive Branch veto.

In the case of the Alabama Education Bill, that process has been short-circuited by Judge Price. In preventing Alabama’s Governor from signing the bill into law, it would appear that a rogue judge has usurped his constitutional authority by taking Marbury step further. How one views the underlying legislation typically affects how one views Judge Price’s decision. Republicans are naturally up-in-arms about what they view as judicial overreach:

Senate Pro Tem Del Marsh called the ruling “judicial activism at its worst” and vowed to take the matter to the state Supreme Court in order to lift the injunction. “These stalling tactics are a sham by the same special interest elite that have held our state back for far too long.” (here)

Democrats in Alabama, who apparently oppose any common-sense reform of the public education system, were quite delighted with the Judge’s actions:

Democrat Sen. Quinton Ross had a different take. “The judge stood for the integrity of the Legislature and the legislative process.” (here)

With all due respect to both Judge Price and Sen. Ross, the actions taken by the Alabama jurist violated not only the integrity of the legislative process, but more importantly, violated the integrity of the judicial process. Would Senator Ross have had the same reaction if the roles were reversed and a Judge blocked a Democratic Governor from even signing a piece of legislation passed by a Democrat-controlled House and Senate?

Once the law was passed and signed by the Governor, it would have been appropriate for an individual or group (AEA) to file a lawsuit seeking to enjoin (i.e., stop) the law from going into effect. At that point, Judge Price would have been within his constitutional authority to issue a temporary injunction and schedule a hearing at a later date to determine whether or not the law was constitutional.

How should Gov. Bentley respond to this unconstitutional power play by Judge Price? As part of a co-equal branch of government, he should respectfully tell the Judge that he has no authority to bar him from exercising his own constitutional rights as Chief Executive of Alabama and then he should sign the bill into law. The Judiciary — whether federal or state — should have absolutely no power to prohibit the Executive from signing legislation that has been sent to his or her desk. If that happens, then Thomas Jefferson’s fears about judicial tyranny will be far more real than he could have ever imagined:

You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves. …. — Thomas Jefferson, Letter to Mr. Jarvis, Sept, 1820 (here)

The post School Choice: Alabama Judge’s Judicial Tyranny appeared first on From Law to Grace.