Tag: constitutionality

Win for School Choice in Georgia

Lost in all the commotion over the U.S. Supreme Court’s several decisions today is another important decision with ramifications for school choice. The Georgia Supreme Court unanimously ruled in Gaddy v. Georgia Department of Revenue that plaintiffs had no standing to challenge the state’s tax-credit scholarship program because the scholarship funds are private funds, not a government expenditure:

We also reject the assertion that plaintiffs have standing because these tax credits actually amount to unconstitutional expenditures of tax revenues or public funds. The statutes that govern the Program demonstrate that only private funds, and not public revenue, are used.

The program allows donors to receive tax credits in return for contributions to qualified nonprofit scholarship organizations that help families send their children to the schools of their choice. Plaintiffs asserted that the program violated Georgia’s Blaine Amendment, which prohibits the state from giving public funds to religious schools. However, as we explained in our amicus brief, no public funds are involved. “Taxpayers choose to donate voluntarily using their own private funds and receive a tax credit for the amount of the donation; no money ever enters or leaves the treasury.” Neither does the state direct where the funds are used. “The state exercises no control over which scholarship organizations donors choose to support, which students receive scholarships, or at which schools parents choose to use the scholarships.” The Georgia Supreme Court agreed:

Individuals and corporations chose the [scholarship organizations] to which they wish to direct contributions; these private [scholarship organizations] select the student recipients of the scholarships they award; and the students and their parents decide whether to use their scholarships at religious or other private schools. The State controls none of these decisions. Nor does it control the contributed funds or the educational entities that ultimately receive the funds.

“Today’s victory has secured Georgia parents’ right to continue choosing the best education for their children,” stated Erica Smith, an attorney for the Institute for Justice, which represented scholarship parents in the Gaddy case. “This Court correctly recognized that government should promote educational opportunity and choice, not limit it as the plaintiffs proposed.” 

Colorado Supreme Court Strikes Down School Vouchers

Earlier today, the Colorado Supreme Court ruled that Douglas County’s school voucher program violates the state constitution. 

The Douglas County Board of Education unanimously voted to enact the Choice Scholarship Pilot (CSP) Program in 2011, making it the first district-level school voucher program in the nation. The program granted 500 school vouchers worth up to 75 percent of the district schools’ per-pupil revenue, which was approximately $6,100 in the last academic year. Students could use the $4,575 vouchers at the private school of their choice and the district retained the remaining 25 percent of the funding ($1,525 per voucher student).

However, the ACLU, Americans United for Separation of Church and State, and several local organizations that wanted to protect district schools from competition filed a legal challenge almost immediately. Although they won an injunction from a trial court, it was later overturned on appeal in 2013. Plaintiffs then appealed to the state supreme court.

In a narrow 4-3 decision*, the Colorado Supreme Court held that the voucher law ran afoul of the state constitution’s historically anti-Catholic Blaine Amendment, which says:

Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever…

The court held that “aiding religious schools is exactly what the CSP does.” Even though “CSP does not explicitly funnel money directly religious schools, instead providing financial aid to student,” the court ruled that the Blaine Amendment’s prohibitions “are not limited to direct funding.”

Why Tax Credits Survive Legal Challenges But Vouchers Often Don’t

Yesterday, on the same day that the New Hampshire Supreme Court rejected a challenge to the state’s scholarship tax credit law, a district court judge struck down Oklahoma’s special-needs voucher law.

Both vouchers and scholarship tax credit laws are constitutional under the U.S. Constitution, but vouchers laws have often run afoul of states’ historically anti-Catholic Blaine Amendments, which prohibit public funds from being expended at religiously affiliated schools. By contrast, scholarship tax credit laws have a perfect record at both the federal and state courts because they rely on voluntary, private donations. Donors to nonprofit scholarship organizations receive tax credits worth 50 percent to 100 percent of their donation, depending on the state. In ACSTO v. Winn, the U.S. Supreme Court held tax credit funds did not constitute public money because they had not “come into the tax collector’s hands.” These credits are constitutionally no different than tax deductions for charitable donations to nonprofits (including religious organizations) or the 100 percent property tax exemption granted to houses of worship. In none of those cases do we say that the nonprofit or religious institution is “publicly funded.” 

Yesterday’s decision is heartbreaking for the hundreds of Okie children with special needs who use the vouchers to attend the schools of their parents’ choice. If Oklahoma policymakers want to help those children, they will follow the legal advice of the Institute for Justice and enact a special-needs scholarship tax credit or expand their existing tax credit law.

For more on the the New Hampshire decision, listen to this Cato Daily Podcast with the Institute for Justice’s Dick Komer, who argued the case before the state Supreme Court.

You Could Have Read It Here First

If you’ve been reading Cato at Liberty and www.cato.org, then you already know, as the lead story in the Washington Post reported this morning, that both the constitutionality and the necessity of the NSA’s massive surveillance are in doubt:

From the moment the government’s massive database of citizens’ call records was exposed this year, U.S. officials have clung to two main lines of defense: The secret surveillance program was constitutional and critical to keeping the nation safe.

But six months into the controversy triggered by former NSA contractor Edward Snowden, the viability of those claims is no longer clear.

In a three-day span, those rationales were upended by a federal judge who declared that the program was probably unconstitutional and the release of a report by a White House panel utterly unconvinced that stockpiling such data had played any meaningful role in preventing terrorist attacks.

Randy Barnett and the Health Care Overhaul

Cato senior fellow Randy Barnett is featured on the front page of today’s New York Times as the chief academic critic of the constitutionality of the 2010 health care law. He spoke at Cato on that topic last Friday; video here.

The article notes his longstanding interest in the Ninth Amendment, the subject of his book published by Cato and the George Mason University Press in 1989, The Rights Retained by the People: The History and Meaning of the Ninth Amendment.

Professor Barnett also cooperated with Cato on his most recent book, Restoring the Lost Constitution: The Presumption of Liberty.

Arizona Immigration Decision Underlines Need for Fundamental Reform

The legal battle over SB 1070 is far from over, so neither side should cheer or despair. The upshot of the Ninth Circuit’s splintered and highly technical opinion is merely that the district court did not abuse its discretion in enjoining four provisions. The court could not and did not rule on the legislation’s ultimate constitutionality and, of course, SB 1070’s remaining provisions—the ten that weren’t challenged and the two on which Judge Bolton rejected the government’s argument—remain in effect.

But the legal machinations are only half the story. While I personally think that all or almost all of the Arizona law is constitutional, at least as written (abuses in application are always possible), it’s bad policy because it harms the state’s economy and misallocates law enforcement resources. But I also understand the frustration of many state governments, whose citizens are demanding relief from a broken immigration system that Congress has repeatedly failed to fix. Whether it’s stronger enforcement (Arizona) or liberalizing work permits (Utah), states should not be forced into the position of having to enact their own piecemeal immigration solutions while living within a system where the regulation of immigration is a federal responsibility. Congress has dropped the ball in not passing comprehensive immigration reform, despite facing a system that doesn’t work for anyone: not big business or small business, not rich Americans or poor ones, not skilled would-be immigrants or unskilled.

The federalism our Constitution establishes sometimes demands that the federal government act on certain issues. This is such a time and immigration is such an issue.

Cite the Constitutional Authority or the Lack Thereof!

A new House rule requires that every new bill or joint resolution introduced in the House include a statement citing the specific powers in the Constitution granted to Congress to enact the proposed law.  In the absence of such a statement, the clerk of the House will not accept the bill and it will be returned to the sponsor.

This new rule may have two potentially valuable effects:

  • For some time, this rule may have a valuable educational effect, reminding new House members, returning members, and the public that Article 1, Section 8 of the Constitution authorizes only 18 federal powers – far fewer than the powers that the federal government has assumed, especially during the past 75 years.
  • The constitutional citations for House bills that are approved would be part of the legislative record that the Supreme Court may consider in subsequent litigation bearing on the constitutionality of Acts of Congress.

This rule, however, is also likely to have two potentially negative effects:

  • This rule, by limiting new legislation to federal activities for which there is express or implied authority in the Constitution, would severely limit the potential of Congress to exercise legislative authority over the many current federal  activities for which there is no such authority.
  • In the absence of  authority in the Constitution for many types of current federal activities or others that Congress may wish to approve, Congress – like the Supreme Court – is likely to rationalize their judgments by elastic interpretations of the general welfare clause, the interstate commerce clause, or the necessary and proper clause.

An alternative interpretation of this new rule, however, would maintain its potentially valuable effects, maintain the potential for Congress to exercise legislative authority over federal activities for which there is no authority in the Constitution, and avoid the equivocation that is characteristic of statements about the powers of the federal government for which there is no authority in the Constitution: A new bill should be cleared for a vote when accompanied by a statement that identifies either the constitutional authority for the federal activities addressed by the bill or the lack thereof.  In the latter case, a statement such as the following should be sufficient for the House clerk to clear a bill for a vote:

There is no authority in the Constitution for the federal activities addressed by this bill.  For such time as any relevant constitutional issues are not resolved and the measures addressed by this bill remain in force as positive law,  we accept the responsibility to assure that this activity is administered efficiently and fairly and to propose changes that would better serve the American people.

This alternative interpretation of the new rule would increase the opportunity for members of Congress to express their views about the constitutional issues bearing on the powers of the federal government but would maintain their potential to legislate.  It is important to maintain an effective separation of powers within the federal government.  Congress does not have an impressive record as a legislature, but it would be a lousy constitutional court.