Quin Hillyer
Quin-essential Cases: Judges shouldn’t be tax men
By: Quin Hillyer
Examiner Columnist
March 30, 2009
Americans rightly recoil at the idea of judges imposing taxes or forcing legislatures to spend tax dollars.
So how can a federal district court order the state of Arizona to spend more of its taxpayer dollars than the state legislature desires on educational matters usually left to state discretion when the same legislature already is in full compliance with the educational standards set by Congress?
On April 20, the U.S. Supreme Court will hear oral arguments in the case of Horne v. Flores, in which the federal district court has run roughshod over the state’s elected lawmakers. The controversy involves Arizona’s “English Language Learner” (ELL) program.
In 2001, the same federal district court judge, Rayner C. Collins, had ordered the state to spend a certain amount per pupil to implement a new “English immersion” law passed in a state referendum.
Collins based his order on vague language in the 1974 Equal Education Opportunity Act requiring states to “take appropriate action to overcome language barriers,” while saying that those barriers had not been overcome – particularly in the town of Nogales.
How Collins could turn that vague requirement into a specific mandated funding level is a good question. A year later, though, his order effectively should have been made moot by the federal No Child Left Behind (NCLB) Act, which set strict standards for how to judge progress in English-as-second-language programs.
State legislative leaders argue that those accountability standards – involving testing, not dollar levels – should supersede any spending mandates imposed as temporary remedies by an unelected judge.
Moreover, their legal brief makes the following argument: “Arizona is not engaged in a continuing violation of federal law and the injunction is no longer appropriate. It is undisputed that successful structural reforms in Nogales have invigorated local school management, improved teacher quality, increased salaries, cut costs, eliminated shortages in instructional materials, reduced class sizes, and implemented monitoring programs to ensure that all students are meeting performance standards. The Arizona Legislature has more than doubled ELL funding and substantially expanded overall school funding….”
Nevertheless, the Republican-dominated legislature battled with then-Gov. Janet Napolitano, a Democrat who wanted still greater funding. After three vetoes, she eventually let the legislature’s spending levels become law without her signature – and promptly took the case to court, asking Judge Collins to rule that his injunction ordering even higher spending still was in force.
Collins ruled in favor of the governor’s position, and the U.S. 9th Circuit Court of Appeals affirmed that ruling. Legislative leaders (and others) appealed, and the Supreme Court will hear the case next month.
Napolitano has since become Secretary of the U.S. Department of Homeland Security, and was replaced as governor by Republican Jan Brewer – who presumably sides with the legislature. But the case goes on, with other of Napolitano’s original co-plaintiffs still on board.
Napolitano’s side raises numerous arguments for why a 2001 judicial injunction based on vague congressional language from 1974 should outweigh subsequent state laws that track congressional requirements also created after the judge’s 2001 ruling. An observer could be forgiven for thinking most of those arguments read like mere sophistry.
In contrast, an amicus brief by the Washington Legal Foundation, on behalf of the Arizona Legislature, gets to the heart of the matter.
“The district court’s approach, the WLF argued, “far exceeded its authority to interfere with duly enacted state legislation, and flouted the express findings of the very Congress whose earlier work it was purporting to enforce. The district court’s unbridles exercise of judicial power thus raises grave concerns not only of federalism, but also of separation of powers.”
The high court should overturn the lower courts, the WLF said, “to restore control of Arizona’s schools to its voters and to give effect to Congress’s mandate in NCLB.”
American judges are not supposed to enjoy powers to tax or spend. As was noted in Federalist 78 by Alexander Hamilton – a proponent of strong judges – “The judiciary, on the contrary, has no influence over either the sword or the purse.”
To allow Judge Collins to maintain such a control of Arizona’s purse would be an affront to the Constitution and to the entire theory of republican government.
Quin Hillyer is associate editorial page editor for The Washington Examiner.
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