By: Mark Glennon*
An Illinois judge last week barred a lawsuit which would have asserted that the state unconstitutionally issued two sets of bonds.
Prior to the ruling, a Chicago Tribune editorial said the case deserves close examination on the merits and should be allowed to proceed. Killing the case, the Tribune said, “would reinforce the impression that Illinois public officials are beyond challenge.”
Little did the Tribune know that the judge would openly say just that — never mind the constitution, public officials are beyond challenge.
Among the reasons the lawsuit cannot proceed, according to Judge Jack D. Davis II, is that it “asks this court to address a non-justiciable political question and substitute its judgement for the Illinois Legislature some two decades after it occurred.”
First, Judge Davis was flat out dishonest saying this is “two decades” after the legislature acted. The two sets of bonds challenged were authorized by the legislature and issued in 2003 and 2017, and it’s the two-year old bonds that are more constitutionally questionable. I can think of no judicial opinion or ruling ever where a judge so brazenly twisted the facts.
Far more important, however, Davis seems unaware of the bedrock principle in American law – that courts have the power and duty to invalidate laws that conflict with the federal constitution or their state’s constitution. It’s not a court’s place to “substitute its judgement” for the legislature’s, he says.
Marbury vs Madison established in 1803 that courts should invalidate laws that violate the constitution. That’s a central tenet of separation of powers. Since then, federal and state courts have invalidated hundreds of statutes and administrative actions as unconstitutional. Illinois and all other states routinely do the same, testing their statutes against their state constitutions. Judge Davis, however, might as well have written, “Politicians decided to do this so it must be permitted.”
This is not to say how the case should ultimately have come out if it were allowed to proceed. We’ve said from the start that it would be difficult to win, for both legal and political reasons. Judge Davis did discuss in his ruling the central issue about whether the bonds were issued for a “specific purpose,” and he said they were.
But now, that and other matters won’t even be properly heard. Unless the ruling is overturned on appeal, a lawsuit is prohibited.
Judge Davis ignored, among other things, the most interesting aspect of the case, which warrants a full, reasoned opinion. That’s the relevance of the balanced budget requirement in our state constitution, and it’s especially pertinent to the 2017 bonds. They were used simply to pay down part of Illinois’ huge bill backlog.
That backlog obviously results from budgets that weren’t balanced. That means the bonds merely paid for current operating expenses, in substitution for a genuinely balanced budget. Borrowing to pay for current operating expenses is fiscal suicide. Davis’ ruling effectively means the balanced budget requirement has no meaning whatsoever. But a basic rule of constitutional interpretation is that all provisions must be afforded at least some rational meaning.
Perhaps Judge Davis was also trying to invoke what’s known as the political question doctrine when, in the portion of the ruling quoted above, he said the case involved a non-justiciable political question.
But no judge should think questions about constitutionality can be ducked merely by saying those words, which is all Davis did. The political question doctrine is used rarely. The United States Supreme Court narrowed it severely in 2012. The entire concept is facing harsh and growing criticism. If used at all in this case, it should only have been after being argued and tried properly, with the decision laid out in a full opinion.
The state, taxpayers and the municipal bond community all would have benefited had this case been allowed to proceed, been fully heard and a reasoned, complete opinion published. That way we’d all know what if any meaning the Illinois Constitution’s debt limitations and balanced budget provisions have.
When we first wrote about this case we said it would be a teaching moment, that an education was at hand. That’s what we got. The lesson is that, in Illinois, Marbury vs. Madison be damned.
*Mark Glennon is founder of Wirepoints.*