Thursday, July 10, 2003

Court to Constitution: Drop dead

In a jaw-dropping, 6-1 decision, the Nevada Supreme Court ruled the constitutional amendment requiring a two-thirds majority vote by the Legislature for any state tax increase meaningless. (Read the opinion here.) The court said the Gibbons Tax Restraint Initiative "is a procedural requirement" less important than the "substantive constitutional law" mandating that the Legislature fund education. The Legislature can now pass a tax increase by simple majority vote.

Think about it. The voters use their duly authorized right to amend the state constitution by referendum only to be told by a handful of black-robed tyrants that their votes mean nothing. As an aside, the court followed the "reasoning" (if you can call it that) of the teachers' union, swallowing their argument that the 2/3 requirement made the whole job of governing "inconvenient." (That amicus brief is here.)

The Legislature will go back to work next week. And the question is: How high will the tax-hikers go? They had a deal to pass $870 million in new taxes ... will they double the ante?

Volokh on the crisis

After e-mailing Eugene Volokh, he responed with this insightful (natch) post, calling the ruling "shameful":

Finally, if the court is willing to nullify "general procedural rules" so that it can order the legislature to fund education, why stop at the 2/3 supermajority? What if it turns out that the Legislature can't even get a simple majority for a tax increase? Under the court's reasoning, it should nullify the 50%+1 requirement, too -- after all, the simple majority requirement is also a mere "procedural requirement that is general in nature." Or, better yet, why not order the governor impose the taxes himself? The requirement that taxes be imposed by elected legislators is also just a "procedural requirement that is general in nature." But wait -- that would be inefficient. Why doesn't the court just impose the taxes itself, and order government officials to just seize the property from Nevadans' bank accounts? The only thing that stops it is also a "procedural requirement that is general in nature," and apparently those aren't really binding any more.



Actually, the court didn't adopt the teachers' union arguments verbatim, because the union claimed that the Gibbons initiative should be declared unconstitutional. The court didn't have the balls to do that; instead, it danced around the issue, saying the 2/3 rule was "inconvenient." This makes even more a mockery of the notion of the rule of law, hinting that any "procedural" provision in the state's governing document is ripe for ignoring if you can convince a gang of judges to do so.

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