Reform rightly rolls on even if political reasoning prevails

The recent ruling on injunctive relief sought by education reform opponents from a new Louisiana law’s implementation seems more timed to political considerations than rooted in law, even as its opponents’ arguments appear meritless, in order to store reserves of political capital.

On Aug. 1, the first distribution of public funds as part of reforms that permit families below certain incomes with children attending subpar public school to use these to pay for education at a private school outside of Orleans Parish will commence (a similar program already has operated in Orleans for a few years). Opponents filed suit weeks ago on the bases that this violated the Constitution by sending money through the Minimum Foundation Program for what is not done by public schools and that the instrument authorizing this did not have enough votes to pass in the House.

The matter was taken up by 19^th District Judge Tim Kelley, with it defended by a contract lawyer for the state Jimmy Faircloth. It was almost a reunion of sorts: Kelley is the husband of the first commissioner of administration for Gov. Bobby Jindal, Angelé Davis who two years ago returned to the private sector, while Faircloth was Jindal’s executive counsel during some of that time (Kelley, like all judges in the state, was elected to office). In the hearing, Kelley washed his hands of the matter, accepting Faircloth’s argument that the law states that state courts cannot enjoin administrative actions that would promote deficit spending, which would occur having to pay out the scholarship vouchers yet being unable to tap the MFP to do it if enjoined.

Faircloth was referring to R.S. 13:4062 that reads in part courts cannot intervene “in any suit involving the expenditure of public funds under any statute or law” if an officer swears the deficit would occur as a result. But the instrument that actually apportions the money, SCR 99, is neither a law nor statute (a law is a collection of one or more sections addressing one or more statutes). It’s a resolution, distinguished from a law in that it does not require a gubernatorial signature as it gives force to an exercise of legislative power.

Kelley apparently brushes the technicality aside when he wrote that he couldn’t really tell if there was a difference between the instrument being a bill or a resolution. If so, he must be the only one because it clearly is a resolution and that kind of instrument clearly differs from a law in how it is enacted and in its purpose. Now, one could argue logically that resolutions are covered in this case because the Legislature was exercising authority under the law in the matter of funding public education, buttressed by the fact that the suit actually is trying to invalidate the enabling law Act 2, but neither Faircloth nor Kelley took that route, perhaps because that opens up a larger legal question that, from Faircloth’s perspective, might have increased the chances of the injunction being issued.

In fact, the state could have attempted a motion to toss the whole case, as neither the funding argument nor the minimum vote passage argument has merit. But this might not have been scheduled immediately and the request for injunctive relief already was on the table, and, politically speaking, the optimal course of action for reform supporters was to continue with the law’s implementation.

This follows the strategy of Pres. Barack Obama and (solely) Democratic congressional supporters of changes to financing and delivery of health care in the country. Even though solid majorities of the public consistently have opposed the new misnamed Patient Protection and Affordable Care Act and would urge what increasingly looks to be a Republican congressional majority and president next year to repeal its extensive most noxious parts, that two years of implementation will have passed with that chance to build up inertia against repeal leads supporters to hope it will have become too ingrained to alter significantly.

By not addressing the merits of the case at this time, it drags the process out further, allowing for implementation to proceed longer. Yet why should Faircloth choose the route of most delay, instead of finishing it off as quickly as possible? Because while constitutionally the law is on solid ground, the political ground could shift with the public.

Support for the vouchers has been middling. One survey just before the issue faced great debate in the Legislature found public opinion split evenly between those for and against them. The short period of implementation to date has not gone entirely smoothly. No doubt other bumps in the road will appear as a natural consequence of the process, and opponents will trumpet these as much as possible to be interpreted as indicators of the unsuitability of the entire program.

By keeping opponents involved in a judicial process, it serves to keep them from pursuing the legislative process of repeal, trying to capitalize on disgruntlements that might arise while simultaneously reducing potential disgruntlement by showing a program that works as it is intended, which takes time. The strategy of delaying a court decision – which could take many months depending upon appeals – strengthens eventual public support of a far-reaching measure that had only relatively narrow policy-maker support at its birth, as well as gives opponents opportunities to sabotage their own support. And this Wednesday’s funds distribution pours a lot of concrete into shoring it up from attacks by opponents.

As a result, while the argument made that lay at the basis of the decision not to grant relief was questionable, the impact of the decision was correct on its legal merits – the law is proper and implementation needs to move forward. It took its convoluted path because of a search for political capital to strengthen its chances of survival in the political arena.