Sunday, September 16, 2012

The Constitutional Challenge To Act 10 Should Stand

So far, since Friday's bomb-bursting bomb that Scott Walker's union busting measures were unconstitutional, the right's argument has been basically one of two things:
  1. The Honorable Juan Colas is a "liberal activist judge."
  2. Liberals legislate from the bench when they lose elections.
Both of these excuses, of course, or merely distractions from the fact that they just had their asses handed to them. Furthermore, it's false bravado to hide the fact that they don't have any recourse but to bloviate and hope that their corruption of the State Supreme Court is complete enough that they further shred the Constitution by acting as a rubber stamp for the Walker administration. This is why you haven't seen one right winger offer a serious argument on why Judge Colas' ruling is incorrect on the legal structures.

However, the same, fortunately, can not be said for the other side.

Professor Ed Fallone
Professor Edward Fallone, one of the most sagacious and erudite men I have had the pleasure of meeting, as well as an expert in constitutional law, has written on the subject, as I had hoped he would.

The first part of his essay on this case provides with several examples which support Judge Colas' ruling. For the lay person like me, the meat and potatoes come in the second half of his article:
There is no constitutional requirement that the state government bargain with public employee unions at all. However, once the state government decides to bargain, it may not do so under rules that penalize membership in particular unions. By arguing that Act 10 applies different treatment to public safety unions than it does to more general public employee unions, the plaintiffs have raised legitimate constitutional claims that often have been decided by the courts on very fact-specific grounds. In this regard, Judge Colas’ ruling is neither exceptional nor unprecedented.

Objections to some of the specific details contained within Act 10 could have been raised and addressed if the legislation had been introduced and considered via the normal legislative procedures. Fixing any constitutional defects during the drafting process could have been a simple matter. Instead, the bill was introduced and passed without public scrutiny or debate. This litigation once again demonstrates the truth to the adage that “haste makes waste.”

I am sympathetic to the argument that hard fought legislative accomplishments should not be undone by after the fact court challenges. Judges should presume the constitutionality of statutes, unless challengers overcome such a presumption. Such judicial deference accords finality to the actions of the legislative branch. However, complaints about litigation undoing the hard work of the legislature ring hollow when they come from an Attorney General that ostentatiously joined in the litigation seeking to overturn ObamaCare.

The conservative “noise machine”– consisting of ersatz news media, think tank “experts,” and political campaign consultants — will no doubt seek to mold public opinion in this case. They will ignore the merits of the legal claims at issue and try to convince the public that any adverse ruling is the result of one partisan judge acting without legal authority. Of course, the consequence of such a strategy is to intimidate judges who might otherwise give legal claims against the State a fair hearing, and also to steadily undermine the public’s confidence in the legal system.

Members of the State Bar should refuse to play along with this game. By all means, we should feel free to criticize the reasoning of Judge Colas’ opinion. His application of the precedent to the specific provisions of Act 10 is fair game for critical analysis. However, anyone who has been following the nationwide litigation concerning public employee bargaining rights must recognize that Judge Colas was correct to take the plaintiff’s constitutional arguments seriously.
Pretty good stuff, eh?

However, as I noted before, do not expect too much from the State Supreme Court. What with David Prosser, Mike Gableman and Annette Ziegler, there is little chance that the case will be actually judge on its legal merits, but rather solely on what their campaign donors want.


  1. Shows the level of contingency planning that our governor partakes in. He must have seen the possibility of the constitutional challenge to the law. The right's arguments against the decision by Judge Colas demonstrate that Walker's contingency plan is to personally attack the judge as activist/liberal/Dane/etc via blowing his dog whistler du jour in front of his ideological backers.

  2. You forgot the fourth little court toadie... Patience Roggensack.

    1. And Patty's up for re-election next April. Let's just say that she's being watched closely. :P

      If corporations are people, and they can form SuperPACs, and if buying loads of limited ad time is 'free,' then certainly people have a right to associate together in a workers' union. This is the main point of the decision.

      The other great point of the decision is how it re-exposes Act 10 as a 'divide and conquer' political act that was never intended to balance budgets or improve things in any way

  3. The State Supreme Court is quite busy as it is already to drop everything and suddenly take on the Colas ruling. Besides, wouldn't that look highly politically motivated to do so?
    The Court is also now considering taking on Attorney General J.B. Van Hollen's request to suddenly consolidate the two appeals judge's rulings that shot down Voter ID. That same request was made in April 2012 and denied.

    As for the right's arguments against the Colas ruling, their rhetoric is based on their right wing ideology. Within the legal profession, the right wing follows many "isms," which they themselves have contrived. U.S. Supreme Court Judge Alito is very forthright in his adherence to these isms.
    "Federalism" (a la the Federalist Society) is about the 10 Amendment and "States' Rights."
    "Originalism" makes the right wing sole deciders for what the Founding Fathers really intended.
    The right wing does not believe the Constitution (the supreme law of the land) is a living, adapting document to the times. Legislation is secondary law.
    They call their ideology "Constructivist."
    Those judges that don't follow their ideology are "Activist" judges, meaning they follow the laws of the land as they are now, reflecting on the changes that heve evolved through our U.S. history with regard to the Constitution.
    When Gableman ran for office, his whole spiel was that he was constructivist, while his opponent was activist (one who "legislates" from the bench).

  4. Republicans have been fond lately of bitching about political uncertainty damaging the business environment, yet "equal protection under the law" is the cement that holds the legal system together and prevents what would otherwise be legal chaos. Remove this protection in one instance and you open the floodgates to crippling uncertainty in every area of social activity, the rule of law replaced by the whimsical rule of petty authoritarians.

  5. The right's whole premise on passing laws like this, is that they expect ALL of the people to be as stupid and ignorant of the constitution as those who vote for them. They know not what they are being asked to do, they just do it and suffer the repercussions afterward(I was going to say consequences, but that would assume they actually ever have to face jail time).