What’s a fella to do?

This is one of those situations that might be beyond the understanding of a layman. But on the surface it seems that one person’s “constitutional crisis” is another person’s “constitutional oath.”

The legislature sent Governor Nixon a school funding bill the other day. He signed it but opined that one provision, in his view, is unconstitutional and his administration therefore will ignore it. The bill makes a special provision for funding about 150 school districts. Nixon argues the bill is unconstitutional because it requires the state lower education department to ignore certain provisions in existing law.

Senate gadfly *Jason Crowell challenges the Governor’s action, noting determinations of the constitutionality of legislative acts rests with the judicial branch of the government, not the executive. He has asked Attorney General Chris Koster, who once was a member of Crowell’s party but is now a member of Nixon’s party, to take all steps necessary to keep Nixon from violating the constitutional separation of powers. In Crowell’s eyes, the Governor’s action is “a constitutional crisis of epic proportions.” He is not disagreeing with Nixon’s claim that part of the bill, or part of it, might be unconstitutional. He’s just saying Nixon has no right to make that ruling and therefore relieve his administration from following its provisions. He’s offered several pages of previous court rulings to support his idea.

Crowell did not ask the Attorney General to opine on a matter of state law, which is one of the duties of the Attorney General as state government’s chief lawyer. He just asked Koster to use “any and all” legal actions to straighten out Nixon on this issue. He did not say what action should be taken.

The Attorney General is usually the officer who represents the state in legal proceedings, whether in a prosecutorial role or as a defense attorney when the state is sued.

Koster’s opinion would be of questionable value, not because he is Chris Koster but because he is the Attorney General and a long-ago court ruling held that an Attorney General’s opinion is no more valid than the opinion of any attorney.

So what action should he take? Sue the Governor? That might be awkward because the Attorney General defends the state against lawsuits. The mental image of Chris Koster arguing against himself in a courtroom would certainly be entertaining but not likely. Somewhere he might have to hire outside counsel but that’s not politically popular and furthermore it would cost money when the state doesn’t have much money, which is a big part of what the funding bill was all about to begin with!

We asked for a response to Crowell’s letter from Koster who told us, “We received the letter and we will respond to Senator Crowell.” That’s not a very nutritional response but under the circumstances it might be the best one available at the time.

Well, then, what does Nixon think of Crowell’s letter? “Our administration provided clarity and stability in funding for Missouri schools by distributing education funding proportionally among all Missouri school districts. The prohibition against legislating by appropriation is well established in Missouri,” said a statement from the Governor’s office.

Ohhhhhhh-kay.

Let’s throw some more mud in the water.

When Jay Nixon took the oath of office in January, 2009, he put one hand on a Bible and raised the other into the crisp January air and took this oath: “I do solemnly swear, or affirm, that I will support the Constitution of the United States and of the state of Missouri, and faithfully perform the duties of my office, and that I will not knowingly receive, directly or indirectly, any money or other valuable thing for the performance or nonperformance of any act or duty pertaining to my office, other than the compensation allowed by law.”

So Nixon could have allowed his actions to be dictated by something he thinks is unconstitutional, which would have violated his oath of office, or he could decide he would not accept something in a legislative act that would force him to violate that oath. He argues the legislature has violated a constitutional ban on legislating in appropriations bills.

So was Nixon honoring his oath of office or was he creating a constitutional crisis when he signed HB2014 but said he would ignore part of it because those parts are not constitutional?

What’s a fella to do?

Perhaps the fella can wait for somebody in a school district who feels damaged by Nixon’s decision to file a lawsuit (Senator Harold Caskey used to say the most dangerous place for anyone to stand was between a school superintendent and a dollar bill). That would get the issue in front of people who actually do have the power to rule on the constitutionality of legislative enactments.

* We don’t use many adjectives in writing news so we wanted to make sure “gadfly” was an applicable word. We turned to the sometimes trustworthy internet and mined this definition from some site or another: “In modern and local politics, gadfly is a term used to describe someone who persistently challenges people in positions of power, the status quo or a popular position.” While some might consider the appellation a disparaging one, it also is one that can be worn with positive enthusiasm. We think Senator Crowell is in the latter category.

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