and the
Citizens Economic Research Foundation

Barbara's Column
January  2004 #1

Despite mixed results,
separation of powers must be respected
by Barbara Anderson

The Salem News
Friday, January 9, 2004

Pop quiz: What happens if the Massachusetts Supreme Judicial Court (SJC) tells the Legislature to do something, and lawmakers say they won't?

A.)  The SJC grounds the Legislature or cuts its allowance.

B.)  The SJC has the entire Legislature (or at least its leadership) arrested and jailed until it gives in.

C.)  The SJC goes on strike and refuses to make any more decisions until the last one is obeyed.

D.)  The SJC gives up and admits defeat.

The answer is probably "D." And looking at the other choices, you can see why. There is no easy alternative, and never has been.

This is a very old issue. The balance of power among the branches of government has never been easy to define at the federal level either. From George Washington's refusal to give the House of Representatives information about a treaty he had negotiated, to Richard Nixon and Bill Clinton's use of "executive privilege" to avoid sharing damaging information with Congress, the executive, legislative and judicial branches have worn kid gloves when handling the separation of powers. None of them wants to risk losing their share of vital power by losing a confrontation, so they avoid such confrontation whenever they can.

The same problem exists between the federal government and the states. When the former wanted to abolish slavery, the South went to war in resistance. When the federal court told Boston to desegregate, it had to send in federal marshals to implement the order.

The winner of an intergovernmental battle is the same as the winner of most other battles - the entity that is bigger, stronger or better armed gets its way.

The classic reference on balance of power is the "Marbury v. Madison" case that we learned about in American history class. In 1803, William Marbury sued Jefferson's secretary of state, James Madison, for a commission he had been awarded, but never actually given. The Supreme Court ruled in Marbury's favor, then said it had no authority to enforce the ruling.

The same is often true in Massachusetts. The state Supreme Judicial Court cannot send the Legislature to its room or cut its allowance. But because it has the "power of the purse," the Legislature can cut the SJC's allowance and refuse to fund maintenance of its offices. We recall when the Legislature cut the budget of Housing Court Judge Daher, who defied Senate President Bill Bulger on a patronage issue.

Why is this all important today? Because the hot issue of 2004 is gay marriage, a mandate of the SJC that must be followed by the Legislature. But what if the Legislature doesn't wanna? What happens then?

In 2001, citizens collected signatures to place a "defense of marriage" constitutional amendment on the ballot. The state constitution requires a legislative vote on all proposed initiative amendments. The Legislature refused to vote. The SJC agreed just last month that the vote was required. But then it said, as in the Marbury decision, that it couldn't make the Legislature obey the constitution.

If I were the SJC, I'd be happy to jail legislative leaders until the constitution was obeyed. In fact, legislative leaders from the 1970s and '80s who didn't vote on initiative amendments for tax limitation and term limits might still be incarcerated, if it were up to me. I'll bet their replacements would then think twice about cutting court budgets in retaliation, and might take the constitution seriously.

If the Legislature had voted to place the "defense of marriage" initiative petition on the November 2004 ballot, the final decision would be made soon by Massachusetts voters, not the courts.

Instead, the issue is presently complicated by the possibility that legislators will create their own constitutional amendment to be sent to the voters in 2006. This just drags the debate out longer, which is unfortunate because it is not a friendly debate.

Another decision just came in from the SJC on the date of the special election to fill the seat of Sen. Cheryl Jacques, D-Needham, who left for another job this week; except the Senate pretended she left last year so it could claim there was enough time to set the election on the date of the national primary, giving the Democratic candidate an advantage.

If the court had ordered a different date, Secretary of State Bill Galvin would have had to decide which branch to follow, and which date to use. Since he is part of the executive branch, this means all three powers would have had to balance somehow. The SJC simplified everyone's life by letting the Senate pretend Sen. Jacques wasn't still hanging around.

Having said all the above, I do realize that activist courts nationwide have exceeded their authority at times, and we don't want to give them carte blanche to make laws or intimidate the executive branch. Separation of powers is the basis of our constitutional republic, and must be respected, even if we can't respect the often foolish decisions of the agencies themselves.

Barbara Anderson is executive director of Citizens for Limited Taxation. Her syndicated columns appear weekly in the Salem News and Lowell Sun; bi-weekly in the Tinytown Gazette; and occasionally in the Providence Journal and other newspapers.

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