Sen. Delph has introduced SB 280 which would confer standing on individual members of the General Assembly when, in their sole discretion, they don’t believe a challenge to that legislation is being adequately defended. In particular, it gives this discretion to the “first author” on a bill and then the “second author.” If the first and second authors are no longer members of the general assembly when the challenge is happening, then no one has this standing. If one of these individuals has intervened and then stops being a member, then the Speaker or the President pro tem gets to appoint a member to substitute in the litigation.
This legislation disregards the fact that legislation is the will of the body – not of any particular person. A member of the general assembly is just a citizen, no more no less. It’s only the body, acting as a group, that has additional power. This law would be a little more palatable if it conferred upon the General Assembly, acting as a body, the power to vote to defend its legislation on its own in the courts.
But in any event that would disregard separation of powers where it is the job of the executive, not the legislature, to execute the laws. So many of these proposals look like power grabs – “I might not like the way the attorney general defends a law; give me the power!” // “I might not like a law adopted by Congress; nullify!” // “I might not like a federal regulation; make it a felony to enforce!” // “I might not like the way local government conducts itself; add another exception to home rule!”
Do you know what brought this on? Are they envisioning situations like with DOMA where the executive branch decided it didn’t want to defend the law anymore so Congress funded some lawyers to keep the Supreme Court fight going?
Seems like the Indiana Attorney General bailed on defending a court challenge to parts of Indiana’s immigration law when the Supreme Court struck down the very similar Arizona immigration law.
Something else concerning separation of powers: Isn’t it the function of the judiciary, not the legislature, to determine who has standing?
I guess I would disagree with that to some extent. The legislature can create causes of action and, in that respect, create standing for particular classes of litigants.
Doug – you have been doing this longer than I (looking at proposed legislation either for the blog or as part of previous employment), but it sure seems to me like this year has a lot of bills that are just head-slappers.
Or is it like this all the time?
Delphi has been inspired this year. You can tell where he is particularly off the tracks when you see this: January 7, 2013, read first time and referred to Committee on Rules and Legislative Procedure.
Just more bad law.
Realizing that general assembly has their own rules as to conducting meetings and business, but in the “real” world several points as to both thinking and sometimes action is different. Who owns a motion? In the general assembly the ownership is often treated as if the maker owned the motion completely through its consideration. Now, this proposal would appear to have the maker continue to own it even after passage. In the real world no parliamentary authority allows for ownership of the motion to the maker once the group starts consideration (debate or voting). That is, maker has not greater say as to disposition of the motion than any other member once it is in the hands of the group.
The best thing in the minds of the current crop of whack-job Republicans is that they have near-total control of state government. They don’t realize that’s also the worst thing. That is, assuming voters in their districts wake up and throw out these clowns. I think often that my hometown of Carmel, which likes to think of itself as so intelligent, consistently puts such stone-dumb idiots in office.