Monday, June 2, 2014

Invoking Police Powers by John Dillon

“…In her counter-arguments to Judge Belz, whether historically specious or carefully imbalanced, the Attorney General summons what is always the dogma of police powers: to bring about and assure the greatest good for the greatest number of people. 

“Of course, this is the basis for good government to begin with, and in the case of Illinois, that oath and responsibility has become so hijacked and bastardized that the Attorney General now finds herself in the embarrassing position of calling up the most malevolent of state powers to punish citizens in a specific class to ‘provide for’ others. 


“In Illinois this action becomes tantamount to washing away a significant debt by claiming a benefit to the many.  But what may be good to the many is hardly known by Madigan or anyone else.  The many not only includes only public servants.  It may also include family members and dependents.  It might include another person who holds contracts with Illinois who wants to see them regarded with some ethical or moral certainty.  It may include shop owners or purveyors who deal with those whose pension provide income. 

“In fact, the ‘many’ cannot be known.  Even when used freely by an Attorney General. In actuality, the ‘many’ (as one can read over in her arguments) becomes the bottom line for a legislature frantic to avoid a bill of their own making. 

“A state government’s responsibilities include promoting the general welfare and the securing of the inalienable rights of those within its borders.  Make no mistake. Police Powers are exactly the opposite:  A destructive and harsh coercion of a group or class or particular persons in the name of the many.”

From a Reiterated Commentary regarding Emergency Police Powers on this Blog:

“Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the Federal Government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under our constitutional system” (U.S. Supreme Court, Home Building & Loan Assn. v. Blaisdell, 290 U.S. (1934)).

In regard to the “diminishing or impairing” of a pension clause or contract that protects citizens’ rights, the United States Supreme Court has held “that the court must establish that impairment is reasonable and necessary to serve an important public purpose, such as ‘the remedying of a broad and general social or economic problem.’ To show that a change is necessary, the state must establish that no less drastic modification could have been implemented to accomplish the state’s goal; and that the state could not have achieved its public policy goal without modification” (Education Sector Policy Briefs).

A state’s option to exercise its police or eminent domain powers, however, has seldom been brought to the test for obvious reasons. To declare that Illinois is in an “emergency state,” without attempting revenue restructuring, for instance, will ignite an examination of the ethical and legal motivations of policymakers and whether they attempted to exhaust every alternative available to them for resolving the state’s financial debts before attempting to ignore a constitutional contract.

“[Furthermore], budgetary relief is not a legitimate public purpose; for a severe financial crisis (Great Recession), courts [have been] split [on the issue]. Courts seem to be in consensus that the long-term fiscal health of a pension plan to assure receipt of future benefits is a legitimate public purpose…  If a pension benefit is diminished without ‘offsetting consideration or benefit to plan members,’ [lowering the contribution rate one percent was not a legally negotiated consideration,] courts will typically find ‘substantial impairment’” (Pension Reform, Legal Principles and Consideration).  Once offered, historically and legally, promises that were made need to be kept.

There is no financial "emergency" in Illinois. This is about power and politics, about theft and reneging on a constitutional contract with public employees. There is no justice in diminishing the benefits and rights of public employees and retirees; there is no justice in granting tax breaks for wealthy corporations and, at the same time, legislating cuts to public employees’ constitutionally-guaranteed compensation. It is legally and morally wrong to perpetuate the victimization of public employees and retirees, especially when Illinois legislators give “undeserved weight to highly-organized wealthy interest groups, [those groups] tending to ‘drain politics of its moral and intellectual content’” (Laurence H. Tribe, American Constitutional Law).

We might assume the government of Illinois would not want to prove that its contracts are worthless, especially when the “most basic purposes of the impairment [of the contract] clause [Article XIII, Section 5] as well as notions of fairness that transcend the clause itself, point to a simple constitutional principle: government must keep its word” (Tribe).

(The painting is by Pawel Kuczynski) 

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