Walters: Legislating by Whim
The Democrats who dominate the state Legislature have developed a very bad habit — legislating by whim.
If they take a dislike to something or someone, they ban it. If they like something, they impose it on everyone and/or give it taxpayers’ money.
An excellent example was a law that required clinics offering non-abortion alternative services to pregnant women to post notices telling them about the availability of abortions.
Unfettered — and unquestioned — access to abortion is a Democratic Party shibboleth, so anything or anyone expressing an alternative viewpoint is, in the minds of legislators, an evil to be suppressed.
However — and predictably — the U.S. Supreme Court slapped it down as a violation of the U.S. Constitution’s right to free speech.
“By compelling petitioners to speak a particular message, it alters the content of (their) speech” and thus violates a previously enunciated judicial principle, the majority opinion declared.
One of the Legislature’s Evident Dislikes Is President Donald Trump
As that case illustrates, when the Legislature acts on one of its collective whims, it invites adult supervision. The Supreme Court provided it on the abortion notice law, and although he signed that law, former Gov. Jerry Brown vetoed some of the Legislature’s more immature outbursts.
Things changed when Gavin Newsom became governor this year. He has his own streak of impulsiveness, and has been willing, even eager, to tread where Brown did not.
One of the Legislature’s evident dislikes is President Donald Trump, so it passed a bill last year declaring that to appear on California’s presidential primary ballot, a candidate had to release his or her income tax returns.
However, Brown, who shares legislators’ disdain for Trump but had refused to release his own income tax returns, vetoed the measure.
“While I recognize the political attractiveness — even the merits — of getting President Trump’s tax returns … it may not be constitutional,” Brown warned, adding, “Today we require tax returns, but what would be next? Five years of health records? A certified birth certificate? High school report cards? And will these requirements vary depending on which political party is in power?”
Undeterred by Brown’s common sense, the Legislature passed a virtually identical bill this year. Newsom signed it, and — of course — characterized it as an expression of moral principle, rather than a constitutionally dubious and petty hit job.
Constitutionality Is Never a Barrier
In “extraordinary times,” Newsom declared, state officials “have a legal and moral duty to do everything in their power to ensure leaders seeking the highest offices meet minimal standards, and to restore public confidence.”
“Would the Legislature be entitled to impose requirements that candidates produce birth certificate or psychotherapy records or affidavits that they have never committed adultery or been a member of the Communist Party?” Justice Joshua Groban asked the hapless state lawyer trying to defend the law’s legitimacy.
“The Legislature can then tack on any number of additional requirements?” asked Justice Ming W. Chin. “Where does it end? Do we get all their high school report cards?”
Chief Justice Tani Cantil-Sakauye made the most telling point — that the court searched the records to determine if the Legislature even consulted the state constitution before acting and “We didn’t find anything.”
The unspoken answer was that when the Legislature — and now the governor — enact one of their whims, constitutionality is never a barrier.
CalMatters is a public interest journalism venture committed to explaining how California’s state Capitol works and why it matters. For more stories by Dan Walters, go to calmatters.org/commentary