Thursday, April 22, 2010

Bad Bills Make No Laws

By Marc Korman.

I recently wrote about good bills becoming good laws. Today I will take a look at a few bad bills that, thankfully, are not on their way to the Governor’s desk. The General Assembly wisely discarded these bills and should continue to do so if they arise again.

SB 140/HB 150-Clinic Restrictions in the Budget

As I previously wrote, the Senate version of the budget originally withheld funding for the University of Maryland until the law school’s clinic program reported on their cases and on how other law clinics select their cases. After many House members raised concerned, as well as outside advocates from both the law school and across the country, the House version was significantly improved. The fund withholding language was replaced with narrative reporting requirements limited to non-privileged information related to the Environmental Law Clinic. This was not a great result, but it was certainly better than the Senate version.

The law clinics should be a source of pride for the state, not a political football for the legislature. As I said in previous posts and comments, I view this issue as one of academic freedom. The law school is part of a public university, but I do not believe it is advisable for the legislature to get involved in its operations at that level of detail. That puts the university’s standing at risk and undermines its mission considerably. Full disclosure, I am a student at the law school.

HS 1/HB 1079/SB 1097 - Gay Marriage Ban/Attorney General Impeachment

I am grouping a pair of bills by Delegate Don Dwyer together. Dwyer introduced a blatantly unconstitutional bill to impeach the Attorney General because he disagreed with Gansler’s legal opinion on an issue. The issue was whether the state should recognize out of state marriages and regardless of how you come down on the issue, claiming impeachment powers that do not exist was not an appropriate response.

A more appropriate, yet still despicable in my view, response was the Marriage Protection Act. The proposal is a constitutional amendment defining marriage as between a man and a woman. The Maryland Court of Appeals decision in Conaway v. Deane found that the state’s due process constitutional protections did not forbid the existing statute banning gay marriage. That makes this constitutional amendment largely superfluous for the time being. It is still a horrible idea that attempts to write discrimination into our Constitution and assign gay couples permanent second class status in our state.

SB 397/HB 603 - Health Care Freedom Act

This EJ Pipkin/Delegate Shank monstrosity came in response to the federal healthcare reform. The constitutional amendment they proposed sought to score political points by saying it was not constitutional in Maryland to mandate that people have health insurance. The purpose of the so called mandate is to ensure that everyone who uses the healthcare system, which at some point is literally everybody, is paying into the system.

A number of states have successfully enacted such laws, including Virginia. Of course, the federal supremacy of the clause of the Constitution (Article VI, Clause 2) pretty much ensures that such state laws or constitutional amendments would be invalid. A much more serious, though I believe doomed to fail, effort is to find a healthcare mandate invalid under the federal constitution. My view is that a federal mandate may be constitutional under the interstate commerce clause (Article I, Section 8, Clause 3), but is certainly constitutional under the taxation clause (Article 3, Section 9 and the 16th Amendment) because it is enforced solely through tax penalties.

These proposed bills, constitutional amendments, and legislative amendments were pretty awful. Happily, the General Assembly improved on them, defeated them, or ignored them.