Few things are more gratifying to a lawyer than when another lawyer of great stature agrees with the first lawyer’s legal opinion on some matter of significance. So, needless to say, I was quite pleased yesterday when I read Attorney General George Jepsen’s legal opinion that the state’s constitutional spending cap “has no current legal effect,” i.e., it is unenforceable. I wrote a couple of blog posts last April that reached that same conclusion.
Governor Malloy has renewed his call for a constitutional amendment that would create a “lock box” for tax revenues dedicated to transportation infrastructure projects. He wants to ensure that certain sales tax and other revenues are actually used for the purpose for which they were levied.
express no opinion on [have no expertise germane] to whether a transportation lock box makes good sense as a matter of public policy. I do have an opinion, however, on whether a lock box amendment would be judicially enforceable. My opinion is that unless the proposed amendment contains specific language vesting jurisdiction in the state courts to decide cases involving alleged violations of the lock box, the Connecticut Supreme Court will is likely to treat lock box disputes as “political questions” over which the judicial branch has no jurisdiction. The end result could be “feel good,” but legally unenforceable, language in the state constitution.
The Yankee Institute for Public Policy, a Connecticut-based conservative think tank, recently released a policy brief concerning Connecticut’s spending cap. The brief is referenced in an Op-Ed on CT News Junkie authored by Peter Bowman, President of the Connecticut Lawyer’s Chapter of the Federalist Society.
Contrary to my earlier post, which explains why the spending cap is judicial unenforceable, the Executive Summary of the policy brief states that “if lawmakers raise taxes while also exceeding the spending cap without an emergency declaration, taxpayers may have cause to challenge their tax bills in court.” The key word in this sentence is “may,” and it is a word with which I respectfully disagree, unless it is construed to mean “infinitesimally small possibility.”
Short answer: No. Long answer: No. Short explanation: The “political question” doctrine. Longer explanation: See below.