1889 Blog

When the Supreme Court of the United States (SCOTUS) begins its term next week, one of the many important cases it will consider is that of Espinoza v. Montana Department of Revenue , which addresses Montana’s Tax Credit Scholarship program, and gives the high court an opportunity to decide whether Blaine Amendments (which generally prohibit any state money from going to a “sectarian” purpose) violate the establishment and free exercise clauses of the first amendment, as well as the and equal protection clause of the 14th Amendment. At the very least, the justices should rule on whether Blaine Amendments (like Section II-5 of the Oklahoma Constitution) can be used to exclude religious schools from school choice programs which insulate the state from direct subsidy of religious organizations through the “genuine, independent choice of private individuals.”   The question presented to the court is “Whether it violates the religion clauses or the equal protection clause of th...

When is election day? Most people probably assume it’s the first Tuesday in November. That makes sense, since that’s the date for statewide elections, and, in even numbered years, federal elections as well. Would it surprise you to learn that there is an election scheduled in Oklahoma every single month in 2019? That is not to say that every district has an election every month. That would be a hassle - the well-engaged citizen would have to make it to his local precinct every 4 weeks to make sure his views are adequately expressed. The slipshod way local elections are scheduled is far more shocking and less predictable than that. One would be forgiven for thinking, on first glance, that Oklahoma allows government bodies to change lawmakers and raise taxes through oddly scheduled, poorly noticed elections on (almost) whichever Tuesday they want. However, in reality there are “only” 15 days per year when local elections can be scheduled. Still, this means that the party in p...

I should point out, before the reader gets into this piece, that these are my personal thoughts. Right around last Labor Day, I suddenly had a thought. I quickly made a calculation and realized that, as of the day after Labor Day, I’ve worked full-time in public policy for 25 years – a quarter of a century. While there really is nothing fundamentally more special about a 25 th anniversary than a 24 th or 26 th one, it is a widely-recognized demarcation point. Therefore, it seems worthwhile to take time and write down reflections on my career. My work has touched on several policy areas, but I’ve been thinking a lot about public education lately. That’s the area I practically swam in when I started my career, so here are my thoughts. On the day after Labor Day in 1994 I started work for a member of the Texas House of Representatives. He was the member who always carried a voucher bill, an issue for which I was thrilled to work. By that time, my wife had homeschooled our dau...

Do you know what a perfusionist is? I didn’t, either, but it’s one of the many occupations that are licensed in the State of Oklahoma. However, we at the 1889 Institute are gradually looking into each licensed occupation to learn if there is justification for forcing people to ask the government’s permission to earn money doing it. So, we got curious about these perfusionists, about which we knew nothing, and why they are licensed ( our report ). It came as no surprise that perfusionists use their skills in medicine. Nearly every occupation involved in medicine, other than custodians, especially in Oklahoma, is licensed. Yet, the majority of states do not license perfusionists . Perfusionists do perform an important service. They monitor and operate the machines that regulate blood and air flow of patients having heart surgery. And perfusionists have accidentally killed people, sometimes due to something as simple as failing to notice a kinked hose. We have previously rev...

When deciding whether people have broken laws, should judges consider the intent of the legislators who wrote the law? Or simply consider the plain language of the law as written? Legal scholars have debated this question for decades. However, there is only one answer that protects We The People. The Declaration of Independence states, “Governments are instituted among Men, deriving their just powers from the consent of the governed.” This means, among other things, that only laws actually voted on by the people (or their validly elected representatives) can be legitimately enforced. Any purpose not written into the law was not voted on, and so should not be imposed. What does this have to do with interpreting laws? In the republican form of government, the citizens speak through their elected representatives. These representatives pass laws collectively, almost always through two legislative bodies (House and Senate) and an executive (President or...

Apparently, if you’re a legislator in Oklahoma and want to look like you’re doing something about an issue while not actually doing anything at all, you pass a bill to create a commission to study the issue. At least, that’s how the Oklahoma Occupational Licensing Advisory Commission (LAC) has operated so far. According to a study I did while at the Goldwater Institute, Oklahoma ranked as the 24 th most-licensed state. A study by the Institute for Justice ranked Oklahoma 35 th in how broadly and onerous its licensing laws are. But these, and similar studies, are really just counts of how many occupations states license, so they leave out a lot of nuance. The Institute for Justice’s report does add some nuance, reporting that by its standard of measure, Oklahoma ranks 18 th in how burdensome are its licensing laws. That is an important piece of information. On the one hand, according to the Institute for Justice, Oklahoma’s licensing laws cover fewer occupations than in ma...

Oklahoma’s Attorney General and trial courts appear to now be in the business of taxing industries and appropriating funds to state agencies. These are powers that the Oklahoma Constitution explicitly grants to the legislature . They are certainly not given to the Attorney General or the courts. But in the name of mitigating a “public nuisance,” these legislative powers have effectively been misappropriated.   The $572 million judgment recently handed down in Oklahoma’s opioid litigation looks an awful lot like a piece of legislation. It purports to tackle a broad societal problem by taxing a company alleged to have contributed to it and using the money to fund government agencies and programs aimed at ameliorating the problem. The Court and Attorney General justified this approach by claiming an “abatement plan” was needed to counter the so-called public nuisance of prescription drug abuse. Besides stretching the public nuisance theory far beyond its historical application ,...

W hen   the nine lawyers on the Oklahoma Supreme Court meet to hear a case, no legislation is safe. That's because the justices on the Supreme Court regularly act as though they are lawmakers instead of judges. My most recent paper , Legislators in Black Robes: Unelected Lawmaking by the Oklahoma Supreme Court , explains how the justices achieve this lawmaking.  When the justices decide their mission is to take out a law, they weaponize otherwise mundane provisions of the state constitution (the single subject rule and the ban on special laws, for example) to strike the law down. If that tool is too blunt of an instrument for their purpose, they declare a law “ambiguous” and go about re-writing it from the bench. They justify the re-writing as an attempt to conjure the “intent” of the statute, regardless of what the actual words on the page say. If the law the justices want to strike down isn’t ripe for review, no problem. The Court has invented a concept called “pub...