Attorney General Lawrence Wasden has accumulated quite a cadre of political enemies in the Idaho Legislature for giving honest, accurate legal advice on legislative bills that contain fatal constitutional flaws. He does not volunteer the opinions — they are only provided in response to requests from legislators. The AG’s opinion-writing duty is much like the work of a judge — there is no room for personal or political beliefs when telling the Legislature what is legal and what is not. This is important information because the state can face significant liability for placing unconstitutional laws on the books.
Wasden is fully aware that pointing out legal flaws in hot-button bills can be turned against him by unscrupulous politicians who claim he can simply ignore the law. He knows better, often issuing opinions that correctly state the law, even when the law conflicts with his strongly held moral and religious beliefs. The law requires no less. Any would-be attorney general who doesn’t understand this fundamental concept has no business aspiring to the office.
Standing up for the rule of law takes incredible courage, particularly when it hands unprincipled political opponents a serious wedge issue to use against you. That same courage has led to the formation of an anti-Wasden caucus amongst the extremist elements in the Legislature who care little about their sacred oath to support the U.S. and Idaho Constitutions. They don’t like to be told about the unlawfulness of their bills.
Instead of thanking Wasden for having the courage to tell them the constitutional truth, they have retaliated against him for doing his sworn duty. His legislative enemies, most of whom jump to the tune of the Idaho Freedom Foundation, have done any number of things to cause him grief–threatened funding for his office, jumped on the bandwagon of opponents who pledge to tell them what they want to hear instead of what the law requires, tried to take away his constitutional duties and used him as a political punching bag.
You might ask what these detractors hope to achieve, because the courts generally prove Wasden’s legal opinions to be correct. When he advises that a bill has constitutional flaws and the matter goes to court, he is usually vindicated. In recent years, the state has paid over $3 million to private attorneys who have successfully challenged unconstitutional laws. The Legislature has now turned to retaliating against the court system.
Lawmakers have just embarked on an effort to intimidate the Idaho Supreme Court into bending to its will. Legislators have been angry ever since the court unanimously slapped down their effort last year to effectively take away the people’s constitutional right to legislate on their own behalf with the initiative and referendum. The Legislature regards itself as the preeminent power in our fair State and believes that the governor, attorney general and people themselves must bow to their glory. And legislators are not about to let the courts stand in the way of getting what they want.
In the very final days of the legislative session, without even checking with the courts, power-hungry legislators whipped out a bill (HB 782) making substantial changes to the process for picking trial and appellate court judges. To drive home their unhappiness with the Supreme Court, legislators intertwined the bill with a judicial pay raise.
Budget writers, recognizing a 7% inflation rate over the last year, had previously established a pay raise for state employees of 3%, plus $1.25 per hour for merit-based increases, which works out to about 7%. HB 782 provided only a 2% pay increase for Supreme Court and District Court judges, clearly designed to punish those judges. To his credit, Gov. Brad Little vetoed the bill on March 30.
So, now the courts have joined the attorney general in the Legislature’s crosshairs for faithfully carrying out their sworn oath to honestly interpret the U.S. and Idaho Constitutions. Perhaps now is the time for the people to speak out at the ballot box to say that constitutional government is preferable to ill-informed legislative dictates.
Jim Jones is the former Idaho attorney general and former chief justice of the Idaho Supreme Court. His previous columns can be found at https://JJCommonTater.com.