Does the Rule of Law matter or is it an antiquated concept in this day and age? After all, our President regularly violates the separation of powers by unilaterally rewriting laws. So it comes with some surprise when a judge stands up to California’s executive branch and puts the brakes on California’s High Speed Rail project by, of all things, requiring government to follow the Rule of Law. Surprise or not, it could be an important test case for years to come.
The United States Constitution was an effort to constrain the activities of government by giving it enumerated powers and subjecting it to the Rule of Law. Today, however, our over-active governments and elected officials are engaged in constant battles over whether they are acting beyond their charters.
The most obvious example of that is our President who has changed a written law, i.e. the Affordable Care Act (ObamaCare) at least 15 times. Without a court challenge by Republicans, however, the President is destined to get away with it.
Beyond the President, unelected government bureaucrats have turned the 2500 page ObamaCare bill into 20,000 pages of regulations – which have the same effect as law. Yes, we have come to accept that agencies of the executive branch are tasked with implementing our laws, but does that mean that those bureaucrats really have the right to turn a 2500 page law into 20,000 page law? The answer also will be yes unless they are challenged in court.
All of which brings us to California’s burgeoning “High Speed Rail” debacle. By a narrow margin of just 52.7% to 47.3%, in November of 2008, the California voters passed Proposition 1A with the intent to provide $10 billion of state bond funds to help build a high speed rail line from San Francisco to Los Angeles. The ballot measure became the law of the land and contains certain requirements prior to the bonds being sold and the proceeds used on the project.
California’s Governor, its legislature, bureaucrats and Attorney General want the High Speed rail built right away. The project is the crown jewel destined to satisfy Governor Jerry Brown’s edifice complex – that uncontrollable desire of politicians to have something built on their watch, regardless of the cost, for which they can claim credit.
In their rush to get to the train station, however, California government officials chose to disregard the requirements of the law. Chief among their runaway plans was their failure to identify, with reasonable certainty, the “sources of all funds” for the project and they failed to obtain the requisite “environmental clearances” before pushing for funding and construction.
To give you an idea how much the government is pushing this project, when the state rail authority came before the California High-Speed Passenger Train Finance Committee asking it to issue $8.5 billion in bonds, they approved the request without ever seeing a staff report or any other supporting documentation. The committee approved the bond authorization in one minute and forty-three seconds with no discussion by the Committee members. Talk about high-speed railroading!
Not so fast however. Standing in the way of California’s runaway government is a Sacramento Superior Court Judge who has made a series of rulings which require that the various California governmental entities – get this – follow the Rule of Law, i.e. the text of the bond measure passed by the voters. The rulings are in response to a lawsuit brought by two individuals and Kings County – a county in the path of the railway. The suit, among other things, demands that the project comply with the statutory requirements if it wants to use the bond funds. Imagine that. They want government to follow the law.
It turns out, that the government had to admit that they could only identify a portion of the required funding. Indeed, the government’s plan states that the “mix, timing, and amount” of future funding “is not known a this time.” The judge noted the obvious and said that wasn’t good enough. The judge then blocked their efforts to use the bond funds without identifying all of the required funding in addition to forcing them to comply with the required environmental regulations. He also rejected the finance committee’s unsupported approval for issuing the bonds.
Rather than comply with the law, let alone the judge’s rulings, the state Attorney General has chosen to appeal the rulings. It is fairly apparent, given their ability to act in one minute 43 seconds, that the state could redo it plans quickly if it wanted to do so, but that might be politically inconvenient. By choosing to appeal the ruling, and spending taxpayer money to do so, the state is exposing its real agenda: it wants unchained license to take the taxpayers money and build whatever it wants.
You see, beyond the issue of funding, the high-speed rail initiative required the travel time between San Francisco to LA occur under 2 hours and 40 minutes. The current government plan, however, for a variety or reasons, mostly political, doesn’t comply with that requirement. It has turned into a slower, blended-rail system that will make use of some existing rails. Its failure to really be a high-speed rail project has in fact cost the project some high profile, early supporters.
Not to be deterred, rather than put forth a plan that does comply, Governor Brown and the Attorney General want to get the Superior Court Judge out of the way by overturning his Rule of Law orders. Why? The state openly worries, in their briefs, God forbid, that the judge’s rulings could have a ripple effect on other government operations beyond this case.
More than that, the state also asserts that the judge has no oversight over what they are doing – no right to make his rulings. They don’t want citizens to have a judicial recourse. If they can get the judge out of the way, surely they believe they will able to ignore the rest of the law not to their liking.
Finally, the state is also banking on the notion that if they can build at least part of the system, funding the rest of funding will be irresistible. Perhaps, they are doing so under the premise that if you build some of it, the rest (of the funding) will come.
However, a majority of voters no longer want the project. That is due in part because the project has been subject to wild costs estimations that dwarfed the initial amounts used to sell the original plan. For those reasons and others, funding from the federal government has been placed in serious doubt.
Picking up on that, Kamala Harris, the Attorney General who wants to be Governor, in her brief, decries that the judge’s rulings “have triggered concerted efforts of federal funding for the project.” In other words, the state’s top law enforcement official is complaining that the actions by a judicial officer to apply the rule law is standing in the way of progress.
Harris even has the audacity to claim that the judge is (are you ready?) “frustrat[ing] the intent of the voters . . . to build the project as soon as possible.” Actually, the judge believes the will of voters was reflected in the law they passed not in the right of public officials to disregard the law.
All in all, California’s high-speed rail has become a perfect example of unbridled and unaccountable government at all levels. Thankfully, citizens and a county, decided to take a stand and a Rule of Law judge decided to make the right call. We can only hope that the higher courts will support this judge is setting a precedent for every agency to follow in California, if not the country: Follow the law, not your thirst for power.
Originally published in Forbes.