Bipartisan Forces Gather in Court Against Blagojevich

By Dennis Byrne
Chicago Tribune

For those who already are convinced that Gov. Rod Blagojevich is nuts, here's something to add to the growing pile of evidence: He's now insisting that legislation he once signed into law is unconstitutional. You can reasonably ask why he enacted the law in the first place, and the obvious answer is that the law no longer serves his cynical political purposes, so he pretends that the law, and the Illinois Constitution, doesn't apply to him.

Blagojevich figures that voters are too stupid or uninterested to appreciate what he's up to. But check it out; you might be amazed as I am at his audacity. You'll recall that the governor had proposed a huge increase in the state health-care program, substantially increasing the number of beneficiaries and proposing a gigantic tax increase to cover the costs. You'll also recall that his idea died when he failed to get even a single legislator to vote for it. No matter; he started the program on his own, without legislative approval. When a legislative committee -- the Joint Committee on Administrative Rules -- that oversees administrative actions then blocked his move, he said, in effect, kiss my burro, and went ahead with the program anyway. You don't need a lawyer to understand that his defiance of the legislature was an unconstitutional violation of the separation of legislative and executive powers.

The state, the constitution says, can spend money only from "public funds" authorized by law, and that only the legislature can authorize the expenditure of public funds. Even a moron should understand the constitution's clarity.

But Blagojevich pushed ahead anyway, saying, "Because we didn't get some legislators to support this, I'm acting unilaterally to expand health care." Under the law, the joint committee on rules has the authority to review directives, such as the one establishing the health-care expansion, for conformance with laws passed by the legislature. Since there is no law that authorizes the program, the committee's decision to block it seems fairly hands-down.

But always there's a loophole, and Blagojevich is trying to drive a truck through it.

The law allows the governor to create some programs on an "emergency" basis. So, the governor declared an emergency, even though no one in the administration adequately explained to the joint committee what the emergency was.

Now comes the twist.

The law that Blagojevich himself signed earlier (the Illinois Administrative Procedure Act), gives the joint committee on rules the authority to suspend the governor's "emergency" action, and after due consideration, it did. Blagojevich's office now argues that the joint committee's action is unconstitutional.

The guy thinks he's Napoleon. All that's left is for him to declare himself emperor, suspend the constitution and crown his wife empress.

The first to file suit against this coup d'etat wasn't an affronted legislator, but a civic-minded individual, Riverside attorney Richard Caro. It's the second go-around for Caro, who last year unsuccessfully sued to stop Blagojevich's unilateral and witless decision to cast $10 million into stem-cell research. Caro's suit has been consolidated with another one filed by Republican Ron Gidwitz, a former Illinois gubernatorial candidate, and Gregory Baise, president of the Illinois Manufacturers' Association.

Blagojevich retaliated by calling the legal challenge "Scrooge-like," suggesting it was a product of Republican malevolence toward the poor.

Now, however, Atty. Gen. Lisa Madigan, a Democrat, has intervened to defend the Joint Committee on Administrative Rules' powers, while the Chicago-based Sargent Shriver National Center on Poverty Law has asked to intervene on Blagojevich's side. Cook County Judge James Epstein will hear the case.

This is shaping up to be a first-class constitutional crisis, the kind that the courts are reluctant to enter. Bringing it on apparently doesn't bother Blagojevich, whose Napoleon complex is far advanced. If he loses this fight, he can always whine about how those meanies are endangering people's health care.

Politically, he wins either way. Does it matter that the governor is trashing the constitution? Most people probably consider the fight to be a boring "process" issue, too arcane to bother with. But the answer does matter, to the people who sign up for his plan, only to have it yanked away from them because of its obvious illegality.

In this, Blagojevich doesn't really care about the people he claims to be championing. But there's a bigger issue: To ask if this really matters is to ask if the rule of law and democracy matter.