Legislative safeguards can’t keep state from court

Indiana conservatives appeared to win major national victories with a trio of laws passed this year cracking down on illegal immigration, defunding abortion clinics and paying for children to attend private schools.

But rebukes from a pair of federal judges and a lawsuit challenging the constitutionality of the state's sweeping new school voucher law have raised questions about how proposed laws are vetted for legal issues before they get to a vote in the General Assembly.

Lawmakers ultimately decide how Indiana handles hot-button issues, but legislative staff try to raise red flags about clear constitutional violations or other possible missteps along the way, said Jeff Papa, chief of staff to Senate President Pro Tem David Long.

"It's not a hard science," he said.

A pair of federal judges placed temporary holds last month on two key victories for Republicans who control the General Assembly: a plan to block funds to Planned Parenthood of Indiana and portions of a new law that would have broadened police officers' ability to arrest illegal immigrants and blocked the use of foreign identification cards.

In granting a temporary injunction blocking part of the state's new immigration law, U.S. District Judge Sarah Evans Barker said the state's efforts "have proven to be seriously flawed and generally unsuccessful."

The Indiana State Teachers Association filed the most recent challenge to a state law at the start of the month, saying the plan to pay for students to attend private schools violates a clause in the state constitution mandating the state provide a "general and uniform System of Common Schools."

"Sometimes I wonder if you find legislators who just want to push the boundaries on something like that," said Doug Masson, a Lafayette lawyer and veteran observer of Indiana politics.

Masson used to work for Indiana's Legislative Services Agency, which does the grunt work of translating lawmakers' ideas and goals into legislation. LSA lawyers typically alert lawmakers if they spot something that is either unconstitutional or would violate federal law, he said.

Their job, Masson said, is not to make political judgments of whether an idea is good or bad, but to give lawmakers the lay of the land and let them decide whether to proceed from there.

In the past, moderate Republican leaders like Bob Garton, who used to head the Indiana Senate, would often keep hot-button issues like abortion locked away in committees, rather than put lawmakers through a grueling debate or get the state locked up in court, he said.

But supporters of Indiana's controversial new laws say decisions should not be made based on political expediency.

"For many there would be a moral imperative here," said Sen. Greg Walker, R-Columbus, who supported the defunding of Planned Parenthood this last session. Walker unseated the more moderate Garton in 2006.

In the Planned Parenthood case, pro-choice advocates and the Obama administration have argued that the new law clearly violates federal law regulating how billions in Medicaid dollars can be used.

But for people who believe strongly about an issue like abortion, abridging a man-made construct like a federal law is a low hurdle, Walker said.

"What position am I left with other than to say, 'Who gives you the right?'" Walker asked.

Both parties in the Indiana House and Senate maintain their own legal counsel, who guide lawmakers on legal questions and often provide spot answers during contentious debates.

Working in conjunction with the LSA lawyers, the Republican and Democratic advisers try their best to catch obvious mistakes or possible pratfalls, Papa said.

But in the end, whether to pass a law is a political decision made collectively by the state's lawmakers, Papa said.

"They could ask for anything in the world to be drafted, whether it's a good idea, a constitutional idea, or a bad idea," he said. "Then it's up to the political process where you go from there."

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