Before you think this is too absurd a question to merit discussion it appears this is exactly what is being tried in Kansas:
I am not sure if things work differently at the state level but what would happen if the federal legislative branch tried this?
We are to have three branches of government as laid out in the constitution but congress has the power of the purse. What if they said they weren’t going to pay judges anymore unless they did as congress bade them?
As for Kansas I am not sure Brownback thought this through. The courts generate a lot of revenue for the state in the form of fines and whatnot not to mention what happens when you can no longer prosecute criminals or adjudicate civil matters.
A constitutional crisis, basically. There’s no precedent for this.
Well, not exactly. The legislature and the executive are working together to undermine the judicial branch in Kansas. It’s unethical and stupid, but it probably is legal. The Kansas Constitution guarantees judges’ salaries during their time in office, but it doesn’t seem to say anything about funding the judiciary otherwise.
ETA: the Kansas Constitution guarantees “justice without delay”, which appears to be analogous to the access to courts provisions of other state constitutions. So it probably is unconstitutional, though it would likely have to be challenged by a litigant.
I know you’re sort of kidding, but for practical purposes it doesn’t make a difference. The judicial branch has always depended on the legislature to fund it and the executive to enforce its holdings. “John Marshall has made his decision; now let him enforce it!” Presumably the Kansas courts would agree to hear this case whether they were funded or not.
What will happen in Kansas? Let’s say the justices rule against Brownback and they retaliate by defunding the judiciary at the next opportunity. When will that happen? Do the courthouses go dark? Do people work without pay?
Let’s say a guy gets picked up for some crime. Does he just sit in jail because the courts don’t have money to run?
Could Brownback defund things on a line by line basis that hurts those judges but not many other people? Like, Judge A’s government paid car, stricken! Judge K’s travel allotment, gone! But everyone from the court secretaries to the power to the courthouse itself remain untouched?
And are there scab judges he could bring in? Lets say nothing gets done in the courts, or the judges quit or refuse to work out of protest. Could Brownback bring in, for example, some qualified Nebraska judges to help out with the work load?
Is there anything in their constitution that specifies that they have to provide for a judiciary branch?
So how come people yell all the time about Obama and how he hates the Constitution, but when these guys actually wipe their ass with it the same people are oddly quiet?
It’s an appropriations bill. As I understand it, nothing would happen immediately because the treasury advances funds to the judicial branch to pay its expenses as they come due.
Having read the bill, I don’t think it’s constitutional anyway. The language in question is:
2338 is the one stripping the chief justice of appointment powers over the lower courts.
Severability clauses (and non-severability clauses) are common. However, declaring that a bill is not severable from another bill is unheard of, as far as I can tell. Like most states, the Kansas constititution includes a “single subject” rule, which basically prevents logrolling. This seems to be a fairly blatant end run around that rule (although I suppose there is only one “subject” of these bills, depending on how Kansas treats appropriations.)
At the federal level I would hope this constitutional question never needs to get addressed. Of course this is a matter of degree - the Congress should have the power to penalize other branches though funding means. I think there should be a limit, but I don’t know how that would work in principle.
The Kansas Supreme Court doesn’t seem shy about telling the legislature how much to fund in other areas - perhaps part of this is tit-for-tat.
On the federal level, I believe the US Constitution provides the same as the Kansas constitution, that a judge’s salary cannot be reduced during his tenure. So it would work the same - judges get paid but no one else.
The federal Constitution holds that judges’ salaries may not be decreased during their tenure in office. Presumably, a court would simple order the treasury to continue paying them in the absence of an appropriation by Congress. However, salaries to any non-judges would require an act of Congress, so Congress could certainly make a mess with the judicial branch that way.
ETA: Shodan beat me to it while I was reading section 3 of the Constitution to make sure I wasn’t making it up…
My assumption would be that if the Kansas Constitution says a judicial branch must exist, then the other branches of the state government can’t eliminate it - either directly or indirectly by cutting off its funds. So any law passed which defunds the judicial system would be ruled unconstitutional.
There would be courts. If the state of Kansas could somehow shut down its courts before they could rule such a shutdown was unconstitutional, then people would just submit their protest to a Tenth Circuit federal court.
A federal court has no jurisdiction to enforce a state constitution. You’d have to find a federal constitutional violation to challenge. Off the top of my head, I can’t think of any. Due process, perhaps.
If unlikely circumstances are allowed, then what can Congress do to stop the judges from creating laws and enforcing them in the courts? They take the money away, no more courts … balance of powers … any two branches can control the third.
They can not consent to the nomination of judges who will do that. Their check on the executive is the power of the purse. Their check on the judiciary has (historically) been the power of advice and consent. That’s why we call it an “independent judiciary”.
Would this fall under the federal constitution’s guarantee that states will have a republican form of government (Article 4)? As a layperson, I believe that term is undefined but it seems perfectly reasonable that the federal judiciary would consider the state judiciary to be an essential part of a republican system of government.
