Invoking Police Powers: Initial Thoughts
In her argumentative response to Sangamon County’s Judge Belz concerning petitions by We Are One and other legal teams seeking a stay or injunction on the implementation of SB1 (PA 98-599), Attorney General Lisa Madigan provided a summative assertion of the legitimacy of PA 98-599, given the State’s Police Powers. In other words, the Attorney General was invoking the right of sovereignty of the State of Illinois.
Recall that Attorney General Lisa Madigan’s request to Judge Belz for “Reserved Sovereign Powers” described the state’s overrule of the possibility of a determination of PA98-599 being found unconstitutional or of anyone bringing such a complaint against the state.
“All causes of action asserted in the Plaintiffs’ Complaint fail to state a claim and are barred because Public Act 98-599 (the ‘Act’) is a permissible exercise of the State of Illinois’ reserved sovereign powers (sometimes referred to as the State’s police powers). Plaintiffs cannot sustain their burden of establishing that Public Act 98-599 is unconstitutional “
All states including Illinois exercise powers of sovereignty, but to a lesser degree than called for by Attorney General Madigan. Sovereignty, at its most base and fundamental application is quite simply the power to forcibly coerce individuals or citizens residing within its boundaries.
In practice, it is not unusual for any state in the union to use the lesser aspects of sovereign powers in the name of the greater good: taxation and eminent domain come to mind quickly.
Taxes of course, taken from earnings or owned properties, are mandated by the state in order to provide the services and the support required by its citizenry.
Eminent domain, on the other hand, is the more forcible appropriation of personal property by the state in order to provide for a public good or benefit; this is usually afforded acts of “due process” and “just” compensation.
Lawyers often present arguments in scatter patterns, and a perusal of all 180 argumentative points by both sides before Judge Belz clarify the full efforts by each side.
While many disputes are presented, in this post on at least one occasion is considered with the aspects of Eminent Domain appear in various arguments presented by We Are One legal teams. In short, We Are One argues the taking of pension benefits falls under the taking of property.
Furthermore, the term “consideration” has been mentioned often during disputes over SB1 and even SB2404 (the Cullerton/We Are One Bill which found little favor by Speaker Madigan). In fact, there are surface similarities between issues arising out of Eminent Domain and the current arguments by legal teams defending the constitutional sanctity of pensioners facing PA 98-599 (aka SB1).
Under an “eminent domain” argument, legal teams (such as We Are One) have evoked the “Takings Clause” of the Illinois Constitution in defense of their claim that PA 98-599 is illegal and unconstitutional.
Private property shall not be taken or damaged for public use without just compensation as provided by law.
Illinois Constitution Article 1 s. 15.
The Attorney General’s team agreed with the accuracy of the quote but strongly denied the applicability of the clause to PA 98-599. Evidently contractual promises of income are not property for the Attorney General’s office.
(they) “fail to state a valid claim because the affected interests under the Pension Code do not constitute a private property interest protected by the Takings Clause, the changes in those affected interests do not result in a compensable ‘taking,’ the financial impact of these changes is a necessary consequence of the regulatory scheme established by the legislature, and those changes do not unreasonably interfere with investment-backed expectations.”
Meaning? In other words, because a pensioner will not receive it, it cannot be considered a tangible item to be justly compensated to begin with, nor does the loss of said non-item provide any greater injury than might be expected under normally acceptable adverse market conditions.
Such a response may seem confusing, perhaps fallacious. But the very argument for a state (or Lisa Madigan) to evoke its sovereign “Police Powers” is often an exercise in circular logic to begin with, and the argument to apply PA98-599 will be just that.
Augmenting those differences are the extremely pervasive, coercive, and injurious powers behind a desperate action like Police Powers.
“The revenue power of taxation and the land control power of eminent domain serve as scalpels of sovereignty, slicing away bits of human liberty in the name of public necessity; police power is sovereignty’s sledgehammer, pummeling the subjects into an orderly, if restricted, pattern of conduct ” (http://janda.org/b20/Lectures/Week 3/PolicePower.htm).
In her counter-arguments to Judge Belz, whether historically specious or carefully imbalanced, the Attorney General summons what is always the dogma of police powers: to bring about and assure the greatest good for the greatest number of people.
Of course, this is the basis for good government to begin with, and in the case of Illinois, that oath and responsibility has become so hijacked and bastardized that the Attorney General now finds herself in the embarrassing position of calling up the most malevolent of state powers to punish citizens in a specific class to “provide for” others.
In Illinois this action becomes tantamount to washing away a significant debt by claiming a benefit to the many.
But what may be good to the many is hardly known by Madigan or anyone else. The many not only includes only public servants. It may also include family members and dependents. It might include another person who holds contracts with Illinois who wants to see them regarded with some ethical or moral certainty. It may include shop owners or purveyors who deal with those whose pension provide income.
In fact, the “many” cannot be known. Even when used freely by an Attorney General.
In actuality, the “many” (as one can read over in her arguments) becomes the bottom line for a legislature frantic to avoid a bill of their own making.
A state government’s responsibilities include promoting the general welfare and the securing of the inalienable rights of those within its borders.
Make no mistake. Police Powers are exactly the opposite: A destructive and harsh coercion of a group or class or particular persons in the name of the many.