Legislating from the executive branch

A recent judge’s ruling confirmed what should have already been obvious: Montana’s tax credit scholarship is neither a state appropriation of funds, nor is it up to the executive branch to determine who should receive it. Unfortunately, money that could be going to parents who want more choice is still at risk. Why? Because the special interests want an appeal.

Let’s first make something clear: when a person makes a donation to a scholarship fund, and then receives a tax credit for doing so, that money never belonged to the state. Any more than when I make a donation to Project Hope here in Columbus and later claim a deduction for it on my taxes. The state is offering nothing more than another opportunity for parents to access funding for their children’s education. And this money is definitely not being diverted from public schools since the individuals making the donations to begin with have optionality: they can choose to fund either, or both, public and private schools.

The law itself was pretty unambiguous, despite the complexity of the structure involved. But that didn’t stop the executive branch from writing rules that directly contradicted the intent of the law and limited ‘private schools’ to only non-religious institutions. To say that the legislature hadn’t considered the potential of the scholarships being used for this purpose is quite a grasp, but the president of the MEA-MFT, Eric Feaver, said exactly that.

When the legislators were polled after the agency created these rules, confirming what they believed they were voting for, his response was to question their motives: “How powerful is a post-legislative survey of intent?” Feaver asked. “It leads to corruption of the legislative process, indicating legislative intent after the fact.”

What is creating a rule in the executive branch if not ‘legislating after the fact’? Feaver goes further though, to say the judicial ruling has a “political flavor”, as if the rule that was created did not have any such flavor itself. Feaver then states this is a constitutional question that requires further appeal, without clarifying exactly what the constitutional question that remains unresolved actually is. All he really wants to do is remind us that his organization will fight tooth and nail to protect their interests to the detriment of students and parents who see more value in private education – a value that he recognizes, but then states they should try to find in a public school anyways.

But here is the real waste of time and resources: we have private individuals suing the state to get access to these funds. The state is defending the rule as written by an unaccountable appointed government bureaucrat. The state is not implementing the law as written by the elected legislative branch. And in the process, the state has to defend itself against its constituents, who are just trying to access to money provided by other constituents, to enforce a rule supported only by special interests.

Though this is clearly a school choice issue, the underlying problem is one of an executive branch run amok. They have lost their tether as to what their role is: executing and implementing the law as written and have now determined that they are also responsible for interpreting intent. This isn’t unique to Montana, as we see the NLRB having their way with rewriting laws, while the ACA gets adjusted every couple of months it seems. This needs to stop. The will of the people is voiced by the legislature, and it is time Gov. Bullock pulled in the reins on his branch of government and ended this madness.