In Ecclesiastes 1:9 it says “what has been will be again, what has been done will be done again; there is nothing new under the sun”.  The older I get the more I realize how true that is.  History does repeat itself and in my opinion the United States in 2015 is looking a lot like the young nation of Israel around 1300 B.C.  As citizens of the U.S. increasingly ignore the rule of law, it reminds me of the passage in Judges that says “in those days there was no king in Israel; every man did that which was right in his own eyes” (Judges 21:25). A great example took place in Helena last week during a hearing on the proposed rules for implementing Senate Bill 410 which allows tax credit scholarships for students who want to attend private schools.

In Montana nearly 2000 students drop out of school each year and the legislature in an attempt to stem the tide passed the legislation to give students who were struggling in a traditional public school a chance to find another school that might be a better fit.  It’s working well in other states so legislators thought why not give it a try here in Montana.  The teachers union opposed it of course, but that’s to be expected.  They oppose everything that falls outside of their “one size fits all system”, but despite the unions best efforts the legislature passed the bill and the Governor let it become law without his signature.  That’s when the trouble began.

The bill was then sent to the Department of Revenue whose job was to write the administration rules. The very first rule they wrote excluded all religious schools from participating.  As justification, they cited the Blaine Amendment in Montana’s Constitution that states that public monies may not be appropriated either directly or indirectly to any religious school.  The problem is these are not public monies.  Both the Montana and U.S. Supreme Courts have said in past decisions that tax money was never transferred from the private to the public sector.  By excluding religious schools the department has effectively excluded over 90% of the private schools in the state and all the private high schools in the state.

It was a terrible policy decision and it did an end-run around the legislature process but most importantly it was an enormous power grab by a small group of unelected bureaucrats.  It’s the perfect setup for our side to file a lawsuit citing the separation of powers.  Never mind the fact that the Supreme Court has already found tuition tax credits to be constitutional, the larger issue here is that agency level bureaucrats  in the executive branch have no authority whatsoever to determine the constitutionality of a law.  That’s for the courts to decide.  Back to ignoring the rule of law and every man doing what’s right in his own eyes, if this is allowed to stick then every agency in the state can decide which laws they will and will not enforce and the end result will be anarchy.  Frankly we expected this law to be challenged.  In nearly all of the 42 states that have school choice their laws have been challenged and those in favor of school choice have won.  School Choice is an issue whose time has come and when this goes to court, Montana will become the 43rd state to allow students to find their perfect educational fit.