Schwartz: It’s legal if we say it is!

Last week was a busy one, which explains why I didn't get a chance to see Treasurer Dan Schwartz's letter to the editor in response to my column of Dec. 2, 2015. In that piece, I questioned the propriety of regulations Schwartz's office wrote regarding the state's new Education Savings Account program.

To sum: I said Schwartz had no legal authority to issue "waivers" for a requirement in the ESA law that requires children to attend public schools for 100 days before they can take advantage of the program. (ESAs transfer the state portion of public school funding into an individual account that parents can use for textbooks, tutoring, tuition or other education expenses.)

Schwartz's reply was nothing short of breathtaking.

First, he agreed with me! "On the first [point, military waivers] he [Sebelius] may be technically correct," Schwartz admits. And when a public official says "technically correct," what he really means is that he can mount no credible legal argument in defense of his actions. This is definitely the case with Schwartz, whose justification for waivers is invented out of whole cloth.

"After hearing from members of military families, our office felt that if we can help, why not?" Schwartz asks. Well, perhaps because the law doesn't allow you to "help" by creating rules unauthorized by the Legislature. In fact, don't Republicans usually object when Democrats allegedly exceed the authority of the law and take unilateral executive action? Why should things be different just because Schwartz is a Republican and he's doing something that Republicans may agree with?

But that's not where Schwartz's moral and legal confusion is most acute. No, that comes a couple of paragraphs later, when he wrote this: "Moreover, our proposed regulations are subject to approval by the Legislative Commission, which should provide comfort that we are acting constitutionally."

What. The. Hell?

That's right: Republican Treasurer Dan Schwartz actually said that we should take comfort that the Legislative Commission — made up of state lawmakers — will approve his regulations, and that such approval will establish the program's constitutional muster! In other words, forget what the law actually says, if politicians on a panel say something is legal, then by God it is!

When is the last time you heard a Republican speak like that?

The statement is additionally ridiculous when you consider the Legislative Counsel Bureau — the lawyers who advise the Legislature and defend its actions in court — has opined that Schwartz's regulations exceed the legal authority of the statute that created ESAs. That's why this has become a controversy: In order to "bless" his regulations, lawmakers will have to ignore the well-reasoned advice of their own lawyers.

But wait, there's more. He assumes facts not in evidence — the law is silent as to the applicability of ESAs to children who are too young to meet the requirement to attend school (from 5-7 years old), but the Legislature must have intended to allow them to participate without the requisite 100-day requirement beause the money is there, right? He asserts that "the Legislative Commission has the final say on the matter," (it's more accurate to say the courts will have the final say on the matter, as Marbury v. Madison established in 1803 that "it is emphatically the province and duty of the judicial department to say what the law is").

And finally, he doubles down on his curious view of what makes a law legal: "In sum, the elected members of the Legislative Commission, not lawyers at the Legislative Counsel Bureau, have the final say. If they approve our proposed rules, then we have acted constitutionally."

This reasoning is nothing short of pathetic for a state elected official, for it neglects the very real possibility that elected officials (for a variety of reasons) might approve his regulations and yet still have acted contrary to the statute! At the very least, the Legislative Council Bureau has articulated good reasons for its opinion that the regulations don't comport with the statute. Schwartz, for his part, has essentially said he doesn't like the way the law reads, so he's going to make some tweaks.

Where have we heard that before? Oh, yes, from every Republican who thinks every executive action of President Barack Obama is unconstitutional. (And that includes, by the way, Attorney General Adam Laxalt, who is suing the president over executive orders on immigration.)

Now, there's a legitimate debate about whether the ESA program is a good idea or not. But that debate was had at the 2015 Legislature, and the opponents of the program lost. Fair enough. There's also a legitimate debate over whether the 100-day rule should be a part of the law. That debate was also had, and the rule was included in the final version of the law signed by Gov. Brian Sandoval. Again, fair enough.

But what's not acceptable is for Schwartz to make changes to the law not authorized by the Legislature or the legislation itself, and then to fecklessly declare that "if a few politicians say it's OK, then it is." It most certainly is not. We shouldn't be surprised that Schwartz supports the ESA law; he's made no secret of that. But we should all be surprised and disappointed at his willingness to admit such a shocking ignorance of what establishes a regulation as legitimate.