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If the Legislature does it, does that mean it's not illegal?


Sitting in the Senate Republican caucus meeting Wednesday as elected lawmakers openly talked about defying the Kansas Supreme Court if it closes schools next month, it was hard for people of a certain age not to think back about Richard Nixon and Watergate.

At the height of that scandal, a federal judge ordered the White House to hand over hundreds of hours of tapes of conversations in the Oval Office that had been secretly recorded. The White House refused and appealed to the U.S. Supreme Court.

The Nixon White House had never been particularly forthcoming with information, and the people there had little apparent respect for the authority of any other branch of government to tell them what they could or could not do, up to and including the secret bombing of Cambodia.

So there was naturally great concern about how Nixon would respond to a Supreme Court order to hand over the tapes — tapes that everyone knew would lead to the search for the proverbial "smoking gun" that would bring Nixon down.

As the political tension reached its zenith, the question being asked in American living rooms throughout the country was, "If the president of the United States doesn't have to obey a court order, why should anyone else?" It challenged the very fundamental American notion that no person is above the law, not even the president.

Former President Richard Nixon, right, listens to questions by David Frost during Wednesday night, May 5, 1977 telecast interview. Interview took place in rented house in South Laguna, Calif, near the former President's home in San Clemente. (AP Photo/Ray Stubblebine)

Former President Richard Nixon, right, listens to questions by David Frost during Wednesday night, May 5, 1977 telecast interview. Interview took place in rented house in South Laguna, Calif, near the former President's home in San Clemente. (AP Photo/Ray Stubblebine)

Ultimately, the only power any court has is the power that the public agrees it has. Its power is based on the shared public acceptance that its rulings, however much one might disagree with them, must be obeyed. Day in and day out, that sentiment generally goes unquestioned in Kansas and across the country.

It was a constitutional crisis in the truest sense of the term. In the end, though, Nixon did turn over the tapes, which did produce the "smoking gun." Whatever support he had left in Congress by that time suddenly evaporated, and before the week was out Nixon had resigned.

Later, during a series of interviews with British TV host David Frost, Nixon gave this bone-chilling assessment about his view of presidential power: "When the president does it, that means it is not illegal."

"By definition?" Frost asked. "Exactly, exactly," Nixon replied.

Frost was asking about the president's power to order covert intelligence operations, both at home and abroad, in the interests of national security. And Nixon's response reflected the kind of expansive view about presidential power that historian Arthur Schlesinger Jr. had described in the title of his 1973 book, "The Imperial Presidency."

The Kansas Senate prepares for the final day of the 2016 legislative session on Wednesday June 1, 2016 at the Kansas statehouse in Topeka, Kan. (Chris Neal/Topeka Capital-Journal via AP)

The Kansas Senate prepares for the final day of the 2016 legislative session on Wednesday June 1, 2016 at the Kansas statehouse in Topeka, Kan. (Chris Neal/Topeka Capital-Journal via AP)

Fast-forward to the present and Wednesday’s Senate GOP caucus meeting.

"Eventually, we're going to have to stand up to this court and let them know that we are the Legislature, they are not the Legislature. Capitulating with them is, I think, a poor strategy and would continue to be unsuccessful," said Sen. Jeff Melcher, of Leawood.

"We are the appropriators. We are the policymakers. End of discussion," said Sen. Julia Lynn, of Olathe.

"We're going to listen to a court that can't even follow the law?" asked Sen. Greg Smith, of Overland Park. "They have one job, and one job only, and that is to reason and listen to the evidence and make an opinion. And that's all it is, an opinion. They can't tell us what to do. They can opine, and that's the end of their authority."

In the Nixon era, the fear was that his expansive sense of presidential power could erode the power of the other branches, along with public confidence in them. The president, after all, is a citizen like everyone else. If Nixon could defy the court, why couldn't anybody?

Likewise, if taken to their logical extreme, the comments of those legislators Wednesday might lead one to ask: If the Legislature doesn't have to obey a court order, why should a divorced parent who has been ordered to pay child support? Why should any debtor who has been ordered to repay his creditor?

It seemed that the only thing missing from Wednesday's debate was for someone to stand up and say, "When the Legislature does it, that means it is not illegal."

Burdett Loomis, a Kansas University political science professor and an active Democrat, said it's not unreasonable to think that Kansas is witnessing the emergence of an "Imperial Legislature."

"It does strike me that the Legislature thinks that whatever it does should not be questioned," he said. "And it’s even broader than that. They think they represent the state, so if they want to not enforce federal laws, or reach down to the local level and tell localities what to do, all wisdom resides in the state and the state Legislature."

Loomis, who worked briefly in Democratic Gov. Kathleen Sebelius' administration, said the trend became noticeable after Brownback and his conservative allies swept the 2010 elections in Kansas, wresting control of the Kansas House from the coalition of Democrats and moderate Republicans who had formed an effective governing majority. And it was sealed two years later when conservatives purged the Kansas Senate of most moderate Republicans in the 2012 GOP primaries.

In some ways, Loomis said, what Kansas is seeing now goes beyond what America saw in the Nixon White House.

"I think in the end, it was the legislative branch that came to Nixon and said, you’ve got to go. It was Nixon defying the court in every way," he said. "Here you’ve got both the governor and the Legislature. The governor could have stepped up and demanded the Legislature confront the issues before it. But he was unwilling and they were unwilling."

Brownback so far has not said whether he will call a special session later this month to deal with the school finance issue. And even if he did, it remains unclear whether the Legislature can muster the votes to pass a bill that would satisfy the court.


Phillip Chappuie 1 year, 11 months ago

Jeff Melcher,Julia Lynn, and Greg Smith apparently slept in Government class. The court clearly finds that the formula being used does not meet the standard as prescribed by the State of Kanas Constitution. Pretty simple. I think those legislators are in violation of their own prescribed oath of office. Justice Nuss should cite them for contempt and jail them. Nixon nothing, it reminds me of Worcester v. Georgia.

Calvin Anders 1 year, 11 months ago

But who do they jail, Phillip? The whole legislature? Lock the whole bunch up together and then don't let them out until they come up with a plan that the Court agrees complies with Constitutional rules? It does seem a little punitive to the legislators who have been willing to work in that direction. On the other hand, I doubt it would take long for them to come up with a workable solution if they were all locked up. But I would only support the idea if Brownie has to be locked up too. Then if he decides to veto, everyone stays in the calaboose.

Wayne Roberts 1 year, 11 months ago

should lock them up for treason and send them to git-mo

David Books 1 year, 11 months ago

You cannot lock someone up for treason unless the Country is at war! Since technically we are not at war no charges of treason can be brought, Also, treason can only be applied at the Federal level.

Greg Cooper 1 year, 11 months ago

Being in contempt of a Supreme Court order could quite rightly be construed as malfeasance of office and is an offense punishable by imprisonment. This is so simple: lock em up in a big conference room, dress them in prison clothing, feed them prison food, and let them out when they comply with the Constitution as the law of the state. Nothing short of that.

John Williford 1 year, 11 months ago

I agree, but not just these few lawmakers, but every damn one of them. They have all failed the state in this matter. Maybe a few days in jail they will get back to work and understand they have to fund education, not gut it for tax breaks for corporations and the wealthy

Jim Kener 1 year, 11 months ago

You are 100% correct that Justice Nuss should cite them for contempt and jail them however they can not be held in contempt until they ignore his ruling by being in bad faith. For example if they vote to ignore his ruling then they would be in contempt.

Bob Forer 1 year, 11 months ago

I would love to see a constitutional show down with these imbeciles.

Bill Turner 1 year, 11 months ago

A KS constitutional show-down has already occurred - the legislature and govenor lost. That's the problem: they don't really care that they lost and they're testing the waters of public opinion to see if they can get away with flagrantly violating the resulting court order. The ultra right in control of the state legislature believes that they have a mandate to reduce the size of government at any and all costs, even if that means resorting to a reckless disregard for the principles on which the republic was founded.

Bob Forer 1 year, 11 months ago

Its not over yet. We are still waiting on the river card.

Doug Larson 1 year, 11 months ago

These goofball senators don't understand that they work for the taxpayer. They should follow the taxpayer's requests instead of following their own selfish agenda.

Greg Cooper 1 year, 11 months ago

Uh, Doug, I think the Regressives would argue that they are representing the state, as they won a "mandate" in the last few elections. I don't agree, but the argument could be made.

Doug Larson 1 year, 11 months ago

In Kansas, if the legislature does it, you can assume it's illegal.

Cheryl Nelsen 1 year, 11 months ago

Thank you for writing this story. I have been asking several people why the legislators can just ignore a court order. I can't do that, and legislators should NOT be above the law.

Cheryl Nelsen 1 year, 11 months ago

I'm curious, Peter Hancock about this meeting. Obviously you were in attendance. I read an AP story that said their reporter was not allowed in the meeting. Why?

Lynn Grant 1 year, 11 months ago

Sen. Greg Smith, the Supreme Court listens to the evidence and gives an opinion. These judges are not acting as mere people on a street voicing their opinion. Theirs are based on the Kansas Constitution not their own personal beliefs. They give their opinions as justices of the court, that is their part of the deal. When the Legislature decides they don' want to follow the Constitution then they are the ones breaking the law.

Michael Kort 1 year, 11 months ago

Comparing the Kansas Republican Legislature to Richard M. Nixon is a great insult to Nixons' name, even as low as Nixons' behavior stooped while in office .

Nixon was egotistical ( wanted to win LBJs war ), paranoid ( obviously, WaterGate ) and a race baiter ( he replaced the racist southern democrats with his eat crow southern republican party, as being the race bait players in charge ) ,.......but when did Nixon decide to put the government in the bath tub and deliberately drown it with debt and financial shortfalls, at the expense of the country, to play up to his political donors ?

You might not like the presidents past of this country and we all have differing politics with one of them or another but none of them ever deliberately threw the country under the buss to the extent that the Ks. republican legislature has done to Kansas .

Michael Kort 1 year, 11 months ago

Frankly, I think that the Kansas Supreme Court means well........ but I also think that the Ks..Supreme Court should have ordered the republican legislature to correct the situation by 6/30 ......or face contempt of court charges......and jail time,.......instead of threatening to shut down the Ks. Schools, which will be a reward to the desired ends of the republicans in the Ks. legislature .

Frankly the republican legislature is going to achieve their goal of getting government out of the business of public education and they will be able to blame that outcome, on the activist judges of the Ks. Supreme Court ( and not themselves ! ) . No schools ?.......NO PROBLEM !!!!....BECAUSE THAT IS OUR REPUBLICAN LEGISLATURES GOAL !!!!!

Larry Sturm 1 year, 11 months ago

I agree that the gorvernor and the GOP legislature should be held in contempt of court. they should have to stand in line on the statehouse steps and be finger printed and photographed and be put in jail.

Donald Shea 1 year, 11 months ago

Is denying a Supreme Court order a big enough crime to justify impeachment? We could only hope.

Or perhaps this will be enough to make a re-call election happen?

Greg Cooper 1 year, 11 months ago

Yes, it is (except it's a recall for legislators, I believe) and, no, it won't unless the citizens of this state are bold in their belief in right and wrong.

Larry Ripley 1 year, 11 months ago

What the hell do those egotistical, self-manipulating people think? That they have some special dispensation to lie and cheat and if needed, steal elections to make sure the folks who enrich their existence don't get to. Dumbasses on parade led by Senior Dumbass Torquemada!

Harlan Hobbs 1 year, 11 months ago

Even as a staunch conservative, I respect the decision of the Supreme Court. That is why we have a checks and balances system of government, or at least we are supposed to have that.

However, since the writer of this article and most of the posters want to bring up the name of Richard Nixon, I will bring up the name of Barack Obama. While I don't think there is a case yet where he has defied a Supreme Court decision (I could be wrong), the facts are that he has been overruled by the Supreme Court unanimously in some 19 or 20 cases thus far. Furthermore, he has refused to enforce laws that are on the books, such his administration's handling of "sanctuary cities."

Therefore, before you liberals begin pointing fingers, I would suggest that you practice what you preach, because you are seriously lacking in that regard.

Greg Cooper 1 year, 11 months ago

So, the old rule of playground justice takes on a the mantle of law? He did it so I did it? Kinda simplistic, don't you think, Harlan? Or, is that how you want our state to be run?

Armen Kurdian 1 year, 11 months ago

To put what Harlan said another way, anyone on this board who demands the President enforce the law and compel sanctuary cities to uphold federal statutes on immigration, or federal laws on marijuana, or demanded the Justice Department hold itself accountable on Fast & Furious, or demands that guys like Eric Snowden be held to account for his near-traitorous actions in violating all sorts of laws in the uncontrolled release of classified information, please continue.

Everyone else doesn't have standing or credibility to keep talking.

Greg Cooper 1 year, 11 months ago

See my response to Harlan. No difference. The law is the he law, court orders are court orders. Unless you guys can find a way to repeal the constitution we follow the law. Any questions?

Kelly O'Connor 1 year, 11 months ago

I don't think they should be jailed, I think they should be given bread and water for their last meal, then face a FIREING SQUAD.... I'm sure there won't be a problem assembling one...

Harlan Hobbs 1 year, 11 months ago

Typical moronic liberal comment. You better watch your back Kelly, because you could be next.

Harlan Hobbs 1 year, 11 months ago

By the way, thanks Armen for your additional clarification.

Greg Cooper 1 year, 11 months ago

Clarification? What was clarified, except your complete lack of understanding of constitutional law and procedure? Oh, yes, and characterization of opposite thought as moronic. That's pretty grown up.

Michael Kort 1 year, 11 months ago

Armen, Harlan,....the article is not about Obama but is about Republicans in the Ks. legislature & brownie who only represent the 1% and their "arrogance regarding the Supreme Court" and the mess that they have made out of the entire state of Kansas by refusing to do their job at any level, which is casually called refusing to manage state government .....or managing to bankrupt it deliberately, to achieve a libertarian goal of destroying state government for the selfish ends of a few .

Good luck on solving all of your problems with Obama . You might succeed at that.....someday.....but doing that won't fix the deliberately caused mess in Kansas, caused by continuing tax curt welfare given to LLCs' by Topekas' republican leadership . Tax welfare given to companies who either don't need it or who should be allowed to fail..... just like the too big to fail big banks, that are quickly becoming too big to bail out in the future .

Government does not need to do financial engineering for businesses, as in, where did the 330,000 LLCs come from to begin with ? Did they all just beam into Kansas from somewhere like the moon .....and if they did..... where are all the JOBS promissed in return for tax cuts that they knew weren't going to materialize, before this so called experimental tax cut scam, that has lead to more or less permanent large monthly budget shortfalls and a collapsing state government ?

Harlan Hobbs 1 year, 11 months ago

This comment was removed by the site staff for violation of the usage agreement.

Greg Cooper 1 year, 11 months ago

I'm interested in where you found me saying anything about Obama and the SCOTUS. I really am, though, happy to be one you take time to call names and swear at, as it seems I'm doing my constitutional duty by calling out silly, lame, uninformed comments.

Maybe, Harlan, you might take the time to actually read some of the comments that you disparage so much. Maybe you might use some of your undamaged brain cells to take an unvarnished look at reality and at how things really are in the real universe rather than in the fairy tale world created by the current brand of Republican.

That you feel much better after using the damaged cells you do use might be indicative of your ability to make rational decisions as to your political beliefs. I wish you well.

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