Judicial Funding and Taxation Mandates: Will Missouri v. Jenkins Survive Under the New Federalism Restraints?

Abstract

The judiciary frequently mandates costly institutional reforms to correct state and local governmental constitutional violations. This Article examines the unprecedented equitable power exercised by a federal district court in its oversight of a school desegregation remedial plan in Kansas City, Missouri at a cost exceeding $1.8 billion. The district court ordered taxation to ensure funding for the remedial plan and directed local authorities to disregard state law limitations that barred such taxation.

Dean Griffith criticizes the judiciary's disregard of remedial plan costs in devising institutional reforms. She proposes that courts apply a balancing test in the remedial process -- weighing both governmental interests, including fiscal constraints, and the need to remedy constitutional violations. The judiciary should evaluate the effectiveness of a proposed remedy as well. The mandated expenditures in the Jenkins litigation failed to improve test scores appreciably or to improve the district's racial balance by attracting a significant number of white students.

Challenging the assumption that federalism restraints do not apply to the judiciary's remedial powers, Dean Griffith argues that the Constitution's federal structure, separation of powers principles, comity precepts, and the Guarantee Clause limit judicial power to some extent. She points out that the Supreme Court's 1990 Missouri v. Jenkins decision upholding the district court's taxation orders lacks consistency with the Court's recent federalism rulings that have invalidated congressional acts viewed as excessively interfering with the operation of state governmental functions. Viewing judicial taxation orders as deeply intrusive upon state government and administration, Dean Griffith argues that such taxation should be foreclosed except when tax structure deficiencies cause constitutional violations to be plainly remediless. She rejects court-ordered taxation that is not authorized by state law as involving the judiciary in law making, a legislative function.