A modest proposal: surcharging

[J N Winkler]

Many state legislatures open their sessions this week, which calls to mind a policy idea I have been considering off and on for some time:  surcharging legislators for civil-rights-related bills which lead to adverse court judgments for the state.

Some of the controversial issues state legislatures have taken up in the past few years have related directly or indirectly to civil rights:

*  Abortion

*  Voter ID

*  Police treatment of immigrants

Many state legislatures have passed laws dealing with these issues which are blocked wholly or in part by injunctions handed down by federal courts, sometimes on unrelated constitutional grounds like pre-emption, but frequently also on the basis of possible impacts to protected rights.  Defending actions to block adopted legislation is expensive for state attorneys general, but since the funding for such legal work comes from the state general fund rather than the legislators who support the bills in question, legislators are in effect playing with other people's money and are free to act irresponsibly.  The entrenchment of term limits at the state level tends to make matters worse by allowing legislators to dodge accountability.  In the several years it takes for a civil-rights case arising from a new state law to work its way through the courts, the legislators responsible for it will either have retired or moved on to another elected office.

My idea for addressing this problem is based on councillor surcharging as formerly practiced in Britain.  Under the British system, a councillor (elected official in local government) who is found to have wasted public money is personally liable for the entire sum lost, even if this runs into the millions of pounds.

A system for surcharging state legislators might work as follows:

*  When the bill goes to the governor for signature, it is reviewed by an independent nonpartisan body (members appointed on Missouri Plan principles) which assesses its likely impact on protected rights and whether it is likely to be challenged successfully in federal or state court.  This body would have the ability to issue one of two judgments:  "Successful challenge probable" or "Successful challenge not probable."  Judgments would not be subject to appeal except in cases of gross misconduct.

*  If the bill is judged "Successful challenge probable," then the entirety of the legal costs to the state for defending it in state and federal court are passed through to an escrow account.

*  At the time legal proceedings in relation to the bill are declared finished (e.g., when the US Supreme Court has handed down a ruling), the review board judges the outcome "Adverse" if any portion of the bill as passed and as signed by the governor has been ruled unenforceable.  In all other cases the board rules "Not adverse."

*  If the litigation in relation to a particular bill has led to a result judged "Adverse," the escrow account is broken into equal shares for each legislator who voted for the bill.  (Legislators who voted against the bill or abstained are exempt from charges.)  Each share is charged to each Yes-voting legislator as a personal liability:  in other words, the legislator cannot use campaign or PAC funds to reduce the debt owed to the state.

*  Surcharging would not be retroactive:  in other words, no surcharges would be made in relation to legislation that was already law prior to the introduction of the surcharging system.

*  There would be a five-year statute of limitations (the period beginning with signature of the bill by the governor and ending five years after the entry into force of all provisions in the bill) for initiation of litigation to challenge a bill on civil-rights grounds.

*  Any holder of public office who has had a surcharge applied to him in a given state must pay the entire amount of the surcharge in full first before he becomes eligible to run for any public office in that state.

I believe this reform is workable, though it would probably need to be implemented through a referendum process since it is difficult to imagine a legislature voluntarily choosing to apply personal liabilities to its members.  As a constitutional reform I do not think it is any more pie-in-the-sky than, say, a single-subject requirement for bills or a radical drawdown of private business, both of which have been devised as antidotes to nineteenth-century abuses and have been successfully implemented in many states.  The review body responsible for examining new legislation would function somewhat similarly to the constitutional court in Germany, but by issuing judgments as to the probability of successful challenge rather than constitutionality per se, it would encroach to a lesser degree on legislative supremacy.

Thoughts?

[Duke87]

Needing to assess every bill for challenge probability is just creating even more bureaucracy and is thus wasting even more taxpayer dollars.

Though, you could probably implement a system of "make the legislators pay" (or, let's be fair, only the ones who voted yes - and the governor too, he signed it after all) without that. The question is whether you'd want to. You could end up preventing legitimate legislation that way.

Problem is, legislators themselves would have to pass such a law... you could make it a federal law and have it only apply to state legislatures, but then that's not really fair either, is it?


You also amusingly create the possibility of a legal paradox. If the law saying legislators have to pay is taken to court and overturned, do the legislators who passed it have to pay?

[oscar]

My instinct is that getting it to mesh with existing Federal and state law could be a challenge, or at least really complicated, and also affected by variations among the states in their constitutions and other legal structures.   Has some legal scholar, or even an eager-beaver law student (who can write for law reviews even before graduating or getting a law license), written about the former British practice and whether or how it could work in the States?

Also, why "formerly practiced in Britain"?  That would make me wonder about adopting something here that didn't last elsewhere.

[kphoger]

While I am confused by most political workings, and therefore some of your post, I don't think that the overruling of the federal courts should have any bearing on what laws a given state passes.  I guess what I'm saying is that the states' interests should be our primary point of concern, not the federal's.  If a state legislature is hesitant to rule on, say, abortion or illegal immigration for fear of it being determined to have wasted public monies, then they are in effect submitting themselves to the whim of the federal courts.

Take, for example, the state minimum wage in our state of Kansas.  For years, it was $2.65.  Now, with a federal minimum wage set higher than that, would it be considered of waste that they increased it to $7.25, which was still no higher than the federal minimum?  I would say no because, if the fed decided to abolish the federal minimum wage, then Kansas would have been left with $2.65, and businesses could legally drop their wages to below the former federal minimum.  Kansas' legislation to increase the state minimum, then, even though it had no practical effect, was in my opinion not a waste.

[oscar]

Take, for example, the state minimum wage in our state of Kansas.  For years, it was $2.65.  Now, with a federal minimum wage set higher than that, would it be considered of waste that they increased it to $7.25, which was still no higher than the federal minimum?  I would say no because, if the fed decided to abolish the federal minimum wage, then Kansas would have been left with $2.65, and businesses could legally drop their wages to below the former federal minimum.  Kansas' legislation to increase the state minimum, then, even though it had no practical effect, was in my opinion not a waste.

So Kansas won't have to spend a dime on legal challenges to how the state minimum wage is set, since (at least in Federal court) nobody can sue unless they can show that the difference injures them, and no injury is possible since the state isn't trying to stop people from paying more than the state minimum.

The OP's proposal would kick in only if a new state law conflicts with Federal law, such as if somebody can't obey both laws at once.  There's no requirement that state law mimic Federal law, or be as generous, so long as the difference doesn't make a difference (to paraphrase Mr. Spock). 

[J N Winkler]

My instinct is that getting it to mesh with existing Federal and state law could be a challenge, or at least really complicated, and also affected by variations among the states in their constitutions and other legal structures.   Has some legal scholar, or even an eager-beaver law student (who can write for law reviews even before graduating or getting a law license), written about the former British practice and whether or how it could work in the States?

I am not aware of any such investigations--most of the work I know of relates to the liability of officials in the executive branch (which gets into questions of sovereign immunity).  Legislators in general have it easy (aside from re-election) because we have more or less transposed the doctrine of parliamentary immunity.

Also, why "formerly practiced in Britain"?  That would make me wonder about adopting something here that didn't last elsewhere.

In Britain the system broke down in the case of Dame Shirley Porter.

http://en.wikipedia.org/wiki/Dame_Shirley_Porter

To simplify a rather long and complex story, Porter attempted to entrench a Conservative majority on the Westminster council by "packing" marginal wards (electoral districts) with likely Conservative voters.  This was done through housing assignments, since in Britain redistricting is handled by an independent nonpartisan commission rather than elected bodies.  (In other words, Porter had to move the voters; she could not move the boundaries to the voters.)  The policies Porter adopted entailed a significant amount of excess spending and this was the basis for her surcharge, which was initially applied by the District Auditor (an official somewhat similar to an American special prosecutor, who is appointed by the Audit Commission--an independent nonpartisan body--to supervise municipal audits).  The surcharge, which was £36.1 million initially, was increased through subsequent court judgments.  Dame Shirley, who is Jewish, avoided payment partly by transferring assets overseas and partly by moving to Israel for a number of years.  Eventually Westminster Council settled for £12.3 million.  Later, under the Labour government, the difficulties experienced in collecting on this surcharge led to its being abolished as a tool for disciplining wayward councillors.

In general I think many of the reasons surcharging failed in the Porter case (such as the ease of offshoring assets and so on) are local and specific to Britain.  We have the IRS and we also have worldwide tax liability for US citizens, so I don't think these reasons add up to good arguments not to surcharge US state legislators for activity that falls under the scope of moral hazard.

While I am confused by most political workings, and therefore some of your post, I don't think that the overruling of the federal courts should have any bearing on what laws a given state passes.  I guess what I'm saying is that the states' interests should be our primary point of concern, not the federal's.  If a state legislature is hesitant to rule on, say, abortion or illegal immigration for fear of it being determined to have wasted public monies, then they are in effect submitting themselves to the whim of the federal courts.

But state legislatures are already subject to the dictate of the federal courts--it is virtually guaranteed that any new enactment relating to abortion, voter ID, and immigration will be submitted to the federal courts for judicial review.  (Kobach's voter ID law is an exception that tends to prove the rule because it has been engineered specifically to evade civil-rights challenges:  there is provision for free ID for the indigent, and since Kansas is not a preclearance state, there is no opportunity for the federal government to become involved at an administrative level before lawsuits are filed.)

The real purpose of a surcharging mechanism is to ensure that the laws that are passed are tailored to the needs of the citizens of the state, rather than being used in effect as a way to provoke legal challenges (in federal court) in hopes that the subsequent chain of court rulings will culminate in a sweeping ruling in favor of the proponents' ideological position.  We see this going on right now with Kansas' broom-closet law for abortion clinics--no evidence has been shown that broom closet sizes have any bearing on the safety of procedures in abortion clinics; the real purpose of such laws is to drive abortion clinics out of state by making it almost impossible for them to carry on business.

Setting aside views on abortion in general for the moment, if abortion is to be banned or severely restricted, surely it would be much better for it to be done by Congress or through a constitutional amendment--both of which are reasonably direct expressions of the people's will--rather than through a majority of Supreme Court justices waking up one morning and deciding Roe v. Wade needs to be reversed?

Take, for example, the state minimum wage in our state of Kansas.  For years, it was $2.65.  Now, with a federal minimum wage set higher than that, would it be considered of waste that they increased it to $7.25, which was still no higher than the federal minimum?  I would say no because, if the fed decided to abolish the federal minimum wage, then Kansas would have been left with $2.65, and businesses could legally drop their wages to below the former federal minimum.  Kansas' legislation to increase the state minimum, then, even though it had no practical effect, was in my opinion not a waste.

The only form of waste this surcharging mechanism would seek to address are the legal costs associated with defending contentious bills having civil-rights implications.  State legislatures would still be free to make other types of mistakes which arguably lead to waste of public money.  There are many suggested recipes out there for curbing those forms of waste--e.g., relying on systematic cost-benefit appraisal rather than crude equity formulas for distributing highway construction funds--but I would not advocate a wholesale conversion to program budgeting.  State legislatures are a necessary democratic check on technocratic governance, and need the freedom to experiment with policies which may turn out to be wasteful whenever there is no strong a priori reason to think they may in fact be wasteful.

What the taxpayers of a given state do not need, however, is for the state legislature to put lawsuit bait on the line at their expense.

Taking the minimum-wage issue as an example, it wouldn't fall under a surcharging mechanism since it doesn't have a deleterious effect on a protected civil right.  The large majority of bread-and-butter issues state legislatures face would, in fact, not be affected.

Needing to assess every bill for challenge probability is just creating even more bureaucracy and is thus wasting even more taxpayer dollars.

Actually, no.  This assessment process goes on already within legislatures and also within attorney-general offices.  The main innovation would be to force legislators to put their money where their mouths are.

Though, you could probably implement a system of "make the legislators pay" (or, let's be fair, only the ones who voted yes - and the governor too, he signed it after all) without that. The question is whether you'd want to. You could end up preventing legitimate legislation that way.

There is some possibility of a chilling effect, but personally I doubt it would be large in practice because the really controversial enactments are reasonably easy to pick out.  Personally, I would have more concern about unintended consequences in types of legislation which conflate resource allocation decisions with civil rights.  For example, Kansas has an ongoing school finance controversy which has resulted in court decisions ruling various funding formulas unworkable because they discriminate against particular groups of students.  If a surcharging mechanism were not designed carefully to exclude these types of issues, it could lead to legislatures retreating from policy areas where their imperfect interventions are better than no state-level involvement at all.

Problem is, legislators themselves would have to pass such a law... you could make it a federal law and have it only apply to state legislatures, but then that's not really fair either, is it?

A constitutional amendment, approved by popular referendum, is one way around the problem of getting the turkeys to vote for Christmas.  There might be a slender constitutional basis for the federal government to get involved in state lawmaking along the lines of the existing preclearance mechanism, but this would not be a preferred solution because it encroaches on state prerogatives, and by its nature such a relationship would be antagonistic rather than cooperative.  I think we are much better off if the state legislatures clean their own houses, which--notwithstanding fashionable cynicism--they have already done in terms of the single-subject requirement for bills and so on.

[corco]

Wouldn't such a surcharge prohibit any sort of innovative law-making?

I can't think of any examples that both parties would openly support- but any drastic reforms (say (and this is just an example, not debating the merits of the actual idea),  a federal mandate to states to eliminate the word "marriage" from government documents and replace with "union" and allow any two consenting adults to unionize- making marriage strictly a church term) would be subject to strong scrutiny.

Maybe it would set the bar higher- requiring a constitutional amendment for anything in a constitutional grey area or where judicial precedent has not really been set.  I guess that's a good thing- if it's drastic maybe it should be held to a constitutional standard instead of a congressional standard. If we as a country want to ban abortion, fine (or maybe not fine- let's not debate the merits), but let's force it to be a directly constitutional issue instead of a legislative issue.

So yeah, I think I like that idea- but only if held to civil-rights related legislation.

[vdeane]

You might have to get rid of the idea of "standing".  As of right now, even if a law blatantly violates the constitution or civil rights, it can only be challenged by someone who has been personally harmed by it.  Moreover, since a law is presumed valid until the courts strike it down, if said law further affects said court proceedings, you get a catch 22 situation.  Finally, you have the problem that judges these days often rule in favor of political expediency rather than what's right.

[oscar]

You might have to get rid of the idea of "standing".  As of right now, even if a law blatantly violates the constitution or civil rights, it can only be challenged by someone who has been personally harmed by it.  Moreover, since a law is presumed valid until the courts strike it down, if said law further affects said court proceedings, you get a catch 22 situation.  Finally, you have the problem that judges these days often rule in favor of political expediency rather than what's right.

For Federal courts, that would require a constitutional amendment, since "standing" for them is woven into Article III, section 2 of the U.S. Constitition (specifically, the limitation of Federal courts' authority to "cases and controversies").  Also, standing is a quick and easy way of disposing of cases judges want off their dockets (most or all of the "birther" cases suffered that fate), which builds support for standing among busy judges.  While some judges would like to expand standing to enlarge their ability to wade into controversial issues, most don't feel that way, including a majority of the present Supreme Court. 

The standing rules may be different for state courts, depending on the language of particular state constitutions and other laws.  State courts can handle some issues of Federal law (heck, you can raise constitutional issues even when you challenge a speeding ticket), though enforcement of some Federal laws is reserved by those laws to Federal courts.   

[J N Winkler]

I don't see how the question of standing would come up in surcharging, because the process of surcharging is completely separate from federal adjudication of contentious civil-rights laws.  Parties seeking to challenge such laws in federal court would still have to develop standing as usual.  I don't think the mere fact that striking-down of a law might generate significant financial liability qualifies the legislators supporting it for standing as interested parties in the federal litigation.  If that were true, then I could become involved (in my own personal capacity) in a lawsuit between the EPA and a power company on the basis that any decision rendered in the case would have an effect on my utility bills.  I am not a lawyer, of course, but I was under the impression that standing is not handed out quite that indiscriminately.

[oscar]

I don't see how the question of standing would come up in surcharging, because the process of surcharging is completely separate from federal adjudication of contentious civil-rights laws.  Parties seeking to challenge such laws in federal court would still have to develop standing as usual.  I don't think the mere fact that striking-down of a law might generate significant financial liability qualifies the legislators supporting it for standing as interested parties in the federal litigation.  If that were true, then I could become involved (in my own personal capacity) in a lawsuit between the EPA and a power company on the basis that any decision rendered in the case would have an effect on my utility bills.  I am not a lawyer, of course, but I was under the impression that standing is not handed out quite that indiscriminately.

You're right that standing doesn't have much to do with surcharging.  The harder to establish standing, the fewer the potential legal challenges, and therefore the lower the potential costs for legal defense of dubious legislation.  True, dubious legislation unlikely to be challengable would not draw surcharges, but if the objective is only to reduce the state's legal defense costs, so what? 

[J N Winkler]

You're right that standing doesn't have much to do with surcharging.  The harder to establish standing, the fewer the potential legal challenges, and therefore the lower the potential costs for legal defense of dubious legislation.  True, dubious legislation unlikely to be challengable would not draw surcharges, but if the objective is only to reduce the state's legal defense costs, so what?

Let me quote a concrete example.  In Kansas we have the broom-closet law mentioned upthread, which has been challenged in federal court by (if memory serves) two of the three abortion clinics that still operate in the state.  The clinics have legal standing to file suit because they are directly affected by the broom-closet requirement; they may also be able to claim next-friend standing on the basis of their patients, since attempts to close down abortion clinics for reasons not directly or meaningfully related to the safety of the abortion procedure itself amount to an infringement of a woman's right to have an abortion.

The cost of defending the broom-closet law in federal court has to be borne by the State of Kansas, i.e., the Kansas taxpayer.

If a surcharging mechanism had been in place for the 2011 legislative session, when this particular law was passed, the legislators who voted for it would have known that if the law were contested in federal court, and struck down wholly or in part, then they themselves would be liable for the legal costs incurred by the state in these proceedings.  That would presumably make them less likely to pass the law in the first place.

(A surcharging mechanism would not necessarily be just a tool for outnumbered leftists to clobber a rightwing majority in a Republican-leaning state like Kansas--it would cut in the other direction by, for example, encouraging legislators to go slow on gun control.)

[agentsteel53]

broom-closet requirement

next-friend standing

any resemblance to actual English is purely coincidental.

[Scott5114]

I always thought it might be kind of a neat idea to keep the Constitution but have all of the statutes and codes expire at the end of a legislative session, or perhaps every 10 years or so. The idea being that when all the laws expire at once, the legislators have to debate and vote on the most important laws (those banning murder, appropriations bills, stuff like that) and they don't really have the time to get around to reinstating the onerous and outdated laws that aren't as important. Of course, then the law would always be in a state of flux, and people would probably use the hubbub around reinstating the new laws to slip in some stupid stuff anyway, so it probably wouldn't work.

[english si]

I can see having to pass a bill banning murder descend to being what is defined as a person - some will take the Declaration of Indepence's line that "All men were created equal and endowed by their creator with certain unalienable rights...life" and declare viability or, more likely, conception as when 'created' happened and thus have a right to life and the founders would have considered abortion murder, not something that a right to privacy protects. Others will take right-to-privacy allows unlimited access to abortion argument that a person is only a person if they are outside their mother fully. And then you have Sagen and others deciding that it doesn't count until there's a certain degree of intelligence and independence. It wouldn't suppress these arguements, it would just make them more important to sort out as you need a murder law on the books!

Back to surcharging - would you accept that it should take effect when federal government has acted unlawfully and outside their bounds? Thus if a congressman or senator brings about a bill that gets slapped down by the courts for being unconstitutional, they should get done for the cost of it. Or federal agencies - like the EEOC were found to have done this week?

Surcharging can't just be a way of punishing those who pass laws in states that contradict federal law, but also work the other way and punishing those in federal government who want to overstep the enumerated powers and trample states rights, or passing bills that deny some constitutional right. There's cases for both situations being looked at in courts, where (if the Fed Government lost) the same situation for surcharging comes up - Obamacare for the outside enumerated powers and DOMA for the denial of a constitutional right (though both cases have other constitutional arguments as well). In the UK, of course, Parliament can't pass an illegal law (well until recently they couldn't), hence why only local government officials could be done under surcharging. However the US is different and the Constitution is the highest authority.

[vdeane]

I don't see how the question of standing would come up in surcharging, because the process of surcharging is completely separate from federal adjudication of contentious civil-rights laws.  Parties seeking to challenge such laws in federal court would still have to develop standing as usual.  I don't think the mere fact that striking-down of a law might generate significant financial liability qualifies the legislators supporting it for standing as interested parties in the federal litigation.  If that were true, then I could become involved (in my own personal capacity) in a lawsuit between the EPA and a power company on the basis that any decision rendered in the case would have an effect on my utility bills.  I am not a lawyer, of course, but I was under the impression that standing is not handed out quite that indiscriminately.

You're right that standing doesn't have much to do with surcharging.  The harder to establish standing, the fewer the potential legal challenges, and therefore the lower the potential costs for legal defense of dubious legislation.  True, dubious legislation unlikely to be challengable would not draw surcharges, but if the objective is only to reduce the state's legal defense costs, so what? 

Actually it has everything to do with surcharging.  If people can't challenge the law due to lack of standing, surcharging won't have any effect now, will it?

[NE2]

broom-closet requirement

next-friend standing

any resemblance to actual English is purely coincidental.

It's abortion. Use your imagination.

[oscar]

I don't see how the question of standing would come up in surcharging, because the process of surcharging is completely separate from federal adjudication of contentious civil-rights laws.  Parties seeking to challenge such laws in federal court would still have to develop standing as usual.  I don't think the mere fact that striking-down of a law might generate significant financial liability qualifies the legislators supporting it for standing as interested parties in the federal litigation.  If that were true, then I could become involved (in my own personal capacity) in a lawsuit between the EPA and a power company on the basis that any decision rendered in the case would have an effect on my utility bills.  I am not a lawyer, of course, but I was under the impression that standing is not handed out quite that indiscriminately.

You're right that standing doesn't have much to do with surcharging.  The harder to establish standing, the fewer the potential legal challenges, and therefore the lower the potential costs for legal defense of dubious legislation.  True, dubious legislation unlikely to be challengable would not draw surcharges, but if the objective is only to reduce the state's legal defense costs, so what? 

Actually it has everything to do with surcharging.  If people can't challenge the law due to lack of standing, surcharging won't have any effect now, will it?

Yeah, but that's irrelevant if the purpose of surcharging is to discourage legislators from imprudently running up the state's legal defense tab.  Unchallengable legislation will not significantly increase legal defense costs ("significantly" because swatting aside challengers lacking standing is not a costless exercise).

[J N Winkler]

Actually it has everything to do with surcharging.  If people can't challenge the law due to lack of standing, surcharging won't have any effect now, will it?

If I understand your line of argument correctly, you are saying that a surcharging mechanism will not be a suitable deterrent for the legislators because any challenges to "bad" laws the legislators might pass would be dismissed (at relatively low cost) due to lack of standing.

My reply to this falls into two parts.  First, it is manifestly not true that all, or even a significant majority, of challenges to recent contentious laws have been dismissed for lack of standing.  There are still active lawsuits, e.g., against Arizona SB 1070, the Kansas broom-closet law, the Alabama immigration enforcement law, etc.  All of those legal actions have now progressed beyond the point where they could be dismissed for lack of standing except possibly at the appellate level.

Second, there is a possibility that a surcharging mechanism, instead of incentivizing legislators not to pass the contentious laws in the first place, might instead encourage them to wrap the controversial provisions in legal language which deprives potential challengers of standing.  I tend to agree that this is a concern, but in general it is very difficult to manipulate standing without also defanging the objectionable provisions.  The federal courts also have broad powers of review where civil rights are concerned and do not necessarily have to adhere to provisions governing standing in state law when those would deprive interested parties of their civil rights (which not only are guaranteed by the Constitution but are also, by and large, mirrored in state constitutions).

In regard to English Si's suggestion that surcharging, if adopted, should also apply to the US Congress, I agree that the principle is sound.  It is certainly true that Congress is the last major unreformed legislature in the United States and that there needs to be action to tamp down abuses like Congressmen being able to exempt themselves from laws against insider trading.

I think, however, that surcharging at the state level should be a higher priority because the Tenth Amendment reserves the police power to the states.  Since most of the contentious bills which might fall under a surcharging mechanism involve (alleged) abuses of the police power, the logical place to start is at the state level.

[vdeane]

I don't see how the question of standing would come up in surcharging, because the process of surcharging is completely separate from federal adjudication of contentious civil-rights laws.  Parties seeking to challenge such laws in federal court would still have to develop standing as usual.  I don't think the mere fact that striking-down of a law might generate significant financial liability qualifies the legislators supporting it for standing as interested parties in the federal litigation.  If that were true, then I could become involved (in my own personal capacity) in a lawsuit between the EPA and a power company on the basis that any decision rendered in the case would have an effect on my utility bills.  I am not a lawyer, of course, but I was under the impression that standing is not handed out quite that indiscriminately.

You're right that standing doesn't have much to do with surcharging.  The harder to establish standing, the fewer the potential legal challenges, and therefore the lower the potential costs for legal defense of dubious legislation.  True, dubious legislation unlikely to be challengable would not draw surcharges, but if the objective is only to reduce the state's legal defense costs, so what? 

Actually it has everything to do with surcharging.  If people can't challenge the law due to lack of standing, surcharging won't have any effect now, will it?

Yeah, but that's irrelevant if the purpose of surcharging is to discourage legislators from imprudently running up the state's legal defense tab.  Unchallengable legislation will not significantly increase legal defense costs ("significantly" because swatting aside challengers lacking standing is not a costless exercise).

I thought the point was to prevent the government from infringing on civil rights in any way, shape, or form.  Surcharging wouldn't strike down the unlimited detention of american citizens, for example (even ignoring the fact that that would be grandfathered in).

[J N Winkler]

I thought the point was to prevent the government from infringing on civil rights in any way, shape, or form.  Surcharging wouldn't strike down the unlimited detention of American citizens, for example (even ignoring the fact that that would be grandfathered in).

Nope--the form of surcharging I have outlined is intended to correct a specific type of abuse at the state level.  In general it is very difficult to legislate against all types of violations of civil rights because our conception of civil rights changes in time (e.g. reversal of Plessy v. Ferguson, repeal of DADT, etc.).

Indefinite detention of US citizens is a federal matter.  I am hoping that the Supreme Court will eventually strike down this element of the law.  For that matter, I would like to see state-secrets privilege abolished, Bradley Manning freed, etc.  I am not holding my breath for any of this.