JUDGE ASSUMES POWER OF LINE-ITEM VETO

The state of Missouri has lost another round in the Kansas City courtroom of U.S. District Judge Fernando Gaitan. At issue is the question, a perennial one in recent years, of whether the state budget must send funds to Planned Parenthood, which is Missouri's largest abortionist. This is an issue solely because Mel Carnahan, the most pro-abortion governor in Missouri history, insists on funding Planned Parenthood, a key early backer of his campaign.

Heavy, bipartisan majorities of the General Assembly have voted in recent years to deny such funding. Last year, Judge Gaitan struck down the Legislature's work, ruling that the state couldn't constitutionally deny funding to Planned Parenthood. When a bipartisan group of state lawmakers sought to intervene and appealed to a federal appeals court, that court ruled they lacked the requisite legal standing to be in court. Owing to the fact that Attorney General Jay Nixon largely failed to defend the state statute, lawmakers were out of luck.

With that bitter experience in mind, key lawmakers arranged for special outside counsel to be hired by the attorney general to ensure that state statutes -- duly passed by the General Assembly and signed into law by the governor -- would be defended against the inevitable court challenge. Round one, then, has ended with precisely the same result as last year.

Jordan Cherrick, the state's special counsel, is appealing to the 8th Circuit of the U.S. Court of Appeals. Cherrick says Judge Gaitan's decision "has supplanted the will of the Legislature. ... We think the issue here continues to be whether the Missouri Legislature has the right to spend taxpayer money the way it sees appropriate."

Cherrick is right, of course. Missourians watch in dismay as, year after year, the order of a single judge usurps the unambiguous judgment of the elected representatives of the people. What can this be called but the creation, effectively, of a line-item veto for a judge?

Our Missouri Constitution hands judges no such power. This is a principle worth fighting over. If the appellate court agrees with Judge Gaitan, it is vital that Cherrick appeal all the way to the U.S. Supreme Court.