Oklahoma's Legislature has a history of passing unconstitutional laws

May 2—Oklahoma laws on worker's compensation, trains stopped on the tracks, liquor distribution and medication abortions all have something in common.

Local state and federal courts have found these laws, crafted by Oklahoma's Legislature, are partially or wholly unconstitutional, although some of the rulings are still under appeal.

The Oklahoma Legislature has a history of passing bills that are later struck down by the courts as unconstitutional.

Passing laws that are later overturned by the courts is not an issue specific to Oklahoma. Nor is the trend limited to the current Republican-led leadership at the state legislature.

But critics say the legislature sometimes knowingly advances unconstitutional legislation, which they argue is a waste of time and taxpayer money when Oklahoma's attorney general has to defend those laws in court.

One Capitol observer said the number of unconstitutional bills in the Oklahoma Legislature has grown in recent years, with more constitutionally questionable bills making it to the governor's desk.

"We've always had some unconstitutional legislation, but in recent years, and in this session in particular, we've seen that grow in volume," said Nicole McAfee, director of policy and advocacy for the ACLU of Oklahoma. "This year, we're seeing a lot of those sort of blatantly unconstitutional attacks on access to abortion care and attacks on protest rights advanced through the legislative process."

Republican leaders of the Oklahoma House and Senate said their chambers never knowingly advance unconstitutional bills.

Constitutionality is subjective, and the courts reviewing the legality of laws is part of the government's process of checks and balances, said House Speaker Charles McCall, R-Atoka.

"The Oklahoma House constantly discusses constitutionality in the legislative process and never knowingly advances anything unconstitutional," McCall said in a statement. "Constitutionality subjectivity is why coequal legislative, executive and judicial branches have existed for checks and balances in Oklahoma and democracies everywhere since ancient Greece."

Attorney General Mike Hunter's office does not track how much it costs for state attorneys to defend Oklahoma laws that wind up embroiled in court battles.

Because the lawyers defending state laws in court are on staff at the attorney general's office, their time spent on a case can't be tallied as easily as the billable hours of a private-sector attorney.

The Solicitor General's unit, which is made up of five lawyers, is typically tasked with defending state laws, said Alex Gerszewski, a spokesman for the office. Typically two or three lawyers work on a case defending the constitutionality of a state law.

Hunter's office does not keep records on how many state laws its attorneys have defended.

"I don't think there's any question that the legislature has passed unconstitutional legislation," said Senate Minority Leader Kay Floyd, a lawyer. Both Republicans and Democrats have done so, she said.

Floyd, D-Oklahoma City, has repeatedly sought information on how much it costs the attorney general's office to defend unconstitutional legislation, only to be told that information doesn't exist.

The U.S. Supreme Court has struck down at least six Oklahoma state laws, including in 1976, a law that allowed women age 18 or older to buy low-point beer while denying that privilege to men until they were 21, which the nation's high court found violated the 14th Amendment's Equal Protection Clause.

But lower courts have struck down more.

From 2006 to 2016, Floyd, doing her own research, found local courts struck down as unconstitutional nearly 30 Oklahoma laws.

Common themes included laws to restrict abortions and violations of the state's single-subject rule that stipulates legislation may deal only with one main issue.

One of the most notable examples was when the Oklahoma Supreme Court ruled in 2015 a Ten Commandments monument at the state Capitol, which was placed there with approval from the legislature, violated the state's constitution that prohibits using public property to benefit a "church denomination or system of religion."

Floyd suggested concerns about the constitutionality of legislation should be addressed early on in the legislative process, either with input from the attorney general's office or from a constitutional lawyer.

"It's bad for the state," she said. "It costs us money. It costs us reputation, and whatever we tried to accomplish with that bill, is not going to be accomplished."

The Oklahoma Legislature this year has advanced a slate of anti-abortion bills that critics say are blatantly unconstitutional.

Representatives from Planned Parenthood Great Plains and Trust Women say many of the anti-abortion bills that have advanced through the Legislature are specifically designed to limit access to abortions, which conflicts with U.S. Supreme Court rulings that legalized the practice.

"Again, the Oklahoma Legislature is focused on radical and unconstitutional legislation that will only be thrown out of the courts," said Julie Burkhart, founder and CEO of Trust Women. "I would rather they spend their time on restoring access to health care to Oklahomans than wasting time on restricting the ability of people to get safe and quality health care."

Trust Women operates an abortion clinic in Oklahoma City.

Oklahoma's GOP-led legislature has always pushed anti-abortion legislation, but some are optimistic that political shifts at the U.S. Supreme Court will prompt the court to re-evaluate its abortion precedents.

Gov. Kevin Stitt recently signed bills to revoke the medical license of doctors who perform abortions that are not medically necessary to prevent "irreversible physical impairment" or death of the mother and limit which physicians can perform the procedure.

Stitt also signed a "heartbeat" bill that would prohibit an abortion if a fetal heartbeat can be detected, which in some cases, can be detected as early as six weeks into a pregnancy — before many women know they are pregnant.

Any doctor who performs an abortion after a heartbeat is detected could be charged with homicide under the new law.

Asked about the possibility that Oklahoma faces legal challenges over these new laws, Stitt said, "we'll let the courts work out if any of those get overturned."

The heartbeat bill is one of the many unlawful and unconstitutional bills introduced this year that attempts to end abortion in Oklahoma, said Gloria Pedro, of Planned Parenthood Great Plains.

Former Gov. Mary Fallin vetoed legislation in 2016 that contained similar restrictions for doctors performing abortions, saying she did not believe it could withstand a constitutional challenge, Pedro said.

Citing the 10th Amendment, which talks about the government powers granted to the states, Sen. Julie Daniels, R-Bartlesville, who supported the "heartbeat" bill, suggested the U.S. Supreme Court overstepped its authority by legalizing abortion with its landmark Roe v. Wade decision.

"I do not have the authority to overturn that decision," she said. "I believe fully that it violates the 10th Amendment, so with the authority I have been given, I will work tirelessly to limit abortion in this state until the day comes that that wrongly decided decision is overturned and the authority for making these decisions about preserving life is returned to the states where it belongs."

Republican legislators also introduced bills to further regulate medication abortions, in which women early on in their pregnancies can take a regimen of two pills to induce an abortion.

Stitt also signed a so-called "trigger bill" that would prohibit abortions in Oklahoma if the U.S. Supreme Court ever overturns Roe v. Wade or Planned Parenthood v. Casey that established the constitutional right for women to seek an abortion.

There is optimism among those who oppose abortion that the U.S. Supreme Court, with its Trump-appointed conservative majority, will overturn its previous precedents on abortion, said Sen. Nathan Dahm, R-Broken Arrow. Specifically, conservatives want the court to overturn Roe v. Wade and allow states to further restrict abortions.

Dahm, who opposes abortion, cited the 1992 Planned Parenthood v. Casey decision as an example of when the high court reviewed its precedent on abortion.

"It is rare that the courts will change their precedents, but it does happen, especially when there are things that have changed in society," Dahm said. "Even in Roe v. Wade, (the justices) talked about how they would revisit it as technology advanced and as their understanding of life and conception advanced."

The discussion over unconstitutional legislation at the Oklahoma Legislature recently came to a head when Senate Pro Tem Greg Treat alleged a top priority for the Oklahoma House was unconstitutional.

Treat refused to hear in its original form a bill that sought to curb federal overreach and push back against the Biden administration by allowing Oklahoma's attorney general or a majority vote of the legislature to declare presidential executive orders unconstitutional.

Treat, R-Oklahoma City, called House Bill 1236 a clear violation of the separation of powers.

"Believe me, it would be much easier politically for me to let (HB) 1236 go to the governor's desk as is, beg him to sign it and know that the courts are going to throw it out, but to give people false hope is not what I'm here for," Treat said.

Saying the legislation seeks to assert Oklahoma's 10th Amendment rights, McCall, the House Speaker and one of the bill's authors, has defended the legislation supported by most House Republicans.

The 10th Amendment says powers not delegated to the federal government are reserved to the states. However, the Supremacy Clause of the U.S. Constitution states the federal constitution and federal law are the supreme law of the land and generally take precedence over state laws.

"Exercising constitutional rights is not unconstitutional," McCall said in a statement. "The bill codifies in state law the 10th Amendment rights granted to states under the U.S. Constitution and creates a method of evaluating certain federal actions at the state level."

Court rulings on the constitutionality of legislation can give state lawmakers guidance on what they can and cannot regulate.

For example, an Oklahoma City federal judge recently said a 2019 state law that prevented trains from blocking streets for longer than 10 minutes ran afoul of federal law. The ruling is under appeal.

"The bill itself was not ruled unconstitutional; the 10-minute requirement within it was," said McCall, who authored the legislation. "In the ruling, the judge found and affirmed states have the right to regulate train crossings. Should the appeal not succeed, the ruling gives the Legislature guidance to modify the 10-minute requirement to be consistent with the ruling."

Treat said since he has been the leader of the Oklahoma Senate, he has not allowed blatantly unconstitutional legislation to advance.

There may be laws that don't stand up in court for nuanced reasons, but Treat said he's unwilling to pass legislation that lawmakers know will not hold up in court.

"If I believe that something is inherently, on its face, unconstitutional, I have not given it a hearing," Treat said. "Or we have substantially changed it."

Even before HB 1236 advanced to the Senate, some legislators cried foul.

House Democrats argued the legislation is clearly unconstitutional because challenges to presidential executive orders and other federal actions are reviewed by the courts, not state legislatures.

It goes back to the fundamentals of government and the duties of the three branches of government, said Rep. Regina Goodwin, D-Tulsa.

"HB 1236 is a fine example of an unconstitutional bill," she said. "You didn't see this last session when President Trump was in office. You didn't see any of this concern then about the federal government and federal overreach."

Goodwin is among legislative Democrats that have tried to track how many pieces of Oklahoma legislation have been found to be unconstitutional.

According to Goodwin, from 2010 to 2013, 14 laws were found to be unconstitutional — amounting to less than 1% of the bills that became law during that time period.

Goodwin can also rattle off a list of more recent laws that have been overturned by the courts.

She pointed to legislation from 2019 that would have required the most popular wine and spirits brands be made available to all wholesale distributors, which ran counter to State Question 792 that allowed wine and spirits manufacturers to pick and choose their distributors.

Also overturned was State Question 755, which banned the use of Sharia law in state courts. The legislature referred the measure to the ballot where it passed with 70% approval.

The Oklahoma Supreme Court also found a 2011 tort reform law that placed a legislative cap on damages for pain and suffering to be unconstitutional. Then-Gov. Fallin signed the measure into law despite concerns from some that the legislation was unconstitutional.

"It's a way to continue to stir the pot when they know it's unconstitutional," Goodwin said of the GOP majority in the legislature. "They kind of pass these bills with a sneer and a smile."

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