Georgia’s legislators may pass any law they wish — a ban on interracial marriage, for example, or a law against gun ownership, or a prohibition against Christians holding office — and no one may challenge them in any state court, reported the Atlanta Journal Constitution.
The state Attorney General’s Office takes that surprising argument before the Georgia Supreme Court in a hearing on the state’s “fetal pain” law. Citizens, the attorney general says, may challenge such laws in state court only if the Legislature has specifically granted them permission to do so.
As controversial as the “fetal pain” statute is — it bans almost all abortions after 20 weeks — the dispute has implications far beyond abortion law and could result in one of the most consequential decisions by the state’s highest court in decades.
At issue is the doctrine of sovereign immunity, rooted in the centuries-old English principle that “the king can do no wrong.” Sovereign immunity protects governments at all levels from being sued without their consent.
“The foremost principle governing the three branches of government is the system of checks and balances,” said Atlanta lawyer Don Samuel, who represents three doctors challenging the state’s “fetal pain” law. “Under the state’s argument, the Legislature, not the state Supreme Court, is the final arbiter of the Bill of Rights. It reverses who’s supposed to be in charge.”
State attorneys argue, however, that courts may not review challenges to laws when they have no jurisdiction to do so, and that’s the case here because the state has not given its consent to such a constitutional challenge.
“If the public interest in avoiding occasional harsh or unfair results outweighs the public interest in sovereign immunity, the people of Georgia through their representatives can waive (it) by legislative enactment,” the state AG’s office told the state Supreme Court.
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