14 Urb. St. & Loc. L. Newsl. 1 (1990-1991)

handle is hein.journals/stlolane29 and id is 1 raw text is: 





             Missouri v. Jenkins:

Taxation Without Representation

      or Remedy of Last Resort?
                   By Patricia J. Whitten
  The judiciary ... has no influence over either the sword or the purse, no
  direction either of the strength or of the wealth of the society, and can take
  no active resolution whatever.
         The Federalist, No. 78, at 523 (A. Hamilton) (J. Cooke ed. 1961)
  The Congress shall have power to levy and collect taxes ...
                     U.S. Constitution, Article 'I,  8, cl. 1
  The power to tax involves the power to destroy.
      McCulloch v. Maryland, 17 U.S. 316 (1819)
  A court order directing a local government body to levy its own taxes is
  plainly a judicial act within the power of a federal court.
  Missouri v. Jenkins, 88-1150, 58 U.S.L.W. 4480, 4486 (April 18, 1990)

  In a decision hailed by civil rights advocates and
assailed by those interested in more limited judicial
authority, the U.S. Supreme Court ruled in April that
federal judges can force local officials to raise taxes
to remedy school desegregation. (Missouri v. Jen-
kins, 58 U.S.L.W. 4480 (April 18, 1990).)
  There was, not unexpectedly, an immediate outcry
and media focus on this case, with its proponents
indicating that it sets a precedent allowing judicial
taxation. However, to many who are more familiar
with this area of practice, particularly with school
desegregation litigation, Missouri v. Jenkins repre-
sents a logical-though quite significant-extension
of the court decisions preceding it. In the view of
some, it is also a necessary step in light of the obsta-
cles in the path of remediating constitutional viola-
tions including the high cost of remedies and the
reluctance of taxpayers to
fund them.                           In   th
  Missouri v. Jenkins is yet
another 5-4 decision of a    Message from the C
philosophically divided Su-  Supreme Court Wa
preme Court. Authored by     Section News .......
Justice Byron R. White, who  Washington's Laby
was joined by Justices Bren-   Ways ............
nan, Marshall, Blackmun,     New Canadian Env


and Stevens, the Court in Jenkins ruled that a local
government with taxing authority may be ordered to
levy taxes in excess of the limit set by state statute
where there is reason based in the Constitution for
not observing the statutory limitation. 58 U.S.L.W.
at 4486. The Court upheld the Eighth Circuit Court
of Appeals's decision finding that although a district
court judge could not directly order a tax increase to
fund desegregation, the judge could order a school
district to increase its tax levy and could set aside
state constitutional and statutory limits on local taxes.
Background Facts
   Thirteen years ago, the Kansas City, Missouri,
 School District and a group of black school district
 students filed a suit against the state of Missouri for
 operating a segregated and allegedly inferior public
                     school system. The district
issue                court realigned the school
                     district as a codefendant and
r .................. 2  found that the system was in-
................... 3 deed segregated. After years
................... 5 of litigation, the district court
ine                  determined that the state and
................. 10 the school district were 75
mental Law ...  14        (Continued on page 16)

Section of Urban, State and Local Government Law

Vol. 14, No. 1, Fall 1990

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