This is an interesting development because ti goes against the commonly argued point that the specific language in the Texas Constitution makes it less likely that there is confusion about what the document means, at least as compared to the relatively short U.S. Constitution. Obviously this is an area where this is not the case.
- Click here for the proclamation listing the line item vetoes.
- Click here for the letter from the LBB challeging the vetoes.
The LBB argues that line item veto authority is limited to appropriations - actual spending - not to "riders" contained in the budget.
Here's a description of the controversy from an article in the Texas Tribune:
At issue are budget "riders" — directions to state agencies that are included in the budget but that do not actually make any appropriations. The LBB cited a 1975 opinion from the Texas Supreme Court that said governors have the power to veto appropriations, but not riders. And it cited an opinion from the Texas attorney general that recalled that court decision and that concluded that a particular rider was not an appropriation. Abbott was the AG at the time.
“Appropriations may be made by the Legislature and may also be vetoed by the Governor; the power of the veto is to prohibit a withdrawal of funds from the Treasury,” Parks wrote. “It does not extend to vetoing the Legislature’s intent and direction.”
The LBB is claiming that the governor is encroaching on legislative power by broadly interpreting the following part of the Texas Constitution - from Article 4 which establishes the power of the governor:
The Texas Constitution, Article 4, Section 14: If any bill presented to the Governor contains several items of appropriation he may object to one or more of such items, and approve the other portion of the bill. In such case he shall append to the bill, at the time of signing it, a statement of the items to which he objects, and no item so objected to shall take effect.
The line item veto only applies to spending, not to content which directs an activity. Some of the vetoed activity did not involve the appropriation of funds. This argument was solidified in a 1975 decision by the Texas Supreme Court - Jessen v Bullock. The governor's office disagrees with the assessment arguing that just because the LBB uses the term "rider" it does not mean that the item is protected from the activities of the governor.
- Click here for the governor's response.
From a Texas Tribune article describing the governor's actions:
By listing specific amounts in descriptive “riders” and as “informational items,” they argue, the budget writers are trying to keep the governor out of the detailed sections of the budget.
"According to all of the relevant legal authorities — including the Texas Supreme Court’s landmark decision in Jessen v. Bullock — the Governor may veto any language in an appropriation bill that (1) sets aside a sum of money (2) for a particular purpose," they wrote. "Each of Governor Abbott’s line-item vetoes of the 84th Legislature’s General Appropriations Act easily satisfies that simple test."
The memo says Abbott’s vetoes fall within his legal reach, that case law proves it, that the LBB’s arguments are not based in law, and that to rule otherwise would threaten the separation of powers between the executive and legislative branches described in the U.S. Constitution.
“In the LBB staff’s view, the only relevant question is whether legislative budget writers intended for an item to be veto-eligible,” the memo reads. “Under that view, the LBB staff — not the Texas Constitution — unilaterally determine which budget items are eligible for veto. That gets the law exactly backwards. The Texas Constitution — not the LBB staff — determines the scope of the Governor’s veto power.”
I'm assuming this conflict will not go away soon. It may well end up back in the Texas Supreme Court which will have to determine where the line between the legislative and executive function is drawn.
For more:
- Showdown with a Strong Governor.
- Patrick Backs Abbott in Line-Item Veto Dispute.
- Analysis: The Kind of Review That Precedes a Makeover.
- Inside the dispute about Gov. Greg Abbott’s budget power.
