The Mississippi Supreme Court’s recent decision proclaiming that legislators do not have standing to challenge the constitutionality of a governor’s partial veto could have “real world” consequences, said state Sen. Hob Bryan, D-Amory.
Bryan has a unique historical perspective on the issue. He was one of three legislators in the 1990s to file a lawsuit challenging whether then-Gov. Kirk Fordice had the constitutional authority to veto parts of multiple appropriations and revenue bills.
In that case, the Supreme Court said individual legislators did have standing to bring such lawsuits. In a December ruling, the Supreme Court said the court got it wrong in the Fordice case.
“The holding in Fordice granted any individual legislator the right to challenge vetoes…This finding was erroneous,” Chief Justice Michael Randolph wrote for the majority in December.
During oral arguments on the case in November, Randolph seemed to suggest it should be “the aggrieved party,” not individual legislators, filing a lawsuit. By aggrieved party, he was referencing entities that would not receive funding because of a partial veto.
In the most recent case, Gov. Tate Reeves issued partial vetoes totaling $8 million (two separate items) in a large bill that provided funds to various entities to battle the COVID-19 pandemic. He signed the rest of the bill into law. Based on Randolph’s comments made during oral arguments, the chief justice was surmising that those two entities not receiving the funds – not lawmakers – should file the lawsuit.
There are multiple reasons an entity might not want to sue a governor. Perhaps in the most recently decided case, the entities didn’t sue because they believed it wasn’t necessary, considering two of the most powerful legislators – House Speaker Philip Gunn and House Pro Tem Jason White – were doing so.
But regardless, Bryan points out that “in real world” scenarios, there might not be an aggrieved party to file such a suit.
The governor’s partial veto could be of language preventing an entity from receiving funds instead of language providing funds to an entity.
For instance, think of how things could have been different had the Legislature a few years ago placed language in the budget bill for the Department of Human Services preventing the agency from funneling money to a nonprofit that is now accused of misspending $94 million in taxpayer money in what has been described as the largest public corruption scandal in state history.
If the governor had issued a partial veto of that language, what aggrieved party would file the lawsuit?
The Department of Human Services wouldn’t file it, since the agency was the one wanting to funnel the money to the entity. In addition, Human Services reports directly to the governor. Its top leaders are appointed by the governor. It’s not likely that they would sue their boss.
“The Constitution says a governor can veto parts of appropriation bills,” Bryan said. “Some of these lawsuits will be good faith disputes where the governor has an expansive view of that language, and legislators have a narrow interpretation of the (partial veto authority) language.”
Bryan said it makes sense for the judiciary to settle those disputes. He said what was particularly troublesome in the most recent ruling was that the decision prohibited any effort to ask for a rehearing where some of those “real world problems” with the ruling could be revisited.
Another scenario that could prove troublesome is if the governor used the partial veto authority to strike language sending money to the judiciary for a program like drug courts. Could the judiciary that would be hearing the case file a lawsuit saying the partial veto was unconstitutional?
In the past, the Supreme Court has placed strict limitations on a governor’s partial veto authority. A governor could not veto so-called purposes or conditions of appropriations bills.
In other words, in the case of the drug court, the funding was sent to the judiciary with the condition that a certain amount of that funding would be spent on drug courts.
The most recent Supreme Court ruling seems to expand the governor’s partial veto authority. But it should be pointed out that Reeves’ partial veto was of an unusual appropriations bill since it sent money to multiple agencies. Normal appropriations bills send money to one agency that has the mandate to dispense those funds to various entities, such as drug courts.
It is reasonable to assume a future court could reach a different decision under different circumstances on a governor’s partial veto authority and limit it again.
But based on the most recent decision, there might not be an aggrieved party to challenge that authority.