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Prepare For World War III

By Greg L | 2 July 2014 | Virginia Politics | 5 Comments

Republicans managed to thwart Terry McAuliffe’s effort to unconstitutionally expand government, or so the party line goes.  Unfortunately, that’s not quite what happened, and such a viewpoint simply puts blinders on Republicans who don’t yet fathom just how difficult it will be to actually implement a budget this year.  Get ready for absolute chaos folks, because that’s what we’re going to be dealing with very, very soon.

To recap, after Republicans seized control of the Senate using the tried-and-true bipartisan Virginia political tactic of offering someone a bribe, they managed to do a pretty decent job of amending the budget in a way that would ensure McAuliffe didn’t have a loophole to use to expand Obamacare in Virginia.  McAuliffe completely screwed up what slim opportunity he had to apply intelligent line-item vetoes and managed find an opportunity to inanely break the law on several of them.  Then to make things even more confused, Bill Howell, Speaker of the House of Delegates declared a legal finding regarding those vetoes that is entirely unsupported by any shred of law, although while it has vague tradition, cannot hope to withstand any judicial review.  Then, this legally flawed budget was transmitted to the Senate where instead of calling a timeout to resolve legal issues before this fuse was lit, passed the budget back to the Governor who let the legislative clock expire before the anyone could resolve these issues before the situation leered towards full nuclear meltdown.

This is going to be Christmas in July for every high-profile civil litigator in Virginia as the courts work overtime to untangle this absurd comedy of errors as the fiscal reality of a state government shutdown points its barrel right at the head of Virginia’s shaky economy.  At this point no one knows what is legal and what is not, what money can be spent, who is going to jail, or even if anyone has spending authority right now.

A lot of ink has already been spilled about how Terry McAuliffe demonstrated just what an incompetent rookie he is when it comes to governance.  The Republican party line hasn’t however even acknowledged that quite valid point that Democrats are raising that Speaker Howell does not have any legal authority to use the parliamentary rules of the House of Delegates as an authority to override the Constitution of Virginia.  Howell is not the Supreme Court of Virginia, and even though he was absolutely right in his analysis of what McAuliffe did, unless he’s in the judicial branch of government he is trashing the Constitution just as much as he is claiming McAuliffe has done.  By arbitrarily stripping away some of the line-item vetoes, the budget that was then transmitted to the Senate of Virginia is quite arguably a flawed document rendering every part of the legislative process from that point forward moot.  Had Howell declared the entire budget out of order and prevented the House from considering it, he would have been on more solid legal ground, although doing so would have been political suicide.  Effectively rewriting the budget he got from the Governor is an inane move lacking even a shred of legal justification.

With the expiration of the June 30th budget deadline and the next fiscal year starting yesterday on July 1st, McAuliffe hasn’t swatted back at this ball, and presumably the budget is enacted without the Governor’s final signature.  If McAuliffe is determined to question the legality of Howell’s extrajudicial ruling that would imply there is no lawful budget and his administration has no spending authority unless an argument can be made, which is possible, that the administration can continue to spend money for a few more months.  Should that happen, Howell will immediately contersue, arguing that even if his ruling was unconstitutional, so were McAuliffe’s line-item vetoes, but still there’s no budget.  The courts can’t invent that a budget exists in the interim when there isn’t one, so while all of this plays out the administration might not be able to pay for anything, not even the court personnel who would operate the venue where these legal hearings would supposedly happen.

What an utter disaster that would be.

So in the interest of good governance does McAuliffe roll over, accept what has happened and pretend that the budget is legally valid?  That doesn’t prevent anyone else with standing to file suit.  Can we afford to enthrone the Speaker of the House with sweeping legal authority he doesn’t posses by abeyance, making it ever harder to fix that constitutional issue in the future?  Do we ever establish a framework for dealing with unconstitutional budgetary actions by a sitting Governor that doesn’t result in fiscal brinksmanship?

So far all these questions are temporarily being deferred, hoping that a delicate balance of mutually assured economic destruction isn’t upset by any one of the hundreds of overinflated egos in Virginia government who aren’t happy with some aspect of this mess.  It’s like putting a hundred Delegate Joseph Morrisseys armed with AK-47’s in a legislative chamber, each with a penchant for sticking their fingers on triggers while distracted by visions of underage employees and waiting for any one of them to get excited and pull the trigger as they carelessly wave these firearms about.  Someone is going to get shot, and the only question is how soon it’s going to happen.

It’ll be the Virginia political equivalent of World War III, and it can happen anytime.

UPDATE: I am not entirely clear as to what the Governor’s options are with the budget once he gets it back from the Senate after their consideration and what the deadlines are.  Howell made darned sure the finalized budget was transmitted to his office as soon as possible in order to ’start the clock’ as quickly as possible, and that ‘clock’ may refer to Virginia Constitution Article 5, Sec. 6(b) which would provide seven days for his review.  That seven days would expire on June 30th, which seems consistent with what actually happened.  Governor McAuliffe did not take any action on the budget within that time period beyond whining to the media, which does not appear to be a legal tactic that produces any results.

UPDATE 2: I’ve learned that McAuliffe actually signed the budget before he transmitted his line-item vetoes to the House.  Now there’s an opportunity to further muddy the legal waters.  Were any of the line-item vetoes legally valid?  Of those that were, how many were legally improper or unconstitutional?  Did the failure of the House or Senate to affirmatively override vetoes it did not consider mean that they stand from a Constitutional standpoint?  Did the Speaker’s parliamentary ruling unlawfully prevent the application of the Constitutionally-defined process of the General Assembly to consider the Governor’s vetoes?  Is the budget legally enforceable, and will the administration abide by it?  And of course, out of the hundreds of potential plaintiffs that could raise any or all of these questions in court, which is going to be the one to do so, and what will happen?  What a complete mess.

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  1. Jeanine Martin said on 2 Jul 2014 at 9:23 pm:
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    Didn’t Terry pack up and leave the state on vacation? So the budget takes effect without him?

  2. Stephen Spiker said on 3 Jul 2014 at 8:40 am:
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    Leading up to the veto session, I thought I had read that it was the clerk of the House’s job (Nardo) to rule the line-item vetoes out of order, not the Speaker’s. Isn’t that what happened back in the 90s?

    I’m curious why it didn’t happen this time, and if there’s really much of a functional difference between the Speaker and the Clerk.

  3. Greg L said on 3 Jul 2014 at 10:47 am:
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    In previous cases it was the clerk that made these determinations, so it is curious that Howell took this upon himself, but both of them only draw their authority from the rules of the House instead of any provision of law as far as I can tell. Those rules could have changed as they do every two years and put more authority on Howell. It’s hardly unknown that a politician would try to gather additional power, although it probably was a convenient thing in the past for the clerk, who effectively is serving at the pleasure of the Speaker anyways, to take responsibility for procedural rulings that might be controversial.

    In this case having Howell saddled with the responsibility for the decision as well as the longstanding authority to direct it would seem like a bad political move. He can’t point the finger at someone else if this all goes south as he could have if Nardo was the one publicly making the call.

    I have to wonder if it became clear that Nardo wouldn’t do it for some reason, and Howell didn’t have a choice.

  4. Stephen Spiker said on 3 Jul 2014 at 8:07 pm:
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    Or Howell wanted to grandstand and make a power move against a suddenly weakened Governor.

  5. Charles said on 12 Jul 2014 at 8:58 pm:
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    While I think the arguments here are flawed, one minor point is probably more easily noticed.

    If a veto was illegal, the house and senate cannot legally act on it. If they voted on it and failed to “override” the illegal veto, what would the result be? Would their action make legal what was illegal? certainly not. Would an override of an illegal veto be a valid override? No, because you can’t override something that legally doesn’t exist — even though the result would be the same as if the illegal veto didn’t exist.

    But if the veto is illegal, ignoring it is a valid action. Otherwise, any Governor could simply make up illegal vetoes on everything they didn’t like, and force court action that could drag out for months.

    You suggest this is coming anyway, but it isn’t “worse” because of the action of the House — if there is court to come, the House ruling the veto out-of-order, and continuing the process with that ruling, just sets the foundation for a lawsuit on a more favorable ground. To wit — the last actions were the legislature acting on a signed budget, overriding some vetoes and not others.

    That probably puts the imputus on the Governor if he wants to protest, to file a suit arguing that his veto was valid. If the house/senate had voted, then the Governor would by default be able to treat his veto as legal, and the house/senate would have to sue to stop him.

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