Obama Citizenship

Report: State Legislatures May Not Override Governors on Stimulus

By Phil

According to the Kansas City Star, the Congressional Research Service scheduled a report to be released today (3/18) that may cause some on Congress to re-think trying to “commandeer” State legislatures to be able to override Governors if that Governor chooses to reject some or all of the stimulus.

Currently, Govs. Mark Sanford of South Carolina and Rick Perry of Texas have stated that they’re rejecting at least some of the monies potentially due their respective States. However:

The report by the Congressional Research Service, the nonpartisan research arm of Congress, casts doubt on a key provision of the $787 billion stimulus bill that President Barack Obama signed into law last month, according to people familiar with the report, who couldn’t be named because they weren’t authorized to discuss it publicly.

The clause, aimed at bypassing governors who oppose using deficit spending to jolt the economy, authorizes a state’s legislature to apply for the stimulus funds if its governor fails to do so within 45 days of the stimulus measure’s Feb. 17 enactment - by April 3.

Exactly what is this clause? To date, Human Events did a great job covering this issue:

SEC. 1607. (a) CERTIFICATION BY GOVERNOR — Not later than 45 days after the date of enactment of this Act, for funds provided to any State or agency thereof, the Governor of the State shall certify that: 1) the State request and use funds provided by this Act , and; 2) funds be used to create jobs and promote economic growth.

(b) ACCEPTANCE BY STATE LEGISLATURE — If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.

As far as South Carolina’s legislature is concerned, here is their push-back:

The South Carolina Senate Finance Committee voted 18-3 on Tuesday to pass a measure authorizing the state General Assembly to seek the stimulus funds if Republican Gov. Mark Sanford fails to act.

The Congressional Research Service report raises concerns that such a move by the legislature could usurp Sanford’s executive power.

Unless a State’s constitution specifically states such (and what State in the Union is going to allow the Legislature to “go around” the Governor except in the case of an executive veto?), by what right does the federal government instigate a potential behavior? Apparently, Rep. Jim Clyburn (D-SC), the originator of the provision, seems to think that Congress has this authority:

South Carolina Rep. Jim Clyburn, the third-ranking Democrat in the House of Representatives, who crafted the controversial bypass clause of the stimulus bill, said that there’s no doubt about congressional intentions.

“It’s up to the courts to decide constitutionality,” Clyburn said. “The law is clear, and the South Carolina legislature has already begun the legislative process to draw down desperately needed stimulus funding if the governor doesn’t act.”

And while Gov. Sanford had contacted the White House over being able to use some of the funds towards State debt versus needs stated in the bill (which was subsequently rejected by the Administration, due to the fact that the federal government can put “strings” on said monies), the question is one concerning the Tenth Amendment:

The report doesn’t conclude that the stimulus provision is unconstitutional, but says there are legitimate concerns.

The report’s analysis focuses in part on the 10th Amendment of the U.S. Constitution. That amendment, part of the Bill of Rights, codifies the principle of federalism and delineates the separation of powers between states and the federal government.

Sanford said that he has discretion over $700 million of stimulus funds for South Carolina, which is slated to receive $8 billion overall, including $2.5 billion in tax cuts, $1 billion in extra Medicaid payments and $463 million extra to build and repair roads and bridges.

Should this issue be taken to the Judiciary (as the dear Representative effectively dares the States to do), and if Section 1607 is deemed to be unconstitutional, does that mean that the entire Act gets struck down? After all, this Section has a direct bearing on how the rest of the Act is implemented.

Could this be the first shot across the bow of this Administration with respect to States’ rights?

-Phil

Full post as published by The Right Side of Life on March 18, 2009 (boomark / email).