Friday, April 15, 2016

Is Hutchinson's line-item veto scheme legal?

Posted By on Fri, Apr 15, 2016 at 9:50 AM

click to enlarge ASA: Wants to save Obamacare through line-item veto. - BRIAN CHILSON
  • Brian Chilson
  • ASA: Wants to save Obamacare through line-item veto.

You've read here that Gov. Asa Hutchinson and his legislative leaders have cooked up a scheme to get the Obamacare Medicaid expansion approved with some procedural maneuvers.

The deal: The Medicaid budget will be amended to kill Arkansas Works, Hutchinson's new brand for the Obamacare expansion. The money is kept in the appropriation bill for all state medical services, however. The bill gets approved. The Terrible Ten who opposed Obamacare will have voted for a bill that kills Obamacare, knowing that when it reaches Hutchinson, he'll line item veto the provision killing Obamacare. The legislature can't come up with a majority to override the veto. Obamacare lives. The Terrible Ten claim they won.

It is one way to skin a cat, though I think it sets a poor precedent for future business. But .... is it legal?

An observer points me to a couple of past attorney general opinions on line item vetoes. These opinions have no force of law. But they are products of legal research unburdened by the partisan considerations that guide that office these days.

This is what the Constitution says about vetoes:

The Governor shall have power to disapprove any item or items of any bill making appropriation of money, embracing distinct items; and the part or parts of the bill approved shall be the law, and the item or items of appropriations disapproved shall be void, unless repassed according to the rules and limitations prescribed for the passage of other bills over the executive veto.

A 1997 opinion by Winston Bryant said a governor couldn't line-item veto a portion of an education appropriation that year. The analysis turned on whether an item vetoed "can be fairly characterized as setting aside or dedicating funds for a specified purpose, or whether instead it imposes a condition, limitation, restriction, or other proviso on the expenditure of the separately appropriated funds." It seems you could argue the Arkansas Works killer amendment is more of a limitation, rather than a specific appropriation. The 1997 opinion notes the Arkansas law lacked precedent for guidance. But the 1997 opinion said a governor couldn't veto a restriction without also vetoing the appropriation.

Then, in 2001, the attorney general was asked about a veto in a Finance and Administration appropriation. Bryant again noted the lack of precedent for guidance. Again citing similar rules in other states and their construction, he wrote:

The general view in this regard is that the governor cannot veto provisions in an appropriation which act as a qualification, condition, or restriction on the appropriation without also vetoing the entire appropriation itself. 
He also wrote:
As pointed out in Masciocchi, The Item Veto Power In Washington, 64 Wash. L. Rev. 891, the rationale for what is termed this “narrow view” is that “removal of conditions and restrictions supplants the governor’s intent with that of the legislature in violation of the separation of powers doctrine.”
Of course, we know from public comments that the governor's intent is to pass Obamacare while giving opponents a fig leaf. But, under well-established Arkansas law, the only gauge of  legal "intent" is the plain language of the law. It doesn't matter what's been said in legislative debate, by the governor or by anyone else.

The Arkansas Supreme Court is the ultimate arbiter, presuming somebody like the anti-Obamacare Koch political organization sued to overturn this scheme if it passes. You'd have to like the chances of the law being upheld, given growing court deference to the legislature. But the past  attorney general's opinions illustrate the core flaw of this little scheme. When you have to stand the law on its ear to pass a law — all to cater to 10 tyrants — you haven't exactly distinguished yourself.

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