The Northern Virginia Daily's Political Depot

A service for our readers outside the Northern Shenandoah Valley... a sampling of The Daily's political coverage, plus unofficial, 'reporter's notebook' stuff. And occasional dry humor...

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Location: Strasburg, Virginia

Thursday, June 08, 2006

McDonnell: Governor can't spend without budget

Attorney General Bob McDonnell has issued an official opinion today, in which he says that the governor has no authority to spend money without legislative action. Gov. Timothy M. Kaine has said he "won't let Virginians suffer" and will take action to keep core government functions operating if the legislature can't agree on a budget by June 30.

The following is the text of a news release from the AG's office:

Official Opinion of Attorney General Bob McDonnell on the 2006 Budget

Key Sections

The following sections are excerpted from today’s formal opinion of the Attorney General on the issue of authority to appropriate funds in the Commonwealth. You have also received the full opinion. [Which will be posted here as soon as I can upload the file--GS]

……It is my opinion that when an emergency exists, the Constitution does not expressly grant to the Governor authority to expend state funds when there are no existing appropriations made by law.

While the Governor does have certain implied executive power, such implied authority cannot overcome the sole and specific express grant of spending authority to the legislature. Thus, in order to prevent an unprecedented constitutional crisis, it is critical that the legislature immediately enact a 2006-2008 biennial budget or, in the alternative, enact short-term legislation authorizing ongoing spending for state services and obligations.

……The pragmatic interpretation would be to sanction a governor’s intention to act unilaterally upon the failure of the legislature to pass a budget to forestall a disastrous government shutdown. However, longstanding rules of statutory construction to resolve conflicts in laws do not permit such an interpretation. Such rules dictate that the specific law controls over the general. Thus, the implied plenary authority of the Governor to faithfully execute the laws does not overcome the specific, clear, and exclusive grant of authority to the legislature to make appropriations by law.

…..A budget crisis of this nature, with the looming possibility of appropriations directed by the executive branch independent of the legislature, is the result of a failure of legislative duty not contemplated by the drafters of the Constitution or previous legislatures

……It is not unreasonable to argue that Virginia’s founders would not have intended that the entire executive branch be thwarted by legislative inaction. However, the conundrum arises from the Constitution’s silence on this issue. The Attorney General must interpret not what the Constitution ought to say, but rather what it does say.

…..The Governor historically has exercised certain extraordinary spending authority in times of emergency, but the General Assembly contemplates and generally provides for such expenditures in the budget bill. The present situation is distinguishable since in the absence of immediate action by the General Assembly, there will be no enacted budget bill on which the Governor may rely for guidance or general authorization to spend. The Virginia Constitution is quite clear that “appropriations [are] made by law.”

Although the Governor may and should exercise certain powers to protect public health, safety, and welfare, I find no express or implied provision of the Constitution that suggests the Governor may order spending by executive order when there is no general legislative authority.

It is my opinion that the citizens of Virginia who ratified the Constitution believed the legislature would, without fail, appropriate funds for public health, safety, welfare, education, and other basic governmental functions required by constitution or statute. The Virginia Supreme Court has determined that the General Assembly has the duty to do so.

Thus, while the Governor may not authorize spending independently, the General Assembly has the constitutional obligation to appropriate revenues and cannot choose by inaction to abdicate its responsibility without risking unprecedented usurpation of legislative authority, lasting diminution in stature for the legislative branch, and extraordinary proceedings in the courts…….