Governor Terry McAuliffe signed Executive Order 65 on Friday directing Virginia executive branch agencies to enact the budget in accordance with each of the five item vetoes he returned to the General Assembly on April 28.
In the executive order, McAuliffe said a move by the House of Delegates this week to disregard his vetoes represents a dangerous legislative overreach that is inconsistent with the plain language of the constitution and the courts’ interpretation of the Governor’s veto authority.
The text of the order:
Article V, Section 6 of the Constitution of Virginia vests in the Governor the power to veto certain items within any appropriation act. This is an essential power which permits the Governor to prevent legislative overreach and maintain fiscal discipline for the Commonwealth. Since the Supreme Court of Virginia decided Commonwealth v. Dodson, this power has “undoubtedly” included the ability to veto entire “items or unconstitutional provisions” in appropriation bills. 176 Va. 281, 310 (1940).
On April 28, 2017, I signed HB 1500 (the Budget Bill) with a communication of five item vetoes related to cybersecurity public service scholarships, the settlement of Medicaid claims, the expansion of the Virginia Medicaid program, new conditions on funding for the Secretary of Transportation, and funding for the Virginia Coalfields Economic Development Authority. In addition, I noted that certain language in Item 125, which would authorize the Comptroller to withhold funds from the Virginia Economic Development Partnership until it met certain conditions as approved by specific General Assembly members, was unconstitutional and unenforceable. On May 3, 2017, the Clerk of the House of Delegates indicated that he would not publish two of my five item vetoes, those related to Item 306 JJJ.4 and Item 436, considering them invalid under the Constitution of Virginia.
Frustrated by my successful veto of 120 of their bills, General Assembly members have resorted to legislating through the budget, using the appropriations power to change existing law in Virginia. This is an abuse of legislative power and a violation of the Constitution of Virginia. Moreover, the House Clerk’s refusal to publish actions taken by the Governor is a profound abuse of authority, purporting to endow an unelected ministerial officer with some extraconstitutional power to override the Governor’s vetoes based on his own legal opinions. This is entirely improper, and it must be addressed in a manner reflective of the seriousness of the issues involved—keeping Virginia’s fiscal house in order.
Accordingly, I will use my authority under the Constitution of Virginia and as the Chief Planning and Budget Officer of the Commonwealth to bring clarity to Virginia’s budget.
Executive Agencies to Recognize Item Vetoes
As of the date of this Order, all Executive Branch agencies are hereby ordered to recognize and abide by the item vetoes I submitted to the Clerk of the House of Delegates on April 28, 2017, the date the newly-enacted budget became effective. All of these actions were legal, valid, and within the constitutional authority granted to the Governor under Article V, Section 6 of the Constitution of Virginia. Moreover, the provision in Item 125 that delegates to three members of the General Assembly the power to decide whether money is appropriated to the Virginia Economic Development Partnership or not is clearly unconstitutional and unenforceable. I append to this Order a copy of the communication of my actions to the General Assembly, which constitute the final action on the current biennial budget.
All language stricken by my vetoes, including Item 306 JJJ.4 and the additional language purportedly added to Item 436, are null and void, and of no legal effect whatsoever. Additionally, as noted in my communication to the House, I consider Item 125.R.3 unconstitutional and unenforceable, and I order the Comptroller not to abide by its terms.
Virginia House of Delegates Speaker William J. Howell (R-Stafford) released the following statement Friday following the signing of Executive Order 65:
“Unlike the final budget bill which was passed by an overwhelming majority of both chambers of the legislature and signed by the executive, executive orders do not carry the force of law. The idea that an executive order can supersede the Constitution, decades of Supreme Court precedent, and longstanding legislative practice is nonsensical. This is the culmination of four years of executive overreach, disregard for the law, and contempt for a duly elected branch of government by this governor.
“The Clerk’s actions were consistent with past practice under both Republican and Democrat speakers with both Republican and Democrat governors over the past 21 years. The Supreme Court is abundantly clear about the limits of the governor’s line-item veto authority and there is no doubt Governor McAuliffe exceeded that authority.
“Nonetheless, with or without this veto, the governor lacks the authority to expand Medicaid under Virginia law. In a 2014 analysis, nationally-recognized constitutional law experts Paul Clement and Erin Murphy concluded that, “Whether to extend Medicaid coverage to individuals who do not fit the current statutory requirements established by Virginia law is a quintessential legislative decision. Nothing in Virginia statutory or constitutional law empowers the Governor to make that decision unilaterally, let alone to execute that decision without the requisite appropriation of funds from the General Assembly. [T]here is simply no constitutional path for the Governor to expand Virginia’s Medicaid program without obtaining the requisite authority and appropriation of funds from the General Assembly to do so.” A full copy of that analysis can be found here.
“The General Assembly not only will vigorously defend its prerogatives and closely scrutinize any gubernatorial actions, we will take any and all actions necessary to ensure that the budget law is enforced as passed, signed, and printed by the Keeper of the Rolls of the Commonwealth.”
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