Monday, April 18, 2016

Are You SURE About that Governor?


So the Governor seems to think he is in a House of Cards episode where he can get around the 3/4th majority required to approve appropriations by a made-for-Hollywood convoluted scheme. First step is adding an amendment that kills funding for Obamacare's Medicaid expansion into the bill that approved it. That should peel off a couple of the ten Senatorial holdouts and the bill would be approved. Then his plan is to line-item veto the amendment taking out the funding, reanimating the funding that the amendment said was killed. Then his veto is not over-ridden and the bill becomes law, with the reanimated funding.

That is more like a Walking Dead episode, but still, try to focus here. By this plan, according to the actors playing the lawyers in whatever episode he imagines himself in, he can legally fund Obamacare's Medicaid expansion. He calls this Obamacare expansion by the misleading name of "Arkansas Works" possibly because that is what Kevin Spacey would do.

When asked last week if he was sure this use of his line-item veto power was constitutional, the Governor took the trouble to issue a strongly worded statement saying how completely confident he was that the scheme was constitutional. Here is one of his statements:

"I have vetted it and feel totally comfortable with it," he said. "The constitutional language is clear. I have a history of all the exercises [of the line-item veto]. I've talked to legal counsel. I don't think there's any question about it." Hutchinson said he has also walked through the strategy with the Bureau of Legislative Review. "I don't think there's any room for doubt there," he said.

I added the bold print, but that is an actual quote from the Governor. I have a little question here for our studio audience. When have you ever heard Gov. Asa Hutchinson speak in such absolute and definite terms about anything? Me neither. He is normally vague and squishy. So what does it mean when he is makes a definitive statement like this?

I think it means he is starting to realize that the truth is the opposite of what he says here. He is not comfortable he can pull it off. The constitutional language is not clear, at least not in his favor. There is a question about it. There is room for doubt there. He has made a huge mistake and has to find another way out.

Here is the section of the state constitution in question:

Article six, section 17

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.”

So the question ought to be if the section allows the Governor to line item veto any item in a bill making appropriations, or only any appropriation line item in any bill making appropriations? I think its the latter. The Founders never imagined un-appropriation language being added to an appropriation bill and then being line item-vetoed so that the canceled appropriation is re-animated. If confirmed this will be a new Executive Power in Arkansas, never before wielded.

Look, if you read only the blue sentence fragment above and stop reading there, then the Governor's position makes sense. But if you keep reading the red part it indicates to me that the Governor is not granted power by this section to line-item veto a non-appropriation item from an appropriation bill, only the appropriation items. How do I know this? Read the part in red where it specifies that the items of appropriations disapproved shall be void. The part in blue allows for two possible meanings, but the part in red clarifies their intent.

The Governor was meant to have line item veto power over the appropriations in appropriations bills. How can they write that amendment so that when it says "kill an appropriation" it is still an item that makes an appropriation? I ask that because that is the only kind of item that I see the Governor actually being authorized to line item veto in this section.

I believe the Governor has messed up big and he knows it. His House of Cards plan is not the way out for him. So I look for someone to offer another way out, perhaps in secret agreement with the Governor. That is different from legitimate attempts to compromise. Senator Alan Clark offered a legitimate attempt to compromise with a proposal to end new enrollments in the program while not cutting off those on it now until they leave due to some change in status.

Of course the other side is not interested in that kind of compromise. They are interested in SB 96 style-compromise. That is, the appearance of compromise which ends in them getting everything they wanted and you getting nothing. If that doesn't happen I would just as soon let the Governor have his way and then take him to court over it. If they care about the text (and prior AG opinions) the courts will rule against him.

******* UPDATE, CLARK and HESTER seem to be working on the same plan, one that may be very different from any of this. Details tomorrow, we hear, *******************

I noticed Senator Bart Hester offered a proposal on the heels of Clark. I would like to see the details, but so far I am dubious. From what I have heard, it looks like the SB 96 of the special session. I hope I am wrong but here is why I write that: It would "cap" enrollment but allow new people to enroll as old ones drop off- thus resulting in no cut to the program and maybe even more growth depending on where the cap is. It would also kick the can on funding but that is not the same thing as defunding. In the end we would have to fight the same battle all over again.

1 Comments:

Blogger Mark Moore (Moderator) said...

Sure enough, today the news comes out they are going to change the language because of legal concerns.... http://www.arktimes.com/ArkansasBlog/archives/2016/04/19/arkansas-works-backers-propose-language-to-shore-up-legal-concerns-about-line-item-veto-strategy

8:49 AM, April 19, 2016  

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