I’m about to make one correction to yesterday’s post about Governor Abbott’s showdown with the Lege, and I don’t want this one to get lost in the shuffle so I decided to highlight it here also.
After puzzling over the legal arguments, I’ve come to some conclusions about the ongoing showdown between Governor Abbott and the Legislative Budget Board. The substantive debate is interesting and has potentially serious implications. But making sense of the respective legal arguments is not for the faint of heart, so I’ll summarize my conclusions before I lay out my reasoning:
This is a separation of powers case. On the surface, the adversaries are Greg Abbott and Ursula Parks, the director of the Legislative Budget Board, and they’re tousling over the meaning of a phrase: “items of appropriation.” But the underlying issue is the balance of power between the legislative and executive branches of state government. Abbott is advocating for a broader interpretation of the governor’s line-item veto power. For him to prevail would mark an expansion of the governor’s power and an abridgment of the Legislature’s.
The governor’s interpretation is intuitively appealing, and his reasoning is analytically sound, in my view. Since the question may eventually be resolved in court, state law may eventually conform to his interpretation. After years of covering the Texas Attorney General’s Office as helmed by Greg Abbott, I think everyone should proceed on the assumption that facing off against the guy’s team in court is bringing a knife to a gunfight. Frankly, I’m a little bit nervous about publicly disagreeing with the governor’s analysis in this case, not because I fear retribution, but out of a slightly superstitious concern for being totally wrong in public. But it can’t be helped. The philosophical debate has been presented in the form of a legal question, which the comptroller, Glenn Hegar, has to answer. I can see why Parks’ analysis would strike the governor as obnoxious, but on closer inspection, the law she’s assessing is in fact obnoxious from a governor’s perspective, because it blatantly favors the Lege’s authority in the budget process. As it stands, in other words, she is correct.
And because this is a separation of powers case, I hope the Lege prevails if the question does end up in court. As the governor’s office has observed, citing Alexander Hamilton in the Federalist Papers, “legislatures are not infallible”; Lord, he wasn’t kidding. But governors aren’t infallible either. Candidly, I like Abbott. I think his gubernatorial administration is off to a strong start, and having been seriously spooked by the Texas Senate’s collective defection from the state’s core values, I want the governor to be as strong as possible: I’m counting on him and the Texas House to keep our great state on stable footing. At the same time, Abbott is among the top-flight Texas conservatives who have influenced my own thinking over the years in various ways. He really has only himself to blame for this example: I’m a sworn enemy of executive overreach. I’m relieved that Parks is right, because I’m rooting for the Lege. Nothing against Abbott, but any extension of his constitutional authority is an extension to all future governors of Texas, whoever they may be. And although Abbott is extremely popular among the legislators, they need to be careful here. Any power they concede now will be conceded permanently. They shouldn’t give the governor any power a Lege might want to use someday. And they shouldn’t give Abbott any power that they wouldn’t trust a Dan Patrick or Wendy Davis to wield; there came a pharaoh who knew not Joseph.
And with that, let’s tackle some lawyering.
Once again, the legal travails of Texas Attorney General Ken Paxton are dominating the state headlines. And once again, I’m feeling slightly disaffected: clearly, Texas Monthly should update its readers on the latest developments, but once again ,the developments are in tension with my concept of “news.”
The showdown between Greg Abbott and the Legislative Budget Board can be summarized as follows: this is a separation of powers case. And it’s a substantive and provocative case, to boot. To give a quick summary, the debate concerns Abbott’s line-item vetos to the state’s biennial budget, which the governor signed June 20th, after whittling it down by about $300m, mostly by cutting appropriations for state facilities.
Last month Ursula Parks, the director of the Legislative Budget Board, sent a letter to Glenn Hegar, the comptroller, arguing that a number of Abbott’s line-item vetoes exceeded his constitutional authority, and therefore were invalid. Briefly put, LBB’s argument is that although the governor can veto items of appropriation, he can’t veto the budget riders that direct portions of those appropriations for, say, a new parking garage; those line-item vetoes should be ignored, Parks says, and the comptroller should go ahead and release the funds as appropriated by the Lege. The governor’s office, naturally, disagrees. Their reasoning, as summarized in a brief memo written prior to the vetoes and detailed in the 62-page brief I mentioned Friday, is that the aforementioned budget riders are functionally equivalent to items of appropriation, and that the Lege is trying to use “magic words” to protect its parking garages and whatnot from the governor’s veto pen.
After puzzling over these documents, I think the LBB is correct, and also that I wouldn’t want to get caught in a courtroom fight with these Abbott attorneys. (I’ll explain why in a separate post, though.) First I’d like to deal with the side drama that was spurred by the substantive dispute. Ultimately, Dan Patrick’s adverse reaction to Parks’s memo tells us nothing about the constitutional question. But it does tell us something about Patrick.
Necessary context first: Per the Texas Constitution, the lieutenant governor is a statewide elected official, elected separately from the governor, whose office is part of the executive branch. In addition, Texas’s lieutenant governor is the president of the state senate. In some contexts, his role corresponds directly to that of the Speaker of the Texas House; Patrick and Joe Straus are, for example, the joint chairs of the Legislative Budget Board. In some respects, however, the lieutenant governor’s control over the upper chamber exceeds the speaker’s control over the lower one. In the House, for example, a pair of committees—Calendars and Local & Consent—schedule bills to be heard on the floor; Straus appoints the members of these committees, and can exert some pressure on them, but not to a despotic degree. The Senate has a quasi-corresponding intent calendar, but the lieutenant governor decides the order in which bills are heard on the floor, or whether they are heard on the floor at all.
This hybrid legislative-executive role helps explain why the lieutenant governor is sometimes described as the most powerful statewide official in Texas. It does not help explain Patrick’s inexplicable response to the LBB memo.