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8/2/2005 Ten Reasons Why Key Doyle Vetoes Are Unconstitutional By Fred Wade There are at least ten reasons why the most important vetoes that Governor Jim Doyle made in the 2005-2007 state budget are unconstitutional, but they all have a common thread. The text, history, design and structure of the Wisconsin Constitution all make clear that legislation must be authorized and enacted by the Legislature in order to be a legitimate exercise of governmental power. The vetoes violate this fundamental requirement of the state Constitution by deleting words, digits and punctuation marks from the bill that the Legislature passed, in order to create new spending mandates that the Legislature did not authorize. It is as if someone found your checkbook on the street and decided to write checks on your account without your permission, except that these checks are written for amounts in the hundreds of millions of dollars. Four Examples: $2.15 Billion of Spending That The Legislature Did Not Authorize In section 9148 of the 2005-07 state budget (2005 Act 25, www.legis.state.wi.us), the Governor fabricated a new sentence from assorted words, digits and punctuation marks that remained after he vetoed other words, digits and punctuation marks. The new sentence reads, "The Department of Transportation shall transfer to the general fund from the transportation fund in the 2005-07 fiscal biennium, $427,000,000." In section 9155, the Governor cobbled together a new sentence that reads, "The secretary of administration shall transfer from the balances of the general fund an amount equal to $330,000,000 during the 2005-06 fiscal year and the 2006-07 fiscal year to any appropriation under section 20.255 of the statutes," which contains various appropriations for the Department of Public Instruction. Even more astonishing, in section 9255 of the bill, the Governor manufactured a new sentence that reads, "The secretary of administration may transfer moneys to any appropriation account or fund from the general fund." None of these sentences appear anywhere in the text of the 2005-07 budget bill that the Legislature passed and authorized to become law. Governor Doyle used the same technique, in section 1669d of the 2003-05 state budget (2003 Act 33; www.legis.state.wi us.), to create an annual appropriation of $703,000,000 that the Legislature did not authorize. By the end of the current biennium, these four vetoes will result in the spending of more than $2.15 billion of public funds that the Legislature did not authorize to be spent, for purposes that the Legislature did not authorize to be funded in that manner. Ten Reasons Why the Vetoes Are Invalid Here are ten reasons why the Governor's vetoes are unconstitutional: One. The Wisconsin Constitution provides that "the legislative power shall be vested in a senate and assembly." Wis. Const., Art. IV, section 1. This unambiguous grant of power is the Wisconsin version of the bedrock principle of American democracy that the people have a fundamental right to make their own laws through their representatives in a legislative assembly. The Wisconsin Supreme Court has repeatedly held that this grant of power gives the Legislature the "power to declare whether or not there shall be a law; to determine the general purpose or policy to be achieved by the law; [and] to fix the limits within which the law shall operate." See e.g. State v. Nusbaum, 59 Wis. 2d 391, 440 (1973). Under these circumstances, governors plainly have no legitimate power to create legislation or appropriations of money that the Legislature did not authorize. Two. The Wisconsin Constitution is explicit in requiring "all laws of the state" to have an enacting clause, which declares that "the people of the state of Wisconsin, represented in senate and assembly, do enact as follows." Wis. Const., Art. IV, section 17. However, it is evident, on the face of the vetoed budget bills, that the Legislature did not authorize or enact any of the provisions that are cited above as examples. If the representation of the enacting clause is to be honored, it follows that governors cannot have any legitimate power to stitch together the words, digits and punctuation marks that remain after their vetoes of other words, digits and punctuation marks, for the purpose of creating provisions that the Legislature did not authorize. If this were not so, the representation of the enacting clause would be rendered false and misleading whenever vetoes might be used to fabricate provisions that the Legislature did not authorize, just as the signature on your check would be a misrepresentation if someone found your checkbook, made out a check to his or her favorite charity, and then signed your name to that check without your permission. Three. The Wisconsin Constitution contains an unambiguous command that "no money shall be paid out of the treasury except in pursuance of an appropriation by law." Wis. Const., Art. VIII, section 2. In this context, the Wisconsin Supreme Court has defined a "law" as "an act of the Legislature which has been . . . properly authenticated by the presiding officers of the two houses and approved by the Governor to become effective as a rule of conduct when published." "A rule of conduct" that does not appear in the text of the bill in the form that it was "authenticated by the presiding officers of the two houses" is a rule that cannot be a "law," because it is not been authorized to be a law by the joint approval of the Senate and the Assembly. Four. In 1998, the Wisconsin Supreme Court reaffirmed the fundamental principle that the state Legislature "clearly has the appropriation power." Flynn v. Department of Administration, 216 Wis. 521, par. 60 (1998). The Court added that "the executive branch is prohibited from unilaterally reallocating an appropriation." Id. at par. 30. In this context, the Wisconsin Supreme Court has defined an "appropriation" as "the setting aside from the public revenue of a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object, and no other." Id. at par. 29. Yet, despite the clear commands of the Constitution that are set forth above, and the Supreme Court's definition of an appropriation, each of the four examples that the Governor fabricated with vetoes was designed for the express purpose of appropriating public funds in a manner that the Legislature did not authorize. Five. The structure of the Wisconsin Constitution establishes a separation of powers by allocating the legislative, executive and judicial powers to three different branches of government. This structure of separated powers was designed, among other things, to assure that the bicameral Legislature would perform the core constitutional function of giving or withholding "the consent of the governed" to proposals for legislation. It reflects the founding principle of our nation, as stated by the Declaration of Independence, that governments derive "their just powers from the consent of the governed." When a governor uses vetoes of words, digits and punctuation marks to create legislation that does not have "the consent of the governed," as expressed by "the people of the state of Wisconsin, represented in senate and assembly," the result is plainly a violation of the Constitution's separation of powers. See Wis. Const., Art. IV, sections 1 and 17. Six. The legislative history of the constitutional amendment that created the partial veto power in 1930 contains no evidence of any intent, on the part of anyone, to give governors the power to create legislation that the Legislature did not authorize. Instead, the 1930 Amendment was adopted in response to the Legislature's use of omnibus appropriation bills, which had forced governors, either to veto an appropriation bill "in its entirety and to forgo the good the legislation would accomplish, or to accept and approve the bad with the good." Kleczka v. Conta, 82 Wis. 2d 679, 697 (1978). As a result of the 1930 Amendment, "appropriation bills may [now] be approved in whole or in part by the governor." Wis. Const., Art. V, section 10). The intent was to give governors the power to reject one or more separate "items" of legislation that the Legislature had authorized to become law as part of a single appropriation bill, while approving one or more of the other "items" that the Legislature had included in the bill. The drafter of the Amendment, the sponsors of the Amendment, and the voters who ratified it, all proceeded on the premise that partial approval of an appropriation bill would leave one or more "items" of legislation that had been authorized by the Senate and the Assembly, and then concurred in by the Governor. No one anticipated that vetoes might be used to create provisions "that the Legislature did not consider, let alone enact." See Risser v. Thompson, 930 F. 2d 549, 554, cert. denied, 502 U.S. 860 (1991). Seven. As noted above, the Constitution expressly limits the partial veto power to acts of whole or partial "approval." Webster's Third New International Dictionary (2002) defines the word "approve" as "to judge and find . . . acceptable" or "to express . . . agreement with and support of . . . ." These dictionary definitions presuppose that governors will "accept" and express "agreement" with whole items of legislation that authorize a particular rule of conduct or an appropriation of money, as distinguished from individual words, digits and punctuation marks that are incapable of stating any rule of conduct, or of appropriating "a certain sum of money for a specified object." Under these circumstances, it is evident that a governor cannot "approve" an item or appropriation that does not appear in the text of a bill that the Legislature has passed, because the executive cannot "accept" or "express agreement" with something that does not exist anywhere in the text of a bill that the Legislature has passed. Eight. The limited scope of the partial veto power is also reflected in the Constitution's use of the word "reject" to describe what a Governor may do when he does not "approve." Wis. Const., Art. V, section 10). Webster's Third New International Dictionary (2002) defines the word "reject" as "to refuse to . . . adopt . . . acquiesce in . . . [or] accept." The Constitution's use of the word "reject" makes clear that the partial veto was intended to be a negative power to prevent an item or an appropriation that the Legislature has authorized from becoming a law, pending the possibility of a veto override, and not a grant of an executive power to create legislation and appropriations that the Legislature did not authorize. If the purpose of the legislative process is to authorize the enactment of legislation on behalf of the people, it is plainly repugnant to that purpose to permit governors to "reject" individual words such as "not," or individual digits and punctuation marks, as distinguished from separate items of legislation or appropriation that the legislature may have joined together in a single appropriation bill. Nine. While the Wisconsin Supreme Court has upheld similar vetoes in the past, it has done so by misinterpreting the judge-made test of severability. The judge-made test of severability is designed to defer to the policy judgments of the Legislature in cases where part of a law is declared unconstitutional, by asking two questions: (1) can the remainder of the challenged text stand as a complete and workable law?; and (2) does it appear from the act itself that the Legislature would have enacted the remainder alone? See State ex rel. Broughton v. Zimmerman, 261 Wis. 2d 398, 409 (1952) citing State ex rel. Wisconsin Telephone Company v. Henry, 218 Wis. 302, 3116 (1935). However, in 1978, the state Supreme Court decided that the test of severability for determining the validity of a partial veto is simply that "what remains" after a partial veto must be "a complete and workable law" that the Legislature could have enacted in the first instance. See Kleczka v. Conta, 82 Wis. 2d 679, 707 (1978). Without a word of explanation or justification, the Court thereby abandoned the requirement of the standard test of severability that courts must make a further determination, based on an examination of the act itself, that the Legislature would have authorized the remnants alone to become a law. Id. If the standard test of severability is applied to the four appropriations that are cited above as examples (ie., the same test that is applicable in all cases other than those involving partial vetoes), the Court could not make a finding from an examination of the acts involved that the Legislature would have authorized the remnants to become a law, and as a result, could not make a further finding that those vetoes are constitutional. Ten. The Court has also misapplied a judge-made rule of constitutional interpretation that requires it to determine "the plain meaning of the words [of the Wisconsin Constitution] in the context used." See e.g. Thompson v. Craney, 199 Wis. 2d 674, 680 (1996). In 1988, the Court relied on the "plain meaning" rule of interpretation when it decided that governors may reject individual words, digits, and punctuation marks. Wisconsin Senate v. Thompson, 144 Wis. 2d. 429, 462 (1988). In support of its conclusion, the Court cited the dictionary definition of the word "part," which states that a part is "one of the portions, equal or unequal, into which anything is divided, or regarded as divided." (emphasis added) Id. However, the Court failed to give any consideration to the context in which the word "part" is used in the Constitution's prescription for legislative action. As noted in points one through eight above, that context makes clear that legislation must be authorized and enacted by the Legislature in order to be a legitimate exercise of governmental power. If the Court had considered one or more of the elements of context that are discussed above, and the fact that it is the constitutional function of the Legislature to authorize legislation on behalf of the people, it could not have concluded that appropriation bills are "regarded as divided," by persons of ordinary understanding, into random assortments of words, digits and punctuation marks, as distinguished from separate items of legislation that the Legislature has authorized to become law. The clear error of the Court's interpretation is evident in the fact that more than forty states give governors the power to veto "items" or "parts" of an appropriation bill, but Wisconsin is the only State that permits governors to veto pieces of an appropriation bill that are as small as a word, a digit, or a punctuation mark. Conclusion There is no support in the text, structure, history or design of the Wisconsin Constitution for the extraordinary proposition that governors may use vetoes of words, digits and punctuation marks to create items of legislation, or appropriations of money, that the Legislature did not authorize. Accordingly, the four vetoes that are cited above as examples of this practice are plainly unconstitutional. -- Wade is a Madison attorney who has long studied gubernatorial vetoes. |
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