I know, scintillating headline, but there’s plenty of action here.
The state is defending Gov. Greg Abbott’s recent veto of legislative funding as a bipartisan group of former state leaders — as well as more Democrats — weigh in against the governor.
The state faced a Monday deadline to respond to a Democratic lawsuit asking the state Supreme Court to overturn Abbott’s veto, which he issued after House Democrats staged a walkout that killed Republicans’ priority elections bill at the end of the regular session in May. Abbott has promised to bring back the bill in a special session and scheduled one to begin Thursday; he has not announced the agenda yet.
“The Governor properly exercised the veto power bestowed upon him by the Texas Constitution and acted consistently with this Court’s precedent,” the state said in its response. “Under the Texas Constitution, the Governor has the exclusive power to disapprove any bill.”
At the same time, three former state leaders filed an amicus brief arguing Abbott’s veto is “an attempt to intimidate members of the Legislature and circumvent democracy.” The brief was filed by former House Speaker Joe Straus, a Republican; former House Speaker Pete Laney, a Democrat; and former Lt. Gov. Bill Ratliff, a Republican.
The brief says Abbott’s move “should rebuked by people of all political persuasions.”
[…]
Another amicus brief surfaced Monday that argued against Abbott’s veto and was signed by all 13 Democrats in the Texas Senate, as well as a group of law professors and a few current and former Republican elected officials. The GOP signees included state Rep. Lyle Larson of San Antonio, as well as former state Reps. Jimmie Don Aycock of Killeen and Sarah Davis of West University Place.
See here for the background. All of the case information is here, with the response by the AG on behalf of Abbott’s executive clerk here. The first two amicus briefs, by Straus, Laney, and Ratliff and by various legislators and law professors, explicitly cite the constitution and the separation of powers doctrine, while the one by the League of Women Voters raises the issue of redistricting work not being done by legislative staffers.
The state’s defense essentially amounts to 1) It is too constitutional, 2) The Court lacks jurisdiction for boring technical reasons (specifically, the Governor’s clerk is not an executive officer of state government), and 3) The relators lack standing because the issue isn’t ripe yet, which is a fancy legal way of saying that since the legislative funding doesn’t run out until August 31 there’s no actual injury yet and thus no cause to sue. I Am Not A Lawyer and have no opinion on the first two items, but item 3 strikes me as technically correct but also beside the point. It should be possible to prevent an injury from occurring, not just waiting around for the disaster to happen and then trying to clean it up. The state’s argument is that because there’s already a special session on the docket, this can and should be fixed without the court getting involved. That may well be, and it would not surprise me at all if SCOTX were to sit on this for as long as possible, to give the legislative process a chance to patch this up without needing for them to issue a ruling. I think that would set a terrible precedent and would not address the “future Governor vetoes the funding for the Supreme Court in a fit of pique” scenario, but then no one ever claimed SCOTX was a profile in courage.
As far as the possibility of the Lege restoring funding before it runs out, there’s this:
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Ahead of special session, House Dems write to @DadePhelan on what they want “as a starting point to future discussions with your office.”Among the asks: committing to not moving anything on the agenda until Article X funding is restored. #txlege
— Patrick Svitek (@PatrickSvitek) 5:34 PM – 05 July 2021
If the Dems get what they asked for, that would undermine the case for their writ. It’s still what they have to do, and then hope that SCOTX sees the constitutional issue as more important than the practical one. We’ll see.
If I were a TX Leger, I’d put impeachment of the Guber as #1 priority of the Special Session.
The Governor sets the agenda for the special session, not the legislature, so there won’t be any impeachment talk.
BOUND TO FAIL
As much as we may dislike Abbott’s veto, this lawsuit is weak and borderline frivolous in that (1) there are several doctrines that allow the supreme court to dismiss this case without even reaching the merits, and (2) everyone knows that the court only has Republicans on it, who can be counted on to favor the Governor as they have done in the past.
Based on the latter circumstance, it can be expected that the court, i.e. the requisite majority, will utilize one of these doctrines to nix the lawsuit, most likely lack of ripeness (nobody has had their pay cut yet) and therefore lack of a concrete injury redressable by a court ruling. And if they don’t dismiss for one or more jurisdictional defect(s), they will reject the claims of a constitutional violation on the merits. After all, the Texas constitution doesn’t just provide for separation of powers, but for checks and balances. The Governor’s veto is a check on the legislature.
Alternatively, they might rule that two of the three named respondents are not proper defendants for the claim asserted, and that the Comptroller is bound by the constitution as far as the compensation for the members of the legislature goes, and that they will therefore get paid no matter what. Nor has the Comptroller said otherwise. It would follow that no writ is necessary to get them paid, and that the other plaintiffs simply don’t have a comparable constitutional entitlement to get paid, or to keep their jobs for that matter.
Note that the Governor is not even a party. That’s because he is not subject to the SCOTX’s writ power. And the position of the SOS is currently vacant. These are additional weak points for at least a portion of the lawsuit. Note also that the State is not a party either. The Attorney General does not represent the State here, but instead represents the three respondents in their respective official capacities.
The one facially compelling argument in the Governor-vs-Lege standoff is that the Texas constitution expressly provides for the payment to members of the Legislature (and fixes the amount) and that the Governor therefore doesn’t have the authority to take it away from them. But Abbott has already conceded that point. So, on that shared understanding — namely, that the veto doesn’t encompass the pay of the members of the Lege — no action by the SCOTX is required because the veto is simply void and therefore ineffectual as to their pay. And since the legislators’ compensation is not threatened, they have no injury, current or prospective, and therefore lack standing to sue.
Some of the media have framed this legal action as a request to the SCOTX to override the veto. That’s wrong. Overrides are done by supermajorities of legislatures, not by courts. The claim here is that the specific instance of the exercise of veto power by the Governor is unconstitutional and void ab initio (not the line-item veto as such, contrary to prior federal litigation involving the president), although you have to read the entire petition to find the “ab initio” (from the beginning) voidness argument. If some act is void from the start, it does not have to be voided, much less reversed as in an appellate proceeding. If void, the provision at issue simply has no legal effect and is to be ignored. The court could say as much in an opinion while denying mandamus relief, or do so in dicta in a jurisdictional dismissal for want of ripeness or standing.
The other seemingly compelling argument here is that the Governor is — in effect — shutting down the legislative branch by depriving it of the financial means to function, and that this amounts to an encroachment by one branch of the other, i.e., a violation of the separation-of-powers principles, which is expressly enshrined in the Texas constitution in a separate article.
But the Texas Legislature is not a party to the legal action as an institution, and individual members cannot represent the institution qua institution, so there goes that inter-branch argument on the threshold inquiry as to standing. And the legislative agencies that are so essential to the smooth operation of the lawmaking branch today do not have constitutional status and protection. The state supreme court is not going to second-guess the executive and legislative branches’ disagreement over how much money should be appropriated to each of them. While the constitution sets the compensation of legislators in dollar terms, the same is not true of specific amounts appropriated for the various agencies. That’s a matter of policy and budget priorities.
The most glaring problem with this lawsuit is that it is premature because nobody’s pay has yet been cut, and future pay can still be restored, rendering the possible injury in the future speculative, and dependent on acts by the political branches to be taken or not taken before the end of the fiscal year. We just don’t know yet what will happen. Nobody does. And that includes the SCOTX. So, even assuming that there could be a viable legal basis for the judiciary to play a role in this type of dispute, there are still other ways to resolve it.
And the petitioners did not argue strongly that the staffers have standing because of the *uncertaintly* of having no job/income as of Sep 1, and that such uncertainty requires them to start seeking other employment NOW, and perhaps even make plans to move from Austin in search of more affordable housing. That might be enough for standing and claim maturity purposes, but it would also require some record evidence. Although the mandamus petition is sworn as required, the absence of evidence relevant to standing and injury is an additional hurdle. Not so much for the legislators, whose status as members the court can take judicial notice of, but for the staffer-petitioners whose complaint is that they will not get paid because of the veto. How can the court even be sure about their current employment status? The response submitted by the AG doesn’t raise this as an issue, but challenges the portion of the claim relating to the veto as to rollover funds (from the current fiscal year) on the ground that there is no record evidence as to these monies. Such evidentiary matters, of course, are a more general problem when a lawsuit is filed as an original proceeding in the supreme court directly, as opposed to a trial court.
BOTTOM LINE: This lawsuit is doomed.
What’s still interesting, and less predictable, is the doctrine that the Court will utilize to dispose of this premature request to inject themselves in a dispute between the political branches, given that there are several options available. They might simply rule that the question brought before them is political in nature, and that it is not the business of the judiciary to decide political question (“non-justiciable”) even though Texas judges and justices are elected in partisan races. Or they may rely on conventional concepts of legal standing and case & controversy, where they have followed the U.S. Supreme Court even though Texas state courts aren’t governed by Article III or the federal constitution.
Nice write up, Wolf. Thanks!