Senator Crowell makes a number of arguments to bolster his case:
- The Governor has exceeded his constitutional authority when he issued the challenge: The Missouri Constitution only allows the governor, when presented with a bill one of three options--sign it, veto the whole bill, or line item veto bills dealing with appropriations;
- The executive branch cannot declare a law unconstitutional: Senator Crowell cites a MO. court opinion where the attorney general issued an opinion challenging the constitutionality of a provision of law. The court found that the attorney general did not have the constitutional authority for such an action;
- The governor may not challenge the purpose behind an appropriation: The Governor did not challenge the appropriation but rather challenged the wording of how the money should be spent: The argument here is when the governor is faced with an appropriation bill, he has to strike the provision down, not rewrite it;
Crowell concludes:
With this said, in my opinion, a constitutional issue as to the validity of section 14.005 may exist but that constitutional issue is solely a matter for the judiciary of the State to determine, not the Executive. After careful review of the unprecedented actions of Governor Nixon, I respectfully request you to use any and all legal powers to ensure that the separation of powers found in Missouri's Constitution are protected as quickly as legally possible.
First the challenges. The second challenge about the executive branch being unable to disregard the law does not apply here since we are talking about the governor, and not an inferior executive branch officer. The other challenges hinge on whether the governor is really bound by three choices--sign a bill, veto a bill, or item veto appropriations bills? Here I would suggest a look into the actions of previous governors because, just like George W. Bush, the signing statement that got all the attention was hardly the first one ever used. My bet is that Governor Nixon's signing statement is not the first signing statement challenge issued by a Missouri governor. Thus going into the courtroom, the legislature would have to tell a judge why this one is unconstitutional and not the previous ones. This was the strategy of the Reagan administration--to use the signing statement on bills that were not likely to draw much attention so that when they were used on a bill with a high public profile, the administration could point to all those that had been used without a ruckus by the Congress or anyone else.
There is also the question of standing, which has been key with the presidential signing statement and the focus on this book by Christopher May. May argued that one big problem with a president defying the will of the legislature is a lack of standing to sue. The courts cannot get involved proactively, but instead must wait until a suit is brought to the courts. And a suit may only come to the courts if the parties have standing to sue. For Senator Crowell, he cannot sue on behalf of the Congress, but instead must get Congress to authorize a suit. Even though the MO. legislature is controlled by the Republicans, it is still a tall order to get the entire Congress on board.
Instead, the better hope for a judicial outcome would be to get some of the school districts to sue. The Powers Report makes the case that 151 MO. school districts will be negatively impacted by the challenge, and anyone of them, or all, will have standing to sue. In that case, Senator Crowell could provide an amicus brief challenging the governor's action.
I guess we next wait for the attorney general's response, though I think we all know what he is going to say.
