There is a separation of powers battle going on right now in Missouri, and the signing statement is right at the center of it. If you are confused, then let me explain.
It is my belief that the current use of the signing statement was largely influenced by chief executives at the state level, and not the federal level. When the Reagan administration was defending its use of the signing statement back in the 1980s, they pointed to actions of governors, who had used the signing statement frequently to challenge defective provisions of law--much the way that presidents have pointed to the use of the line item veto by state governors to underscore why we should not be worried about the president having the same ability. I had filed this fact away when I was working on my dissertation as something that I should return to down the line--how many, how often, and how long have governors been using the signing statement to correct defective provisions of law? And so I have found bits and pieces of evidence where it has been used--for example, former Governor of Kansas turned current Secretary of HHS Kathleen Sebelius frequently used the signing statement to do battle with the Kansas State Legislature (such as this example of what I call a rhetorical signing statement).
And this brings me back to the beginning. Last month, Missouri Governor Jay Nixon (D) used a constitutional signing statement (.pdf) to challenge an education appropriations bill. Nixon wrote in the final paragraph of the statement:
The Language in Section 14.005, purporting to deviate from current law, is legal surplusage and beyond the constitutional authority of the General Assembly. Therefore, consistent with the requirements of Article IX, Section 3(a), and in recognition of the limitations imposed by Article III, Section 23, the Department of Elementary and Secondary Education shall distribute the funds appropriated under Section 14.005 of Senate Committee Substitute for House Committee Substitute for House Bill No. 2014 consistent with existing law.
There it is--plain and to the point. The legislature so far has been fumbling as to the appropriate course of action--sue using their own attorney, or "...ask Attorney General Chris Koster to do so." Never fear, the attorney general is here.
Senator Jason Crowell (R) of the Missouri legislature has asked Missouri Attorney General Chris Koster (D) to look into the action to determine its legality. Crowell argued that the "...governor has no authority to interpret the constitutionality of legislation passed by lawmakers--he can merely approve it, veto it or, in the case of budget bills, veto specific line items...the signing statement...is violating the separation of powers and...sparking a 'constitutional crisis.'"
No word yet out of AG Koster's office on what he will do. My guess is that Senator Crowell isn't so concerned with the signing statement, but instead the politics of the AG's decision. Force the AG to decide between the constitutional place of the signing statement or his boss as the head of the ticket. I am willing to bet that previous Governors of Missouri have used the signing statement to challenge provisions of law--and Nixon, who once served as Missouri's AG, probably knows this. But since the signing statement is so obscure (Crowell admitted to not understanding precisely what it was himself), the legislative Republicans will have an easier time framing its use in terms of tyranny. Thus in this AP article, one MO. Senate Republican called it "Tyranny" while another claimed it as "an unprecedented power grab." Heck, it worked wonders for congressional Democrats back in 2006 when George W. Bush was under the spotlight for his use of the signing statement, so why not now?
Stay tuned...
