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ANALYSIS: Nixon judges bill he signed as unconstitutional

Sunday, April 18, 2010 | 3:30 p.m. CDT; updated 4:20 p.m. CDT, Sunday, April 18, 2010

JEFFERSON CITY — Gov. Jay Nixon delivered a swift verdict when presented with a recent budget bill by legislators. He signed it into law, then he immediately judged a section on school funding to be unconstitutional and declared he would not follow it.

Nixon's action appears to be unprecedented among recent Missouri governors. But it followed a centuries' old practice of U.S. presidents, who have cited constitutional grounds for ignoring portions of legislation that they sign.

The presidential practice has sparked outrage among some members of Congress. Nixon's action has caused similar alarm from some in the Missouri Capitol.

"It rocks the very nature of our foundation of a state, and I don't think I'm speaking in hyperbole," said Sen. Jason Crowell, R-Cape Girardeau.

That foundation to which Crowell refers is the constitutional separation of powers among the three branches of government. It is a basic principle of American civics that the legislative branch makes laws, the executive branch enforces laws and the judicial branch interprets laws.

"We now have a governor who thinks he's the judiciary as well," Crowell said.

Others are also miffed.

"The governor overstepped his authority," said Rep. Maria Chapelle-Nadal, D-University City.

"Tyranny," declared Sen. Jim Lembke, R-St. Louis.

An "unprecedented power grab," said Sen. Kurt Schaefer, R-Columbia.

Nixon insists he is upholding — not violating — the constitution by ignoring a section of the midyear spending bill passed by the General Assembly.

That legislation sought to tell the Department of Elementary and Secondary Education how to handle a $43 million shortfall in basic state aid for public schools. The department had planned to divide the shortfall among all 523 school districts. The legislation instead directed the department to modify the state's school funding formula so that about one-quarter of the districts would be spared from a cut.

If he objected to that approach, Nixon could have vetoed the bill and asked lawmakers to pass a new version. Nixon instead signed the bill, directed the department to ignore the legislature's instructions for dealing with the shortfall and sent legislators a message saying they had gone beyond their constitutional authority.

Nixon said the legislature's directives violated a constitutional prohibition against changing laws through appropriations bills.

When The Associated Press inquired, Nixon's office cited two court cases as precedent.

In 1926, the Missouri Supreme Court struck down a provision in an appropriations bill barring state employees from being paid more than they had been during the previous two years. The court cited a constitutional provision prohibiting bills from containing more than one subject.

"To inject general legislation of any sort into an appropriation act is repugnant to the constitution," the court said in its written opinion.

In a 1999 case about where to locate a new state prison, a state appeals court again said that it would be unconstitutional for lawmakers to use an appropriations bill to change a state law.

Although not relying on presidents for his precedent, Nixon's action is nonetheless similar to what U.S. presidents have done throughout much of history.

President George W. Bush issued a record number of such "signing statements," citing constitutional grounds while asserting a right to ignore certain provisions of bills that he signed. Bush used the statements to circumvent Congress' ban on torture and prohibitions against using federal tax dollars to build a permanent military base in Iraq, among other things.

President Barack Obama has done likewise. Last year, for example, Obama issued a statement saying he didn't have to comply with provisions in a war spending bill that put conditions on aid to the World Bank and International Monetary Fund. He said it would interfere with his presidential authority to conduct foreign policy and negotiate with other governments.

Crowell, one the most vocal Missouri lawmakers against Nixon's action, said he was unfamiliar with the presidential use of signing statements to ignore portions of federal legislation. He met Friday with a fellow attorney about whether to file a lawsuit challenging Nixon's action or to first ask Attorney General Chris Koster to do so.

Crowell contends Nixon has supported lawmakers in other instances in which they have inserted wording into appropriations bills. He cited a provision in the higher education funding bill passed last week by the Senate that directs how to distribute college scholarships.

Nixon spokesman Jack Cardetti said that case is different from the K-12 school funding bill, because Missouri's law authorizing the scholarships specifically says they are subject to appropriation.

But Crowell is not easily assuaged. He says a judge should determine whether legislation is unconstitutional.

"I don't want a governor to be both the executive and the judicial branch of our state government," he said. "That's not the state and the country I want to live in."


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