RICHMOND, VA – Virginia House of Delegates Speaker William J. Howell directed the Clerk of the House of Delegates and Keeper of the Rolls of the Commonwealth on Wednesday to notify Governor Terry McAuliffe of invalid veto actions on HB 1500. Clerk G. Paul Nardo sent a letter to the Governor, a full copy of which can be found here, explaining the invalid vetoes of Item 306 on page 286 and Item 436 on pages 399 through 404 of the re-enrolled budget document.
“Consistent with past practice under both Republican and Democrat speakers with both Republican and Democrat governors over the past 21 years, the Clerk is refusing to publish, at my direction, two invalid vetoes. The Supreme Court is abundantly clear about the limits of the governor’s line-item veto authority and there is no doubt Governor McAuliffe exceeded that authority in these two instances. The legislative branch cannot acquiesce to this expansion of executive authority,” said Speaker Howell (R-Stafford).
The Clerk’s letter informs Governor McAuliffe that his purported vetoes of Item 306 (the Stanley Amendment) and Item 436 (the Secretary of Transportation’s budget) will not be reflected in the final budget law. The Clerk’s letter is based on Supreme Court precedent in Brault v. Holleman (1976), Dodson (1940). There are seven examples of legislative application of these cases dating back to 1996.
The Supreme Court has consistently held that for a governor to veto a condition or restriction on an appropriation, he must also veto the appropriation attached to the condition or restriction. Item 306 is a condition on all appropriations in the budget. Governor McAuliffe purported to veto this language in 2014 and 2016. Neither vetoes were recognized in the final budget law.
“The authority to expand Medicaid rests solely with the General Assembly. The Stanley Amendment was adopted as an extra safeguard against unilateral efforts by the governor to expand Medicaid without the consent of the General Assembly,” said Speaker-designee Kirk Cox (R-Colonial Heights). “I believe very strongly that we cannot allow the executive branch to encroach on the spending powers explicitly reserved to the General Assembly by the Constitution of Virginia.”
Subsection Q of Item 436 establishes a restriction on appropriations for the Public-Private Transportation Act of 1995. The governor failed to also veto those appropriations, which are set out elsewhere in HB 1500.
House Appropriations Chairman S. Chris Jones (R-Suffolk) said, “The actions taken by Governor McAuliffe were not proper and rightly should not be recognized in the final budget action. The governor failed to veto both the condition and the appropriation on PPTA projects. This is the appropriate step to maintain legislative prerogative over the budget. This ensures that the power of the purse is possessed by the legislative body most responsive to the people.”
- 1996 – Speaker Tom Moss (D) declared a Governor George Allen (R) veto out of order from the dais
- 2003 – Clerk Bruce Jamerson refuses to publish a purported veto by Governor Warner
- 2004 – Clerk Bruce Jamerson refuses to publish purported vetoes by Governor Warner
- 2006 – Clerk Bruce Jamerson refuses to publish a purported veto by Governor Kaine
- 2008 – Clerk Bruce Jamerson refuses to publish a purported veto by Governor Kaine
- 2014 – Speaker Howell declared a Governor Terry McAuliffe veto out of order from the dais.
- 2016 – Clerk G. Paul Nardo refuses to publish a purported veto by Governor McAuliffe
IMPORTANT NOTE: In 2003, 2004 and 2006, the veto in question dealt with language that created conditions or restrictions attached to all appropriations budget. Neither Gov. Warner nor Gov. Kaine took issue with the concept of attaching conditions to all appropriations in the budget as Governor McAuliffe has done in 2016 or 2017.
Supreme Court Background
The Court has consistently defined an item as “an indivisible sum of money dedicated to a stated purpose” (Brault v. Holleman, 217 Va. 441 (1976))
“We think it is plain that the veto power does not carry with it the power to strike out conditions or restrictions…” (Dodson, 1940)
“[The Governor] cannot veto the condition without also disapproving the appropriation…” (Brault, 1976)
“While the Governor is empowered to veto any particular item or items of an appropriation bill, he must, for his veto to be valid, strike down the whole of an item; he cannot disapprove part of an item and approve the remainder.” (Brault, 1976)