Rich covers the Governor’s stated belief that he is above the Illinois Constitution.
JCAR’s Constitutionality has never been directly tested in the courts and I do take seriously the notion that it might be unconstitutional. JCAR reviews rule making which is generally considered an executive function. I happen to like JCAR and think it’s an important check on the Executive. If it were to be ruled unconstitutional, I would strongly suggest it be passed as an amendment to the Illinois Constitution or taken up in a Con-Con.
Rich points out the hypocrisy from the Governor in that he signed a law strengthening JCAR, but hypocrisy and the Governor is not exactly news at 11. Also, it doesn’t get to the underlying point about JCAR. Just because the Governor signed a law that limits executive power doesn’t change the underlying powers of the Executive. Such a bill could suggest it is generally accepted and be used in the reasoning of the courts, but it’s not enough on its own.
The basic problem is that rule making before WWII wasn’t all that much. The Governors generally had limited room to make decisions and the size of government being far smaller, the Legislatures were generally comfortable passing laws that would faithfully be carried out.
After WWII and the increase in the size of government, decisions about programs were too complex to be put into law so many were delegated to the Executive. There is no reason a State Legislator should be informed enough on particulate matter to know how to vote on a safe level for example. Instead, the rule-making for specific standards were left to bureaucracies which are under the Executive.
To adapt to this new reality, the federal government and nearly all of the states created Administrative Procedure Acts. The federal version was in 1946 with Illinois being late in adopting an APA, doing so in 1976.
APAs are designed to limit the discretion of the Executive and thus make final outcomes closer to what the Legislature prefers. Often this means public comment periods and then judicial oversight with parties bringing lawsuits if rules are out of line with what the Legislature preferred.
JCAR is generally a far more efficient system where a supermajority of members can effectively stop a rule that is inconsistent with the preferences of the Legislature. It is a check on Executive power and by requiring a supermajority, it’s fairly limited as to when the power can be used. It gives relatively immediate responses compared to the courts that can take forever. Rules can still be challenged in the courts, but by providing the ability to challenge rules within the Lege, the process is much quicker for many challenges that are made by the legislature.
In short, it’s a far more efficient way for the Lege to ensure the Governor (any Governor) is not ignoring the law and imposing his will upon legislation through rule making.
And again George Bush meets Rod Blagojevich.
The Governor could reasonably argue the JCAR to be unconstitutional–federal attempts to create a JCAR process were ruled unconstitutional. The State Constitution may or may not be the same. Given it’s been running for over 30 years, that kind of counts towards it’s a fairly reasonable institution.
Ultimately, the problem here is one of the Governor. By changing the rules to dramatically increase eligibility without legislation or spending authority he is either going to try and blackmail the legislature into passing more funding or he’s simply going to fund program changes out of money he vetoed because he claims to have the authority.
The first is irresponsible and clearly against the intent of the law and the Constitution. It plays chicken with healthcare for poor families. And to remind everyone, this isn’t the initial plan he is proposing, but a plan that could have passed back in May.
The second is an impeachable offense. When spending authorization is vetoed, the authorization no longer exists unless there is a veto override. The money does not sit around to be spent at the whim of the Governor. If the money did, the Governor could veto the entire budget and just decide to run state government on his own. Spending can only occur on programs designated by the General Assembly or through delegated power to the Executive. That delegated power is relatively small and primarily allows for a program to be supported if it ends up costing more than expected, not just on the whim of the Governor.
The ultimate hypocrisy
“Where is it written that a handful of legislators – 12 of them – can tell the executive branch what it’s going to do when it comes to administering the executive branch?” the governor said.
The Illinois APA. It’s right here
And if it wasn’t them, it would be delegated to the courts. If JCAR is declared Unconstitutional by the courts, it doesn’t mean he gets to do anything he pleases. It invalidates the authority under which he makes all administrative decisions. IOW, if it’s true that JCAR doesn’t have the authority, then the Lege would have to pass an entirely new APA to allow the Governor to make rules. JCAR is not separable from the act itself and while laws related to rule making prior to JCAR would be in effect, nearly all of the laws since have been passed on the assumption of JCAR being legitimate and until a new APA was created, the Governor’s rulemaking authority would be severely limited.
That said, where is it written that a single individual can appropriate money as he sees fit?
Nowhere in Illinois law or the Illinois Constitution. It is written that appropriations are done by the General Assembly. The Illinois Constitution requires appropriations to be passed by the Legislature.
d) The Governor may reduce or veto any item of
appropriations in a bill presented to him. Portions of a bill
not reduced or vetoed shall become law. An item vetoed shall
be returned to the house in which it originated and may
become law in the same manner as a vetoed bill. An item
reduced in amount shall be returned to the house in which it
originated and may be restored to its original amount in the
same manner as a vetoed bill except that the required record
vote shall be a majority of the members elected to each
house. If a reduced item is not so restored, it shall become
law in the reduced amount.
This is not a debatable point. While the press is calling him on it in the editorials, it’s a simple fact and should be in the news stories. Blagojevich is not entitled to his own facts.
Impeach him. Impeach him now.
ArchPundit