Opinion: State Supreme Court rules Governor issued illegal vetoes

Jason Mercier of the Washington Policy Center sheds light on court’s ruling on governor’s veto authority

Jason Mercier
Washington Policy Center

In a 7-2 ruling this morning, the State Supreme Court said the partial vetoes the Governor made in the 2019 transportation budget were unconstitutional. When issuing those vetoes the Governor said:

“While my veto authority is generally limited to subsections or appropriation items in an appropriation bill, in this very rare and unusual circumstance I have no choice but to veto a single sentence in several subsections to prevent a constitutional violation and to prevent a forced violation of state law.”

The State Supreme Court disagreed today saying:

“We hold that the Washington Legislature enacted the fuel type condition pursuant to its constitutional authority to appropriate funds and to control the expenditure of those funds. Governor Inslee exceeded his article III, section 12 veto power by striking the fuel type condition, which formed only one part of each appropriation item in which it appeared. Further, the fuel type condition does not constitute substantive law smuggled into a budget bill in violation of article II, section 19; it is a valid legislative limit on an executive agency’s expenditure of appropriated funds. And the fuel type condition does not amend any existing law without setting forth that law in full; it therefore complies with article II, section 37. We affirm the superior court’s orders on summary judgment in favor of the legislature.”

For background, Washington’s current veto restriction language was adopted by voters via a constitutional amendment in 1974. According to the arguments in the 1974 Voter’s Guide:

“Help Rid Your State of One-Man Lawmaking – Washington is the only state in the nation in which the Governor exercises practically unlimited power to remove portions of laws passed by the Legislature . . .  SJR 140 will prevent one person from changing behind the closed doors of his office bills which are the product of an open hearing process, accessible and visible to all citizens.”

As a result of this 1974 constitutional amendment, Washington’s veto restriction now says (emphasis added):

“If any bill presented to the governor contain several sections or appropriation items, he may object to one or more sections or appropriation items while approving other portions of the bill: Provided, That he may not object to less than an entire section, except that if the section contain one or more appropriation items he may object to any such appropriation item or items.”

Today’s State Supreme Court ruling should help prod lawmakers to file another lawsuit against the Governor for his unconstitutional vetoes this year in the “Grand Bargain” bills tying the LCFS and Cap and Trade bills to a future transportation package. Here is what legislative leaders said earlier this year when the Governor issued those vetoes:

• House Speaker Laurie Jinkins: “Washington Courts have consistently held that as a co-equal branch of government, the legislature is responsible for drafting laws and the executive branch is responsible for implementing them. The Constitution provides the governor only limited powers to veto legislation. The governor’s partial veto today of E3SHB 1091, the clean fuel standard bill, reaches beyond his constitutional powers and we will ask the Washington courts to again rule on the balance of legislative and executive branch powers.”
   
• Sen. Braun: “A court ruled that the governor illegally used his veto power in 2019. Today, the governor ignored that by vetoing a subsection of one of his highest priority environmental bills. The Constitution is clear – the governor may not veto anything less than an entire section of a bill. Maybe he’s emboldened by the sweeping authority he continues to have because majority Democrats refused to address emergency-power reform. Maybe he thinks the Supreme Court will overturn the lower court’s ruling. Whatever the reason, his subsection veto today is illegal. That alone says a lot about why our political system has checks and balances on one-person rule.”
   
• Sen. Billig: “This veto is an overstep of executive power. The governor has attempted to create a power for his office that simply does not exist. The constitution is clear that the governor is permitted only to veto a full section of a bill. In this case he has vetoed a subsection. What’s worse, this is the second time in recent years this governor has attempted to invent such a power. He lost in court then. He will lose again. Make no mistake, the Legislature will use every power at its disposal to push back and preserve the balance of power between the executive and legislative branches as prescribed by the Washington State Constitution.”
   
• Rep. Wilcox: “Governor Inslee is once again overstepping his veto authority and ignoring the state constitution. When this happened in 2019, the Legislature challenged him in court and prevailed. It is good to see that Democratic legislative leaders are again threatening to go to court and hold the governor accountable. We should all join together to send a strong message about the governor’s emergency powers, too.”
   
• Sen. Mullet: “This sets a chilling precedent and poisons the well for all future negotiations on virtually any tough issue. When it comes to the governor’s top priorities in the future, he should expect a more hostile Legislature if this is the path he wishes to take . . . The governor has the authority to veto bills or sections of bills. But the Washington State Supreme Court says that he does not have the authority to veto sentences in bills, as he did today. Not only is what he did today bad policy, it is unconstitutional.”

That lawsuit hasn’t been filed yet by lawmakers. In potentially related news, the Governor last week sent a very strange public records request to several Democratic Senators and legislative staff surrounding their discussions about the LCFS and Cap and Trade bills.

The constitution is clear that the only options for vetoes are sectional or appropriations. The Governor may not veto a word or sentence within a section. Today’s ruling by the State Supreme Court is an important step to prevent returning the state to the “One-Man Lawmaking” the 1974 constitutional amendment tried to avoid. Of course, emergency powers reform will also be important to prevent a different type of one person rule abuse. 

Jason Mercier is the director of the Center for Government Reform at the Washington Policy Center.