- The Washington Times - Tuesday, May 2, 2006

RICHMOND — Gov. Timothy M. Kaine thinks he has authority to keep state government running even if the budget stalemate continues into the next fiscal year — a position backed by Virginia’s top constitutional scholar.

The General Assembly adjourned its regular session March 11 without agreeing on a two-year budget to replace the one that expires July 1. Mr. Kaine called lawmakers back into special session March 27 to finish the job, but progress has been minimal.

Article 10, Section 7 of the Virginia Constitution prohibits the expenditure of state funds unless appropriated by the General Assembly. Delegate Robert G. Marshall thinks that means government would have to shut down if the legislature fails to act before July 1.

“We have to have a budget or [Mr. Kaine] has no authority to spend money,” Mr. Marshall said yesterday.

Mr. Kaine, a Democrat, disagrees.

“As the elected executive, we believe the governor has broad power to guarantee the continued smooth delivery of state services,” Kaine spokesman Kevin Hall said.

Mr. Marshall, Prince William County Republican, wrote a letter to Mr. Kaine on Monday asking him to cite his legal and constitutional reasons for thinking he has such sweeping power. Mr. Hall said the governor’s office has frequent, confidential discussions with the attorney general’s office, but he declined to be more specific.

A.E. Dick Howard, a University of Virginia law professor and chief architect of the modern Virginia Constitution, said the document does not explicitly grant the governor emergency powers to run the state without a budget. Such a calamity was never contemplated by the commission that revamped the Constitution 35 years ago, Mr. Howard said.

Nevertheless, he thinks Mr. Kaine can make a solid case for maintaining crucial services. He said the language in the constitution must be read in light of the document’s “ultimate purpose” of benefiting the state’s residents.

“The constitution is not a suicide pact,” Mr. Howard said.

He also said Article 5 of the constitution, which spells out the governor’s powers, could be interpreted as authorizing the chief executive to maintain the status quo. That article says, in part: “The Governor shall take care that the laws be faithfully executed.”

Those laws, for example, require the enforcement of court orders confining criminals to prison. Mr. Howard said common sense dictates that the government could keep prisoners locked up even without having funds appropriated for that purpose.

Other arguments that Mr. Howard said could support the governor’s position:

• Separation of powers. The legislative branch cannot shut down the other two branches of government by failing to act.

• Federal pre-emption. Many functions of state government, including Medicaid, receive federal money that comes with conditions that even the state constitution cannot override.

As a practical matter, Mr. Howard said, only a court could stop the governor from invoking what he sees as his broad constitutional power to keep government operating.

“Would a court take jurisdiction or say this is a political question for the governor and the legislature to sort out? I think a court would be hesitant to get involved,” Mr. Howard said.

Furthermore, he said, a governor’s decision to preserve state services “is one that wins in the court of public opinion.”

Mr. Marshall would rather not test the governor’s authority. He has proposed legislation that would continue to fund government services at current levels for a year if a budget is not enacted by the start of the new fiscal year.

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