Why the Gov. Rick Perry prosecution unconstitutionally intrudes on the gubernatorial veto power

Texas Governor Rick Perry turned himself in to authorities for booking on Tuesday after being indicted last week on two felony charges of abusing power. (Reuters)

[UPDATE: For all our posts on the Gov. Perry indictment, including more detailed legal analyses of both Count I and Count II, see here.]

I’ve been thinking some more about the veto power question: Does the Texas Constitution’s Veto Clause bar prosecuting Gov. Rick Perry for his vetoing the $7.5 million appropriation to drunk-driving D.A. Rosemary Lehmberg’s Public Integrity Unit? (I’m speaking here specifically of Count I, which is based on the veto; I’ve discussed Count II, which is based on the veto threat, elsewhere). Cornell law professor Michael Dorf, for instance, is unpersuaded by the veto power argument:

Governor Perry’s defense team is at least initially taking the position that Perry has done nothing wrong because he was simply exercising one of the powers that the Texas Constitution vests in him as governor, namely vetoing legislation, in this instance the entire budget of the public corruption unit overseen by the Travis County District Attorney. This strikes me as a very weak argument, at least if not further qualified.

In numerous ways and circumstances, the law confers power on people but restricts — sometimes with criminal penalties — the means by, and purposes for which, they may permissibly exercise that power. Governors and other state officials have the power to make personnel decisions. Some of these decisions are considered discretionary, in the sense that they are not subject to review by others who think that they reflect a poor policy or personal judgment. Nonetheless, such decisions are not wholly unconstrained by law. For example, a public official who fired or refused to hire someone based on race would thereby violate the Constitution. A public official who made a personnel decision based on a bribe would thereby commit a crime.

All of this seems perfectly routine and must be obvious to special prosecutor Michael McCrum. He is not charging Perry with making a poor or even foolish decision by vetoing the public corruption unit’s budget. The indictment charges that Perry used what would otherwise be a perfectly legal tool for an illegal purpose, and thus committed unlawful acts. Once one thinks this through, one realizes that the defense Perry has thus far publicly mounted is inadequate. It would be as though someone who was charged with committing murder by deliberately running over his victim with his car protested: “But I have a license to operate a motor vehicle.”

On reflection, though, it seems to that the veto power argument is actually quite strong. Let me elaborate.

1. The veto power is a power of the governor, but it is more than that: It is a check on the power of the legislature. If Texas legislators want to prohibit some conduct, or appropriate money, or levy a tax, or enact any other law, they have to get a majority vote in both houses and the consent of the governor (unless they can get a 2/3 supermajority vote in both houses).

It follows, then, that the legislature generally cannot criminalize gubernatorial vetoes, because any such restraint on the governor’s power would be an increase in the legislature’s own power — an increase imposed by a mere statute that cuts back on the constraints on the legislature imposed by the constitution. To give the most obvious example, say the legislature enacts a law saying, “The Governor may not veto any bill that protects gun rights, and it shall be a felony for him to do so.” That would be an unconstitutional attempt to allow the legislature to enact gun rights laws without fear of gubernatorial veto. Even if such a law can pass at some point, either because the legislature has a 2/3 majority in each house for the law, or because the governor at the time wants to constrain his successors, it would be unconstitutional to enforce such a law against a future governor.

The same, I think, would be true even if the legislature has a wonderfully public-spirited good-government avoiding-conflict-of-interest motivation for the law. If, for instance, the legislature enacts a law saying, “The Governor may not veto appropriations for a prosecutor’s office that is investigating the Governor’s appointees,” that has to be unconstitutional, given that the constitution provides the governor with a veto power unlimited as to subject matter. There are no laws that the legislature is entitled to enact without the possibility of gubernatorial veto, including really great laws that help keep the governor in check. It thus follows that the legislature can’t outlaw the exercise of the governor’s power to impose such a veto.

Or let’s work with Prof. Dorf’s hypothetical. Say that a governor vetoes a bill appropriating money for some public health measure. Someone dies, allegedly because of the veto (i.e., the person wouldn’t have died had the measure been funded). A prosecutor then charges the governor with “depraved heart” murder, meaning (roughly) that the governor acted despite his knowledge that there was a very grave and unjustified risk that his veto would cause death. Or perhaps the prosecutor charges the governor with negligent manslaughter, meaning (roughly) that the governor was grossly negligent in vetoing the law.

Such a prosecution, I think, would be unconstitutional. This is partly because the governor has the constitutional power to veto — in this respect, the veto is quite unlike a driver’s license — and it’s not for a prosecutor or a jury to second-guess the governor’s judgment about whether a veto is reasonable or justified, or to investigate what the governor knew or intended when he vetoed the law. But it’s partly because allowing such prosecutions would mean that the legislature could enact such supposedly life-saving appropriations without meaningful review by the governor, given that the governor would know that a veto could mean prosecution and prison time.

2. What if the law is written in terms of a bad motivation? Say the legislature enacts a law saying, “The governor may not veto a law because of his desire to protect his friends from investigation, and it shall be a felony for him to do so.” That wouldn’t categorically bar vetoes of certain kinds of bills. But it would still make it extremely risky for a governor to veto certain kinds of bills, since it would put him at the mercy of a prosecutor who may allege that the governor’s motivations are wrongful.

Indeed, let’s assume that a governor really is trying to protect a friend from investigation. A special prosecutor is investigating the governor’s friend Joe Schmoe, and the governor thinks this is a witch-hunt. When the special prosecutor asks for more money, the governor wants to veto this, because he wants this investigation (which he thinks is misguided) to stop.

Now maybe the governor’s motive is suspect. Still, under the constitution the legislature is not entitled to appropriate money without the governor’s consent, no matter how worthy the appropriation might be. Putting the governor in a position where he could go to prison for his veto means that the legislature (together with the special prosecutor) has given itself a power that the constitution denies it — the power to enact laws without the governor’s approval. (I assume we agree that an approval given because one will go to prison if one doesn’t approve isn’t a sufficient approval for constitutional purposes.)

3. And if we step back from the abstract framework, and look at the law involved in the Perry prosecution, it’s actually even worse (assuming that the legislature meant for it to apply to vetoes, which I very much doubt).

Say that the legislature really did say that it will be a crime for a governor to veto a bill contrary to (A) an agreement under which the governor has the veto power, or (B) the governor’s oath of office (those are the provisions of the statute that the indictment cites). Because the terms are so vague, and thus so manipulable by a hostile prosecutor, the governor would face a risk of prosecution and perhaps prison as to a vast range of potential vetoes. And, as I said above, this loss of gubernatorial power would mean that in enacting the veto prohibition, the Legislature would have largely canceled a constitutional constraint on its own veto power. (Indeed, under the principle that courts should interpret ambiguous statutes to avoid serious constitutional doubts, the statute — the application of which to vetoes, as I’ve argued, is very far from certain — should be read as not entering such constitutionally troublesome territory.)

4. What about bribery? Well, first, a prosecution for accepting a bribe to veto something doesn’t require outlawing the veto. In the words of the Supreme Court in United States v. Brewster (1972), upholding a federal bribery statute against a federal constitutional challenge, “There is no need for the Government to show that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise.”

Second, beyond this, there is a special provision of the Texas Constitution that expressly forbids accepting a bribe by an official (including the governor), and authorizes criminal punishment for such behavior. And, third, the risk of prosecution for bribery is far less of a deterrent to a veto (assuming the governor hasn’t been bribed) than the risk of prosecution for violating the laws I discussed above, precisely because a prosecution for bribery has to show an agreement to take a bribe — not just a supposedly improper intent behind the veto.

5. Now note that all of this has just been focused on preserving the constitutionally prescribed allocation of power; it doesn’t say what allocation of power the constitution should prescribe. Indeed, some other provisions of the constitution already deter the governor from exercising certain vetoes. The governor might be impeached for such a veto. The governor might lose the next election, or see his allies in the legislature lose the next election. The legislature might respond by flexing its own muscles, for instance refusing to enact laws that the governor wants to see elected, or refusing to confirm the governor’s appointments. I’m not criticizing these constraints on the veto power because they are actually constitutionally prescribed constraints.

Likewise, if there really is such a problem with a governor’s vetoing appropriations for prosecutors, the state constitution can be amended to provide an exception to the veto power for such bills. (State constitutions aren’t that hard to amend, and are indeed amended fairly often; these days, the Texas Constitution is amended at an average rate of over 10 amendments per election cycle.) But so long as the constitution grants the governor the power to veto laws, I don’t think the legislature can criminalize such vetoes, and thus free itself from the constraints that the state Constitution imposes on it.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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