Kaine's Power to Avert Closing Questioned

By Michael D. Shear and Rosalind S. Helderman
Washington Post Staff Writers
Tuesday, June 6, 2006

RICHMOND, June 5 -- Virginia's attorney general has concluded that Gov. Timothy M. Kaine (D) would overstep his constitutional authority if he unilaterally tried to keep the state government running after July 1 without an approved budget, legislators said.

Kaine has said he plans to assert broad executive authority to keep the government running in the event that a budget is not adopted by the beginning of the next fiscal year.

But Attorney General Robert F. McDonnell (R), told senior House lawmakers privately last week that the state legislature is the only entity empowered by the constitution to appropriate funds from the treasury to operate the government.

"The attorney general, in effect, says there's no executive power," said House Appropriations Chairman Vincent F. Callahan Jr. (R-Fairfax). "He says the governor has no power to keep the government open. The governor thinks otherwise. If I were the governor, I'd think otherwise, too."

Though the governor is not bound by the opinions of the state attorney general, the question could spark an unprecedented legal confrontation in Virginia if Kaine's claim of executive power is challenged in court.

Callahan said House lawmakers may introduce legislation Tuesday to extend the budget year by a week or two, much like the continuing resolutions Congress uses to finesse budget deadlines.

"I would hope that we could pass some type of emergency legislation that would at least have the aspects of legality," Callahan said.

If that doesn't happen, senior lawmakers from the House and the Senate will continue to meet. Recent negotiations fell apart Friday when delegates inserted a transportation spending plan into discussions about building projects at state colleges. Since they agreed to back down on their earlier demand for higher taxes, senators have said they would debate transportation only after the budget is complete in other areas.

After the blowup, senators left Richmond, once again raising the possibility that the two sides would fail to reach an agreement by July 1. On Monday, the two sides traded strained and argumentative letters but decided to return to the negotiating table Tuesday.

McDonnell will issue a formal opinion later this week, according to sources familiar with his thinking who spoke only on condition of anonymity because the opinion had not been released.

McDonnell spokesman J. Tucker Martin would not confirm if or when an opinion would be issued, but he said the office has been researching the matter as the July 1 deadline approaches.

"As this office has researched the issue, we have clearly found the authority and the constitutional obligation to appropriate funds rests with the General Assembly," Martin said. "It's a constitutional imperative that the legislature must appropriate funds."

One of the sources familiar with the opinion said the attorney general will not question Kaine's ability to continue to provide emergency services such as electricity at state-run hospitals or state police patrols of Virginia highways.

As negotiations over the budget bogged down in April, Kaine suggested to reporters that he would go further, keeping most parts of the government operating.

"I am the chief executive, and I'm going to run the state until someone with the power tells me not to," Kaine said. On Monday, Kaine spokesman Kevin Hall said, "There is still time -- not much -- for the lawmakers to do the job they were elected to do."

But lawmakers and others briefed by McDonnell said he believes Kaine's statements of broad powers go far beyond his constitutional authority.

"The governor's statement that he has the power to run the government on his own is clearly erroneous," said House Majority Leader H. Morgan Griffith (R-Salem).

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