There are at least six reasons why the most important vetoes that Gov. Jim Doyle made in the 2005-07 state budget are unconstitutional.
The text, history, design and structure of the Wisconsin Constitution all make clear that legislation must be authorized and enacted by the Legislature in order to be a legitimate exercise of governmental power.
The vetoes violate this basic requirement of our fundamental law by deleting words, digits and punctuation marks from the bill that the Legislature passed in order to create new spending mandates that the Legislature did not authorize.
It is as if someone found your checkbook on the street and wrote checks on your account without your permission, except that these checks are written for amounts in the hundreds of millions of dollars.
In one example, Doyle fabricated a new sentence to create $750 million of spending that the Legislature did not authorize. It reads, “The Department of Transportation shall transfer to the general fund from the transportation fund in the 2005-07 fiscal biennium, $427,000,000.”
In another section, he cobbled together an appropriation for the Department of Public Instruction that reads, “The secretary of administration shall transfer from the balances of the general fund an amount equal to $330,000,000 during the 2005-06 fiscal year and the 2006-07 fiscal year to any appropriation under section 20.255 of the statutes.”
In a third section of the budget bill, he manufactured a provision that reads, “The secretary of administration may transfer moneys to any appropriation account or fund from the general fund.”
None of these provisions appears anywhere in the text of the budget bill that the Legislature passed and authorized to become law.
Here are six reasons why the vetoes are unconstitutional:
1). The Wisconsin Constitution provides that “the legislative power shall be vested in a Senate and Assembly.”
The state Supreme Court has held that this provision gives the Legislature the “power to declare whether or not there shall be a law; to determine the general purpose or policy to be achieved by the law; (and) to fix the limits within which the law shall operate.”
If that interpretation is correct, governors cannot have any legitimate power to create legislation that the Legislature did not approve.
2). The Wisconsin Constitution requires “all laws of the state” to have an enacting clause, which declares that “the people of the state of Wisconsin, represented in Senate and Assembly, do enact as follows.”
However, the Legislature plainly did not authorize or enact any of the provisions cited above that Doyle created with vetoes.
3). The Wisconsin Constitution provides that “no money shall be paid out of the treasury except in pursuance of an appropriation by law.”
Since a “law” is defined as “an act of the Legislature” that is “to become effective as a rule of conduct when published,” a “law” that the Legislature did not “enact” would be a contradiction in terms.
4). In 1998, the state Supreme Court held that the state Legislature “clearly has the appropriation power.”
It defined an “appropriation” as “the setting aside from the public revenue of a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object, and no other.”
Yet, Doyle has purported to create three appropriations that the Legislature did not authorize.
5). Doyle claims that he acted properly because the Constitution provides that “appropriation bills may be approved in whole or in part by the governor.”
But to “approve” means “to judge and find … acceptable,” and that is not what the governor did.
6). Finally, when the partial veto power was created in 1930, there was no intent, on the part of anyone, to give governors a power to create legislation without the concurrence and consent of the Legislature.
Instead, the purpose was to permit governors to reject “items” of an appropriation bill, instead of being forced to swallow “bad” legislation with the “good,” so that all of the “items” that remained after a partial veto would be legislation that had both been authorized by the Legislature and concurred in by the governor.
Fred Wade is a Madison attorney who has represented legislators in unsuccessful attempts to have courts declare the partial veto unconstitutional.