After puzzling over the legal arguments, I’ve come to some conclusions about the ongoing showdown between Governor Abbott and the Legislative Budget Board. The substantive debate is interesting and has potentially serious implications. But making sense of the respective legal arguments is not for the faint of heart, so I’ll summarize my conclusions before I lay out my reasoning:
This is a separation of powers case. On the surface, the adversaries are Greg Abbott and Ursula Parks, the director of the Legislative Budget Board, and they’re tousling over the meaning of a phrase: “items of appropriation.” But the underlying issue is the balance of power between the legislative and executive branches of state government. Abbott is advocating for a broader interpretation of the governor’s line-item veto power. For him to prevail would mark an expansion of the governor’s power and an abridgment of the Legislature’s.
The governor’s interpretation is intuitively appealing, and his reasoning is analytically sound, in my view. Since the question may eventually be resolved in court, state law may eventually conform to his interpretation. After years of covering the Texas Attorney General’s Office as helmed by Greg Abbott, I think everyone should proceed on the assumption that facing off against the guy’s team in court is bringing a knife to a gunfight. Frankly, I’m a little bit nervous about publicly disagreeing with the governor’s analysis in this case, not because I fear retribution, but out of a slightly superstitious concern for being totally wrong in public. But it can’t be helped. The philosophical debate has been presented in the form of a legal question, which the comptroller, Glenn Hegar, has to answer. I can see why Parks’ analysis would strike the governor as obnoxious, but on closer inspection, the law she’s assessing is in fact obnoxious from a governor’s perspective, because it blatantly favors the Lege’s authority in the budget process. As it stands, in other words, she is correct.
And because this is a separation of powers case, I hope the Lege prevails if the question does end up in court. As the governor’s office has observed, citing Alexander Hamilton in the Federalist Papers, “legislatures are not infallible”; Lord, he wasn’t kidding. But governors aren’t infallible either. Candidly, I like Abbott. I think his gubernatorial administration is off to a strong start, and having been seriously spooked by the Texas Senate’s collective defection from the state’s core values, I want the governor to be as strong as possible: I’m counting on him and the Texas House to keep our great state on stable footing. At the same time, Abbott is among the top-flight Texas conservatives who have influenced my own thinking over the years in various ways. He really has only himself to blame for this example: I’m a sworn enemy of executive overreach. I’m relieved that Parks is right, because I’m rooting for the Lege. Nothing against Abbott, but any extension of his constitutional authority is an extension to all future governors of Texas, whoever they may be. And although Abbott is extremely popular among the legislators, they need to be careful here. Any power they concede now will be conceded permanently. They shouldn’t give the governor any power a Lege might want to use someday. And they shouldn’t give Abbott any power that they wouldn’t trust a Dan Patrick or Wendy Davis to wield; there came a pharaoh who knew not Joseph.
And with that, let’s tackle some lawyering.