The confrontation over Rick Perry’s executive order that all sixth grade girls should be vaccinated against the virus that is linked to cervical cancer is going to have far-reaching effects. If a governor can legally do what Perry is attempting–establish a program that spends money–the balance of power between the executive and legislative branches will be forever altered. The ball is now in Attorney General Greg Abbott’s court, after Senator Jane Nelson, joined by House Ways & Means chair Jim Keffer, requested an expedited AG’s opinion on Perry’s authority to govern by executive orders. The Battle of the Branches has expanded to include letters to Perry asking him to rescind his order. Twenty-six senators signed on (all but Ellis, Hinojosa, Shapleigh, Zaffirini, and the recuperating Mario Gallegos), and Carl Isett is circulating a similar letter in the House. Dianne Delisi, the chair of the House Public Health committee, was quoted in today’s American Statesman as saying, “This is nuclear.” Defending Perry’s authority to manage state agencies was spokesman Robert Black, who can’t see a flame without rushing to throw gasoline on it: “No amount of carping, complaining, or yelling and screaming is going to change that.”

Here is the text of the Nelson-Keffer letter to Abbott:

We request your expedited opinion on an issue many legislators believe warrants clarification.

Specifically, may a governor of the State of Texas issue an executive order? If so, does the law provide broad powers to grant executive orders, or are those powers limited to specific circumstances? If the latter, what are those circumstances? Does an executive order that requires the appropriation of funds violate Article 2, Section 1 of the Texas Constitution? Is the Legislature solely responsible for designating the purposes and uses to which public money is devoted? What recourse does the Legislature have to override an executive oprder?

Please expedite your response to afford ample time for the 80th Legislature to adequately act during this session.

While I was researching this item this morning, I looked at the constitution, and Article 2, Section 1 (the only section in Article 2), seemed to be very much in point:

DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS; EXERCISE OF THE POWER PROPERLY ATTACHED TO OTHER DEPARTMENTS. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no pwerson, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

This is your basic textbook statement of separation of powers. I also came across Article III, Section 1 (“The Legislative power of this state shall be vested in a Senate and House of Representatives, which together shall be styled, ‘The Legislature of the State of Texas.'”) and Article III, Section 30 (“‘No law shall be passed, except by bill….'”).

The expressed constitutional powers of the governor are few. He is the commander-in-chief of the state’s military forces, he can convene the Legislature in special session, he can commute sentences and grant pardons, he can cause the laws to be faithfully executed, he can fill vacancies in state offices, and he can approve or disapprove of bills. His authority to govern by executive order must rest upon the implied powers, if any, conferred by Article 4, Section 1:

OFFICERS CONSTITUTING THE EXECUTIVE DEPARTMENT. The Executive Department of the State shall consist of a Governor, who shall be the Chief Executive Officer of the State…. (The remainder of the section names the other executive officers, starting with the lieutenant governor.)

Dusting off my long-idled license to practice law, I think it’s clear that the constitution, read as a whole, vests the power to make laws in the Legislature, not the governor, and that the simple statement that the governor is the chief executive officer of the state was not intended to confer broad powers. Indeed, Article 4, Section 24, suggests the kind of executive authority that is contemplated by the governor’s designation as CEO:

…The Governor may, at any time, require information in writing from any and all of [the officers or managers of the Executive Department], upon any subject relating to the duties, condition, management, and expenses of their respective offices and institutions, which information shall be required by the Governor under oath, and the Governor may also inspect their books, accounts, vouchers and public funds; and any officer or managfer whom at any time, shall wilfully make a false report or give false information, shall be guilty of perjury, and so adjudged. and punished accordingly, and removed from office.

I don’t see how Perry can win this fight. There just isn’t enough law on his side. It may end in a compromise in which the Legislature passes a bill along the lines of what Dewhurst has said: “[W]hile this program is very well intentioned, the Legislature was never consulted. I want to work with Governor Perry and the Legislature by looking at a program that is voluntary, where you opt in rather than opt out.” Dewhurst has a bit of a conflict of interest here. He ought to be defend the Legislature against the governor, but he is the presumed Republican frontrunner for governor in 2010, and the stronger the office is, the more he benefits in the future. Meanwhile, Abbott is in a bit of a peculiar position as well. He wants to run for lieutenant governor in 2010, and his long-term interest lies in protecting the Legislature’s prerogatives.

I do believe this: The resolution of this question will be the most important decision to come out of the 80th Legislature.