Texas’ Problem Probably Isn’t A Criminal Governor, It Is A Terrible Constitution

CREDIT: AP Photo/Austin Police Department

Texas Governor Rick Perry's mugshot

Texas Gov. Rick Perry (R) has good reason to be confident that he will escape felony charges alleging that he misused his veto power in a failed attempt to coerce a Democratic prosecutor into resigning. As ThinkProgress explained on Friday, shortly after the indictment was announced, the charges against Perry will most likely need to “overcome a significant constitutional obstacle.” The Texas Constitution gives Perry broad discretion in how he exercises his veto power, and the legislature’s power to regulate how Perry uses this power is probably narrow at best.

Perry was booked Tuesday on the charges laid out in the indictment, and he did his best to turn the booking process into political theater emphasizing his own certainty that the charges will not stand. The governor spoke to reporters both before and after he entered an Austin courthouse to be photographed and fingerprinted. His booking photo looks more like a Glamour Shot than a mug shot. After he was booked, Perry went out for ice cream.

In the short term, Perry’s indictment is also unlikely to impact his day-to-day life when he is not meeting with his defense lawyers to discuss his case, as there is no outstanding arrest warrant naming Perry. (He will want to avoid gun shows, however, while his indictment is still pending. Under federal law, it is illegal for a person who is under indictment for a felony “to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”)

Meanwhile, Perry’s legal team is already preparing to attack the indictment on constitutional grounds. Shortly after the indictment was announced, Perry’s general counsel claimed that “[t]he veto in question was made in accordance with the veto authority afforded to every governor under the Texas Constitution.” On Monday, Republican superlawyer Ben Ginsberg reiterated this point, claiming that a successful prosecution in this case could “set a harmful precedent in separation of powers doctrine.”

Perry was indicted because he allegedly threatened to use his veto power, and then actually did use his veto power, in an attempt to coerce a Democrat elected as Travis County District Attorney into stepping down. There are no angels in this conflict between Perry and the district attorney, a woman named Rosemary Lehmberg. Perry can point to the fact that Lehmberg plead guilty to charges that she drove while very drunk in 2013 as evidence that she should not be giving orders to prosecutors. The special prosecutor who brought the charges against Perry can note that a unit controlled by Lehmberg investigated allegations that may tie Perry to a serious corruption scandal. Perry’s veto tried to cut off funding to the unit responsible for this investigation unless Lehmberg resigned.

The potential constitutional problem with the indictment arises from the way the state’s constitution allocates power between the governor and the legislature. The Texas Constitution gives the governor broad discretion to decide which bills he wishes to veto and why he chooses to veto them. Moreover, that constitution contains an explicit protection against one branch of government attempting to encroach upon the powers of the others. “The powers of the Government of the State of Texas shall be divided into three distinct departments,” the state constitution proclaims, “and no person, 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.”

Though we are unaware of a case decided by a Texas state court which lays out if and when the state legislature can regulate the governor’s veto power, there is a United States Supreme Court case that is likely to inform the judges who consider Perry’s case. In 1996, Congress enacted the Line Item Veto Act, which purported to give the president the power to cancel individual line items in a much larger appropriations bill. Two years later, in a case called Clinton v. City of New York, the Supreme Court declared this law unconstitutional. Quoting President George Washington, the Court explained that the president’s veto power allows him to “approve all the parts of a Bill, or reject it in toto.” An ordinary Act of Congress could not upset this balance of power between the Executive and the Legislative branches. Only a constitutional amendment may change the president’s veto power so that he may veto only part of a bill.

The Perry indictment presents a mirror image of the issue in Clinton, but a similar constitutional principle is likely to apply. Unlike the federal constitution, the Texas Constitution explicitly gives Perry a line-item veto power. This is the power he used to cancel funding for the Travis County District Attorney’s Office’s Public Integrity Unit. Yet, if an ordinary act of the legislature cannot reallocate power away from the legislative branch and towards the executive, than it is unlikely that a similar act could take power away from the executive and give it to the legislature. In both cases, the law would seek to reallocate a balance of power set by a constitution, and that requires a constitutional amendment.

Texas courts are not bound by Supreme Court precedents when they interpret their state’s own constitution, so it is possible that the Texas courts will diverge from Clinton. But Clinton is a highly persuasive precedent, and Texas’ courts are dominated by members of Perry’s own party. It is unlikely that they will reject the separation of powers principles established by the Supreme Court. And, if they do not, then it is equally unlikely that they will allow a state statute to be used to criminalize the governor’s use of his own veto power.

So it is fairly likely that Perry will escape conviction due to a constitutional flaw in the indictment. Yet, even though Perry’s actions may be legal, that does not mean that they are defensible on moral or ethical ground. At best, it is likely that Perry used his power in an attempt to place his own party in charge of a key prosecutor’s office. At worst, he may have done so to shut down a specific investigation.

Perry was able to take this action because Texas’ Constitution gives him something the U.S. Constitution does not give the president — a line-item veto. The idea of a line-item veto is not new. One of the key differences between the U.S. Constitution and the Confederate Constitution was the fact that the Confederacy’s founding document gave Jefferson Davis a line-item veto. Indeed, as ThinkProgress has previously explained, the differences between the Confederate Constitution and the U.S. Constitution in many ways map modern day disputes between mainline constitutional thinkers and the Tea Party regarding the appropriate scope of federal power.

Perry’s veto does, however, expose one reason why the Founding Fathers produced a superior document to the Confederate framers. A line-item veto gives one person — the governor or the president — a stranglehold over every single line of the state or federal budget. An executive empowered to make line-item vetoes use their ability to cancel any line in the budget to extort favors from the lawmakers or individuals who benefit from that line-item. Imagine a scenario, for example, where Perry threatened to cut off funding for state legislative aides unless the legislature agreed to build him a much bigger governor’s mansion.

This is more power than a single individual should have, and it is a power that potentially insulates lawmakers from accountability. If there were no line-item veto clause in its state constitution, a majority of the legislature would have needed to agree to Perry’s scheme to attempt to strongarm a district attorney out of office, and then they would have needed to face their voters and potentially be held accountable for that decision. Perry, on the other hand, is a lame duck.

So the indictment against Perry may be unconstitutional, but that does not mean that Perry’s actions were aboveboard or that they were taken in the best interests of the people of Texas. And he was only able to take these actions because of a constitutional provision that should have died with the Confederacy.