State Con Law Case of the Week: Vetoes and Clever Formatting

Anthony Sanders · November 19, 2021

It’s a familiar story that if Congress passes a bill it goes to the President for his signature, and he can then either sign it or veto the thing. Then, Congress can still make it become a law but only if two-thirds of each house vote to override the veto. But it’s a not-as-familiar tale that state governors often have more tools at their disposal in the form of line-item vetoes, where governors can veto part of a bill, but leave the rest to become a law.

But this raises a question: How little of a bill can a governor veto? A section? A subsection? A specific sentence, or may just a word? The truth is depending on the state, governors sometimes have all kinds of discretion to do all kinds of line-item vetoes. How aggressive they can be was before the Washington Supreme Court last week in Washington State Legislature v. Inslee.

There, the state legislature passed a transportation appropriation bill, spending money on various grants that the Washington State Department of Transportation would administer. One sentence, used seven times in various places, barred the WSDOT from considering a vehicle’s fuel type in handing out some of the grants. The governor vetoed that sentence all seven times it was used, but only that sentence. He did so under Article III, Section 12 of the Washington Constitution, which provides:

If any bill presented to the governor contain several sections or appropriation items, he may object to one or more sections or appropriation items while approving other portions of the bill: Provided, That he may not object to less than an entire section, except that if the section contain one or more appropriation items he may object to any such appropriation item or items.

Thus, in determining whether his line-item veto was valid we have to ask whether the specific language was a “section” (but not less than an “entire section”) or an “appropriation item.”

The legislature itself sued the governor, asking for a declaration that the veto was invalid. In response the governor argued it was within his authority under Article III, Section 12, and, alternatively, that the fuel-type condition itself violated the state constitution’s single subject clause and a clause forbidding amendment of a law “by mere reference to its title.”

The case made its way to the Washington Supreme Court, which ruled for the legislature. The court emphasized that as this was a battle between two other branches of government it “must not abdicate its constitutional duty to act as an impartial referee.” (If only courts did the same when the dispute is between the government and a private individual!) It provided an interesting history of the Washington Constitution along the way, explaining that it used to be that the state constitution gave very wide powers to the governor to veto, and basically revise, legislation, allowing him to veto “sections” or “items” without limiting “items” to appropriations. Sometimes in practice this included mere clauses within sentences.

To push back against this the voters approved a constitutional amendment in 1974 changing Article III, Section 12 to the language quoted above. This demonstrated the purpose of the revised provision was to curtail the governor’s veto power. With that in mind the court said there is a general deference to the legislature on what constitutes a “section” or an “appropriation item,” unless a bill is structured in such a way that it appears the legislators are really trying to circumvent a veto (such as lumping together items in a “section” that don’t naturally go together).

Despite the governor arguing the bill was the product of “clever formatting,” the court found that was not the case here. He claimed that the bill could have been structed where the sentence is in one section and the various appropriations merely incorporated it, and he could have then vetoed the one section or appropriation item it was in. However, the court said the legislation was written in a very ordinary manner and thus that the one sentence fuel-type condition was not a disguised section itself and not even an “appropriation item.” It was just a restriction on how an appropriation could be used. The court pointed out the governor could have vetoed the various appropriations, but he didn’t.

On the other claims the court also largely deferred to the legislature and found there was no single-subject problem nor did it revise legislation through “mere reference to its title.” Check the opinion out for some of these details, which are interesting in their own right.

If you want to learn more about line-item vetoes, Judge Jeffrey Sutton’s great new book on state constitutions Who Decides? States as Laboratories of Constitutional Experimentation (which I’ll have more to say about soon) has a chapter on it. One of the most famous uses (or abuses) of the practice is in Wisconsin, where the governor can effectively rewrite bills by striking words or even characters. When Governor Tommy Thompson used this power to great effect someone quipped “we might as well just pass the phone book” because he’d just rewrite it anyway. The Washington governor’s current powers seem quite mild in comparison.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.