All lawyers remember the law school exam questions that involve the appearance of a client with a myriad of legal problems that you, as the attorney for the client, are supposed to be able to advise upon. In these hypotheticals, the facts are stated clearly. Unfortunately, in real life, clients rarely provided you with all the necessary facts without a fair amount of prodding.
The legal questions regarding the penchant for Republican governors to turn down federal funds conditionally granted to their states (this means that the federal government has specifically mandated the use of the funds being given to the state. The funds have been "earmarked" if you will) require a better understanding of the facts than one usually gets from your run of the mill news report. Take for example, Florida Governor Rick Scott's rejection of federal HSR (high speed rail) funds for Florida. Here are some unanswered questions with regard to Scott's actions: (1) What funds is Scott purporting to reject?; (2) What power is Scott relying on to reject these funds?; (3) What provisions apply to these funds? What do we know about these questions? Less than we think. Let's explore that and the legal answers we can glean from what we do know on the flip.
Here is how the Miami Herald reported Scott's announcement:
Florida Gov. Rick Scott on Wednesday rejected the federal government’s offer of $2.4 billion to build the line — prompting cheers from his tea party base, and harsh criticism from leading Florida Republicans and Democrats alike — squashing a project that has been decades in the making.
Can Governor Scott do this? Under what authority? First some general principles: federal law is supreme over state law by virtue of the Supremacy Clause
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
However, this principle has been limited by the Supreme Court by reference to the Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In Printz v United States,the Court stated that:
It is incontestible that the Constitution established a system of "dual sovereignty." Gregory v. Ashcroft, 501 U.S. 452, 457 (1991); Tafflin v. Levitt, 493 U.S. 455, 458 (1990). Although the States surrendered many of their powers to the new Federal Government, they retained "a residuary and inviolable sovereignty," The Federalist No. 39, at 245 (J. Madison). This is reflected throughout the Constitution's text[. . .] [L]ater opinions of ours have made clear that the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs. In Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981), and FERC v. Mississippi, 456 U.S. 742 (1982), we sustained statutes against constitutional challenge only after assuring ourselves that they did not require the States to enforce federal law.
Because of this jurisprudence, it seems clear that the federal government can not impose upon a state the requirement that it build a high speed rail system. For that reason, the method by which the federal government enlists state governments to carry out federal programs and policies is through conditional spending provisions (the classic example would be highway funding conditioned upon a state's adopting the 21 year old drinking age.) Jack Balkin states the question as follows:
Spending clause jurisprudence is premised on the state government's consent. But what is the state government? It all depends on how the state organizes its decisional processes, so that the federal government may appropriately say that the state is estopped from claiming that it has voluntarily taken the funds (and therefore consented to the regulatory strings attached to the funds).
If authorized state consent for funds requires the governor's consent, then there is no state consent. (To use an extreme example, the federal government couldn't say, if the janitor in the capitol building consents, there is state consent.) In order to claim state consent to federal funds, the federal government must respect the way the state has organized its decisional functions.
(Emphasis supplied.) Some are questioning the Governor's power to speak for the State with regard to the high speed rail project. From the previously cited Miami Herald article:
State legislators questioned if the governor had the authority to unilaterally kill high-speed rail, and members of Florida’s congressional delegation discussed with U.S. Transportation Secretary Ray LaHood ways to circumvent Scott’s decision.
Good question. What's the answer? It's hard to say because from what I have been able to gather, Scott did not explain the basis for his announcement. Did he mean he would veto any bills that would provide for expenditures on the high speed rail project the federal government had provided funds for? Did he mean that he would not permit the use of such funds by the Florida Department of Transportation? Or did he mean he would simply, on his own authority, flout federal law and use the funds anyway he pleased? The answers to these questions are key to determining what can be done to overcome Scott's actions. In a Friday Orlando Sentinel article it was reported that:
U.S. Department of Transportation Secretary Ray LaHood intends to meet either in person or by phone Friday with Florida elected officials, likely including Democratic U.S. Sen. Bill Nelson and Reps. John Mica, R-Winter Park, and Corrine Brown, D-Jacksonville, to discuss ways of keeping the project alive [. . .]
What options may they be considering? The issues, as I see them are (1) Can Scott do what he is purporting to do?; (2) If he can, what can be done about it?; (3) who has the authority to take the necessary action?
The first question is, in my estimation, the hardest to answer right now because Scott really did not say what precisely he would do. This suggests that the best way to analyze the situation is to try and determine what Scott CAN do. Let's start with the Florida Constitution:
The supreme executive power shall be vested in a governor[. . . ] The governor shall take care that the laws be faithfully executed, commission all officers of the state and counties, and transact all necessary business with the officers of government. [. . .] The governor shall be the chief administrative officer of the state responsible for the planning and budgeting for the state.
Not seeing the express power there. Let's take a look at the legislative power provisions to see if it provides some answers:
SECTION 8. Executive approval and veto.—
(a) Every bill passed by the legislature shall be presented to the governor for approval and shall become a law if the governor approves and signs it, or fails to veto it within seven consecutive days after presentation. [. . .] In all cases except general appropriation bills, the veto shall extend to the entire bill. The governor may veto any specific appropriation in a general appropriation bill, but may not veto any qualification or restriction without also vetoing the appropriation to which it relates.
Scott can line item veto any expenditures regarding the high speed rail project for which the federal government has offered to provide funding. Is this what he meant? Possibly. Let's assume, for the sake of argument, that it is what he meant. Then what can be done? The first option is to consider whether the project can move forward without state involvement. It appears that that is one of the options being considered:
U.S. Sen. Bill Nelson was in Washington to meet with the federal transportation secretary, and members of Florida's congressional delegation. "A metropolitan planning organization in Tampa and a rail authority in South Florida have volunteered to step forward in place of the state to accept oversight of the bullet-train project and the $2.4 billion from Uncle Sam. Lawyers are researching how to do it," Nelson said.
Can this be done? I think it depends on the language of the funding provision in the budget - was the monies in the funding provision solely offered to the State of Florida? Frankly, I do not know nor have I been able to find the information regarding the federal funding for the Florida high speed rail project for 2011. If the monies are specifically to be given as conditional funding to the State of Florida, without providing discretion to the Department of Transportation for its disbursement, plans to bypass Scott may be out of luck. However, if the funding language provides flexibility, perhaps this can work. Indeed, it seems the most promising avenue.
There are indications that flexibility is included in the funding language:
The Obama administration is taking $1.2 billion in high-speed rail money away from Ohio and Wisconsin and awarding it to 12 other states, including Massachusetts, Transportation Secretary Ray LaHood said yesterday.
It seems unlikely that the federal government would be permitted to divert the funds to projects in other states while being prohibited from providing funding for the Florida project through entities other than the State of Florida. But only a review of the actual funding provisions could permit a more concrete analysis.