South Carolina Gov Mark Sanford Gets Stimulated

Last Thursday the South Carolina Supreme Court took GOP Governor Mark Sanford to the woodshed, ruling in no uncertain terms that he does not possess the power under state law to refuse certain federal fiscal stimulus funds (ARRA). For reasons I surmised here in three earlier postings, “Governor No!” had sought to refuse to apply for some $700 Million allocated under the portion of ARRA known as the State Fiscal Stabilization (SFS) funds. These are primarily education-related funds but also include money for other public service needs. The Guv had actually wanted to accept these funds, but on his ultimately unacceptable terms alone. He’d hoped to apply the funds to paying down state debt rather than, well, directly helping people during the recession, particularly the education system. He’d even semi-politely asked President Obama on two occasions for a waiver but had been refused – the funds, according to the administration, were only for the stated purposes and that, as they say, is that.

To their eminent credit the South Carolina legislature weighed in against Sanford’s grandstanding, Dems and Repubs alike. The education establishment piled on; the mayors added their weight to the protest; and the citizenry added their voices as well. Unfazed, the Guv maintained he was worried about the “long run,” i.e. having to accept funds that he labeled short term infusions rather than paying down some of the state’s long term debt. That schools and other public services would suffer as a result of his refusal to apply for or accept the SFS funds were of no concern to Sanford. He’s all about “long term.” But, as Keynes knew, “In the long term we’re all dead.” Keynes went on to say that policy makers do a disservice “during tempestuous times to say that long after the storm has passed that the ocean is again flat.” And now, perhaps – if there is a just deity – as a result of this political miscalculation Guv Sanford may well be a short term governor and long after his self-inflicted storm has passed his career will perhaps be flat as well.

In any event, after the U.S. District Court for the District of South Carolina summarily kicked the combined cases back to South Carolina on June 1st, the South Carolina Supreme Court quickly scheduled oral arguments. (For the really interested: Oral Argument video (courtesy of South Carolina ETV), and the parties’ Briefs and Answers.)

On June 4th the Court rendered its decision. Without dissent, the Court ordered Governor Sanford to apply for the SRS funds based upon principles drawn the state’s Constitution, statutory law, and legal precedent – a trifecta. The Court conceded nothing. Thus ended Sanford’s “freedom campaign,” i.e. his freedom to unilaterally keep his state free from the danger of ARRA/SRS federal education funds. It also ended his “state rights” campaign as well, and quite satisfactorily to all of us who believed it both a political ploy and a constitutionally dubious proposition. It’s rather refreshing irony: in fighting the federal right to “force” him to accept funds he did not want, he lost the battle and the war in his own state court, based upon its own state law, buttressed by the actions of his own state legislature. Another trifecta.

For the entire South Carolina Supreme Court decision, click here. Below are my comments and (indented) excerpts from the opinion.

(If, however, you’re pressed for time and you’d like a very brief summary of the decision – about 10 seconds – here’s the S.C. Chief Justice’s words from my phone conversation that I was permitted to record just prior to the decision going public. I asked the Chief Justice, “What is the main thrust of your imminent decision regarding Governor Sanford?” Here’s his response, a They Will Say ANYTHING! exclusive:)

Should you desire more detail, however, by way of background, in what proved to be a coup de grace despite legal scholars’ doubts, the South Carolina legislature had (1) on May 13, 2009 specifically appropriated the ARRA funds, including the SFS funds in the state budget: “accept all available funds from the State Budget Stabilization Fund contained within the American Recovery and Reinvestment Act of 2009 and to authorize expenditure of such funds as delineated in this act,” and then (2) on May 14th, after Sanford had mouthed off spectacularly about the evils of ARRA, adopted a concurrent resolution to accept the ARRA funds should the Governor actually follow through on his threat to refuse them. (Section 1607(b) of ARRA provides: “If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State”), and finally (3) on May 21st they overrode Sanford’s veto, a convincing and resounding statement of disapproval of “Governor NO!”

The Court:

One of the Governor’s duties is to submit a recommended state budget to the General Assembly. S.C. Code Ann. § 11-11-15 (Supp. 2008). The Governor has the ability, after the General Assembly has passed a budget, to veto items or sections contained within the budget. S.C. Const. art. IV, § 21. However, if any item or section of the bill not approved by the Governor is overridden by two-thirds of each house of the General Assembly, it becomes a part of the law, notwithstanding the objections of the Governor. Id. “Once the legislature enacts a law, all that remains is the efficient enforcement and execution of that law.” Knotts v. S.C. Dep’t of Natural Resources, 348 S.C. 1, 7, 558 S.E.2d 511, 514 (2002). . . Accordingly, under South Carolina law, Governor Sanford is obligated to take the actions required to apply for and accept the SFS funds.

. . .

Under the constitution and laws of this State, the General Assembly is the sole entity with the power to appropriate funds, including federal funds. Therefore, the General Assembly has the authority to mandate that the Governor apply for federal funds which it has appropriated. Because the General Assembly has overridden the Governor’s vetoes of the provisions of the Budget concerning the SFS funds, those provisions are now law and must be executed by the Governor. Accordingly, under South Carolina law, Governor Sanford is obligated to take the actions required to apply for and accept the SFS funds.

Note the strength of the court’s phrasing: “notwithstanding the objections of the Governor”; “Governor Sanford is obligated to take the actions required”; and “the General Assembly has the authority to mandate that the Governor apply for federal funds which it has appropriated.” No ambiguity there, and its citations are to the South Carolina Constitution, statutes, and judicial precedent.

One of Sanford’s continual claims was drawn, he asserted, from states rights concepts as old as the Nation’s existence, yet his real concern was for governor’s rights. His state legislature had, after all, voted clearly to accept all ARRA funds, including SRS education funds – they had voiced their state’s rights. In any event, in court, he contended that the state legislature may not supersede his decision when the ARRA, according to Sanford’s interpretation of a provision in the SRS (Sec. 14005(c)), provides him sole discretion to accept SRS funds. Do the legislature’s actions not, he asked, violate the Supremacy Clause of the federal Constitution and thereby thwart the purposes of ARRA? Interesting his concern for federal power . . . any port in a storm, I suppose.

The Court:

Congress clearly intended to provide funds to any state desiring to receive those funds. [ARRA provisions] evidence Congress’ intent to include the legislatures of the states in that decision. However, there is no clear intent in the ARRA to give the Governor absolute discretion over whether to apply for funds as a condition of the State’s receipt of the funds.

The ARRA contains no plain statement of Congress’ intention to alter the unquestionable right of a state to constitutionally provide for the establishment and operation of its government. Further, the action of the General Assembly in requiring Governor Sanford to apply for the SFS funds in no way obstructs the purposes of the ARRA. To the contrary, the action of the General Assembly promotes the purposes of the ARRA.

We accordingly construe the participial phrase “desiring to receive an allocation [or seeking a grant]” in §14005 as modifying the word immediately preceding it—“State”—to avoid any conflict between our State constitutional allocation of power and the ARRA. With this construction, it is the State which must desire to receive the funds and grants, not merely the Governor. The Governor is the officer designated by Congress to perform the ministerial act of submitting the State’s application for the funds.

Under South Carolina law, the General Assembly has the sole authority to direct the appropriation of funds and, therefore, is the entity which decides whether the State desires to receive the funds. In its appropriation of the SFS funds in the Budget and its concurrent resolution, the General Assembly has acted on the Governor’s §1607(a) certification and expressed the State’s desire to receive the funds. At this stage in the process, the Governor certainly has no discretion to make a contradictory decision on behalf of the State.

We hold the Governor must apply for the SFS funds.

Moreover, the Court reminds the Governor that he, and any governor, is something less than “King of South Carolina,” ruling that after the legislature enacts a budget and, in this case, includes the SRS funds appropriation, the Governor is primarily in a ministerial capacity. It is his duty to carry out the legislature’s wishes. He has no discretion whatever. The Court could not be clearer.

The Court [Emphasis added]:

The duty to execute the Budget, as properly enacted by the General Assembly, is a ministerial duty of the Governor. He has no discretion concerning the appropriation of funds. The application for the SFS funds is a simple, definite duty arising under the conditions specified in the ARRA and leaves nothing to Governor Sanford’s discretion. It is a ministerial duty. Because the General Assembly, following Governor Sanford’s certification and request that the ARRA “funds be released,” included the SFS funds in the Budget and by virtue of its concurrent resolution, the clear intent is the State of South Carolina desires the SFS funds, and Governor Sanford must ask for the funds.

While we recognize and respect Governor Sanford’s sincerely held beliefs concerning the ARRA, those convictions do not alter the ministerial nature of the legal duty now before him. The decision on a request to mandamus the Governor is an extremely delicate one, which is undertaken with great reluctance and consciousness of its great gravity and importance. Blalock v. Johnston, 180 S.C. at 43, 185 S.E. at 52. However, when mandamus is warranted, “the judiciary cannot properly shrink from its duty.” Id. at 50, 180 S.E. at 55.

We hold under the circumstances presented that a writ of mandamus is warranted and issue a writ of mandamus to compel Governor Sanford to apply for the SFS funds and take all legal and necessary steps to effectuate the State’s receipt of the SFS funds for the purposes as set forth by Congress.

Governor Sanford had some preposterous things to say on the preposterous POX News. He did, however, wave the white flag and acceded to the South Carolina Supreme Court decision and applied for the SRS funds today. For his application and defiant cover letter to U.S.Education Secretary Arne Duncan click here.