Scoppe: Moment of decision

Associate EditorAugust 19, 2012 

TWO AND a half years into his first term in office, Henry McMaster made a decision that would define his tenure and set a new standard for attorneys general: He would defend the state constitution, even when that meant opposing the government.

Previous attorneys general had defended the constitution when the executive and legislative branches were at odds, usually taking the safe route of siding with the Legislature. But when private parties sued the state, attorneys general defended the state, or else just stood aside and allowed the agency being sued to defend itself.

In Sloan v. Wilkins, Mr. McMaster agreed with a private party that said the Life Sciences Act was an orgy of unconstitutional bobtailing. In fact, he developed the nuanced argument that became the state Supreme Court ruling, which in turn led to a string of cases that have done more than most people realize to rein in the once-all-powerful General Assembly.

It was the sort of thing we should be able to take for granted — after all, why elect an attorney general if he’s just going to kowtow to the rest of the government? — but in our state, it was a bold display of professionalism and integrity.

A year and a half into his term as Mr. McMaster’s successor, Alan Wilson could face his own Life Sciences moment. A decision that will define him as either a courageous defender of our constitution, or not. The operative word is “could,” but hold that thought for a moment.

At issue is the lawsuit challenging the Budget and Control Board’s vote to raise health-insurance premiums for state employees after the Legislature appropriated funds to cover the cost.

Gov. Nikki Haley, who with Comptroller General Richard Eckstrom and Treasurer Curtis Loftis voted for the fee increase over the objection of the two legislators on the board, frames the issue as one of fiscal prudence. I suspect Mr. Wilson would agree, as do I, that taxpayers shouldn’t have to pay for the entire increase. But that’s a political argument.

It is painfully clear to anyone who has read the court’s recent cases that the board violated the separation-of-powers doctrine, which reserves to the Legislature the power to appropriate money.

Although the Legislature didn’t include language in the budget spelling out its intention, its intention was abundantly clear: The $51 million allocated for “Rate Increases: Health Insurance: Employer Contributions” was to cover the rate increases for employees’ and retirees’ health insurance.

The governor says the budget allows but does not require money to be spent. But as one constitutional law expert reminded me, “the board cannot refuse to spend monies appropriated for a particular purpose.”

If you’re a constitutional-law geek, you might recognize that reasoning from two other separation-of-powers cases that the attorney general’s office won for our constitution.

In Condon v. Hodges, Democratic Gov. Jim Hodges and the treasurer and comptroller general used a convoluted mechanism to reallocate $29 million to suit their preferences, Republican Attorney General Charlie Condon sued, and the court ruled that they did not and cannot have the power to alter the Legislature’s appropriations.

The second case is more politically akin to the current case. In Edwards v. State, a private party sued to make Gov. Mark Sanford obey a state law that required him to request federal stimulus funds. Mr. Sanford’s position was popular among Republican primary voters, whom Mr. McMaster was wooing in a Republican gubernatorial primary, which he ultimately lost to Ms. Haley.

Still, he sided with the plaintiff and, as in the Life Sciences case, again laid out the winning argument: The power to appropriate money lies solely with the Legislature. Even if it wanted to delegate that authority to an executive agency, as Gov. Haley argues it did in the current case, the constitution bars it from doing so.

But there’s a crucial difference between Edwards and the suit filed Wednesday by state employees: The former was filed against the state, which automatically brought the attorney general into the case; the latter is against Ms. Haley, Mr. Eckstrom, Mr. Loftis and the board, so the attorney general is not automatically involved.

Ideally, one or all of the defendants would ask the attorney general to represent them. Indeed, Ms. Haley said at the budget board meeting that she would reverse her vote “if the attorney general comes back and tells us” the action was prohibited. But the attorney general doesn’t issue advisory rulings once a suit is filed — although he certainly could file a friend-of-the-court brief — and the governor since has dug in her heels.

Mr. Loftis, however, says he would change his vote if he’s convinced that the board acted lawlessly; what better way to be convinced than to ask the attorney general to represent him, as he sees fit? Absent that, Mr. Wilson has the option of taking over the case, although that would be so provocative that it might be too much to ask.

This is not too much to ask: The plaintiffs should add the state as a defendant. And Mr. Wilson should make his own mark as an attorney general who defends our constitution, even, perhaps especially, when that means opposing our government.

Ms. Scoppe can be reached at cscoppe@thestate.com.

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