Sunday, May. 24, 2009

Scoppe: A closer look at Sanford v. McMaster

THE MOST obvious thing to say about Gov. Mark Sanford’s lawsuit is that he filed it in federal court because everybody knows he will lose in the state Supreme Court. That is not — as one reporter implied in a question to the governor on Thursday — because of any home cooking. It’s merely because the court already made it clear, when it dismissed a premature lawsuit on the same conflict, that the Legislature is fully within its rights to pass a law ordering the governor to request federal stimulus funds — as Henry McMaster had spelled out in his earlier attorney general’s ruling.

The most striking thing about the suit is how little it reads like a typical lawsuit, and how much it reads like a news release — from the very first sentence, where it refers to “massive new federal spending” to its repeated references to “Governor Sanford” instead of the usual “plaintiff” to completely irrelevant (from a court’s perspective) explanations of why Mr. Sanford has taken the political position he has on the $350 million in federal funds that the Legislature has ordered him to request. I’ll leave you to ponder the implications of that: Is it because the suit is nothing more than a publicity stunt? Is it because it’s an act of desperation? Or perhaps both — a desperate attempt to extend his 15 minutes of fame?

The most extraordinary thing about the suit is what it is that Mr. Sanford is ultimately requesting.

The suit asks a federal judge to strike down the state law ordering him to request the money — that is, to stop him from being forced to act. But Mr. Sanford already has said he’s not going to act. And since Mr. McMaster hasn’t run to the microphones — a la Craigslist — and declared that he’s about to prosecute the governor for refusing to obey the law, there’s nothing for a federal judge to stop.

There will be something for a federal judge to stop only once our Supreme Court orders the governor to request the funding. (That is almost certain to happen, but it can’t until a “ripe” lawsuit is filed.)

So if Mr. Sanford prevails, he will get a federal order that invalidates a direct order by our state Supreme Court. That strikes me as a rather strange request for a man who believes (as do I) that federal courts shouldn’t go around telling states what to do and who has built his career around putting principles such as this ahead of such practicalities as winning.

The most important thing to say about the lawsuit from a practical perspective is that it’s highly unlikely to succeed — or even to tie up the funds, as legislators and other critics of the governor are breathlessly warning.

In the first place, a languishing lawsuit does nothing to prevent our state from receiving federal funds; Mr. Sanford will have to obey the state Supreme Court unless or until a federal judge issues an injunction. And he won’t get an injunction unless a judge believes he’s likely to win the suit.

But the suit might very well be thrown out, because federal court rules generally require a plaintiff to demonstrate personal injury — for instance, that the law will cause him to lose his job or his property. Mr. Sanford claims no such personal injury in his suit, and it’s hard to imagine where he could come up with one.

If the suit isn’t thrown out of court, it is practically inconceivable that any federal judge would be willing to consider the claim that the Legislature has violated the separation of powers clause of the state constitution, which is fully half of Mr. Sanford’s claim and accounted for far more than half of the arguments he made at the news conference he called to explain his suit.

That leaves a federal judge to ponder the claim that the state law ordering Mr. Sanford to act is preempted by the federal law that he says gives governors complete discretionary authority over whether to apply for federal stimulus funds. Don’t hold your breath on that one.

Outside of California, federal judges are loathe to find that state laws are preempted by federal laws unless 1) the federal law clearly says that it pre-empts state laws to the contrary or 2) the state law conflicts with some overriding goal of the Congress.

In this case, as one constitutional law expert who has studied the federal law told me, there’s nothing in the federal law to indicate that the Congress was doing anything more than picking a handy point person in each state when it required governors to sign the letter requesting funds. Indeed, the federal statute refers to the steps to be taken by “the Governor of a State desiring an allocation.” That suggests that it is “the State” that is “desiring” funding, with the governor merely acting on behalf of “the State.” From the courts’ perspective, there is no clearer statement of a state’s desires than its laws.

Finally, let’s assume that a federal judge gives Mr. Sanford precisely what he asks for: an order “enjoining the Attorney General from enforcing Part III, Section 1 of the General Appropriations Law” — that is, the proviso ordering him to act. He still might be forced to request the funding. In its order dismissing the premature lawsuit last month, our state Supreme Court essentially said that the Legislature didn’t even have to pass the law directing the governor to act — it merely had to include the federal funds in the state budget, and the governor would be forced to ask for them.

It’d be a shame for this suit to be decided on such a technicality. But I sort of doubt it’ll come to that.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.

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