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S.C. Stimulus Fight in Federal Court:

Today a federal district court in South Carolina will hear arguments from attorneys for South Carolina Mark Sanford that litigation over whether the state legislature can force the acceptance of federal stimulus money over the Governor's objection should occur in federal court. Two other lawsuits have already been filed against Governor in state court seeking to force him to accept the money. These suits would be put on hold in state court if the federal court agrees to hear the case.

Why does Governor Sanford want this case to be heard in federal court? One reason is that the litigation turns on an application of federal law, specifically the stimulus bill. Under the stimulus, the Governor argues, the Governor has the authority to accept or reject funds. As the Governor argues in one of his briefs to the court:

the central legal issue in these three cases is whether the General Assembly may use a state law to transfer Governor Sanford's discretionary authority under a federal law to itself. That issue, which is one of federal preemption, is controlled by the United States Supreme Court's decision in Lawrence County v. Lead-Deadwood School District, 469 U.S. 256 (1985). In Lawrence County, the Supreme Court held that when the federal government grants a specific entity of state or local government discretionary authority over the use of federal funds, any attempt by a state legislature to dictate through state law how that federal money is spent is preempted by federal law.
This federal question, the Governor argues, gives the federal court jurisdiction to hear the case.

Another reason for wanting this case to be in federal court is that the South Carolina Supreme Court may be too inclined to side with the state legislature, in part because it's the state legislature that elects them to office. Article V of the South Carolina Constitution provides:

The members of the Supreme Court shall be elected by a joint public vote of the General Assembly for a term of ten years, and shall continue in office until their successors shall be elected and qualified, and shall be classified so that the term of one of them shall expire every two years. In any contested election, the vote of each member of the General Assembly present and voting shall be recorded.
There is no bar on successive terms, so each member of the Court could seek reelection before the state legislature again. Given what's at stake, it's understandable why the Governor would think the state Supreme Court might not be the most neutral forum. Indeed, I'm inclined to think the case for recusal of the state Supreme Court's justices is stronger here than in Capterton v. A.T. Massey Coal, but if the state Supreme Court were to take the case, I doubt any of the justices would in fact recuse.

UPDATE: The Governor's website has links to press releases and legal filings here.

Gabriel McCall (mail):
Can someone cite the actual text of the stimulus bill on which the governor is relying? In all the discussion I've seen on this issue, nobody's posted the specific language of the federal law which determines the issue at hand.
6.1.2009 8:15am
Michael Poole (mail):
Gabriel: The text of the full bill is linked from the White House's page for it.

The governor's lawsuit seems to hinge on section 14005, in the State Fiscal Stabilization Fund title of the act: "The Governor of a State desiring to receive an allocation under section 14001 shall submit an application at such time, in such manner, and containing such information as the Secretary may reasonably require." Section 14001 says "From funds allocated under subsection (d), the Secretary shall make grants to the Governor of each State."

Title XIV of the act seems to deal only with the Governor of the state as the relevant party. Perhaps this is a recognition of the executive branch, as distinguished from the legislative branch, of state government. This is probably how Governor Sanford expects to resolve the parsing ambiguity between "(Governor of a State) desiring to receive an allocation" and "Governor of (a State desiring to receive an allocation)".
6.1.2009 8:37am
cboldt (mail):
-- Can someone cite the actual text of the stimulus bill on which the governor is relying? --
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For the proposition that the case should be decided by a federal court? Or for the proposition that he must accede to the South Carolina's legislature? I've not studied the law, but at a glance the trigger for money flowing to the state is a request from the governor. Blockquote below is not to that proposition, but is to the point of the governor's power to override whatever power a state legislature has under the federal law.
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The American Recovery and Reinvestment Act - Pub. Law 111-5 (H.R. 1) - contains a clause that aims to override a governor's power to veto.

Sec. 1607. (a) Certification by Governor.--Not later than 45 days after the date of enactment of this Act, for funds provided to any State or agency thereof, the Governor of the State shall certify that: (1) the State will request and use funds provided by this Act; and (2) the funds will be used to create jobs and promote economic growth.
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(b) Acceptance by State Legislature.--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.
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(c) Distribution.--After the adoption of a State legislature's concurrent resolution, funding to the State will be for distribution to local governments, councils of government, public entities, and public- private entities within the State either by formula or at the State's discretion.


Finally, I'm sure the complete briefs and arguments are in the public domain, for anybody inclined to seek them out.
6.1.2009 8:38am
cboldt (mail):
[Governor asserts that the] General Assembly's attempt to compel him to apply for the money oversteps federal law and our state constitution.

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That seems to appear at an earlier time in the process, than the "legislature shall have the power to override" section of federal law I blockquoted in my earlier entry.
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My intuition says this is a game of in-state hardball, having no element of federal question. If the South Carolina state legislature fails to obtain what it deems is appropriate action from the governor, it can impeach and remove him. The federal law does not empower the state legislature to directly apply for the funds.
6.1.2009 8:49am
martinned (mail) (www):

If the South Carolina state legislature fails to obtain what it deems is appropriate action from the governor, it can impeach and remove him.

Can they? (As a practical matter, I'm sure they can, but legally?)


The federal law does not empower the state legislature to directly apply for the funds.

Well, no, but if, as a matter of state law, they're entitled to overrule the governor, presumably they could seek an injunction in state court directing the governor to apply for the funds.
6.1.2009 8:57am
cboldt (mail):
-- Can they? (As a practical matter, I'm sure they can, but legally?) --
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There are provisions in the state constitution empowering the legislature to impeach and remove the governor. The criteria are "serious crimes or serious misconduct." Whether failure to apply for federal money constitutes "serious misconduct" is obviously a core issue; but if the governor is given a "law" (mandate from his legislature) to execute, and he fails to do so, it seems to be credible grounds for an assertion of serious misconduct.
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-- presumably they could seek an injunction in state court directing the governor to apply for the funds. --
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I believe they have (not sure it's styled as injunction, but no matter), and the governor is aiming to remove that case to federal court.
6.1.2009 9:07am
martinned (mail) (www):

I believe they have (not sure it's styled as injunction, but no matter), and the governor is aiming to remove that case to federal court.

Which means that there is no serious constitutional crisis here. One way or another, this will get sorted out, and if the courts side with the legislature, one hopes the governor will obey the law. The only question is whether there will be a problem with the deadline. (July 1?)

P.S. If not an injunction, would it be a writ of mandamus? I can never keep track of those old forms of action.
6.1.2009 9:17am
cboldt (mail):
-- If not an injunction, would it be a writ of mandamus? --
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Or prayer for declaratory judgment. I see the top post links to previous posts, and those in turn reach the details. Today is the first time I've looked at any of the material (not for lack of interest, rather out of a sense that the outcome of unsustainable federal debt is a foregone conclusion), and it was quite easy to discern the general lay of the two parallel cases.
6.1.2009 9:32am
Cornellian (mail):
One reason is that the litigation turns on an application of federal law, specifically the stimulus bill.

And black letter civil procedure says that you need a federal claim, not a case that "turns on an application of federal law." Preemption is a defense, not a claim. His case ought to be dismissed for lack of federal subject matter jurisdiction. Take it to state court, Governor Sanford.

Another reason for wanting this case to be in federal court is that the South Carolina Supreme Court may be too inclined to side with the state legislature, in part because it's the state legislature that elects them to office.

Again, that doesn't create federal jurisdiction. Make that argument in state court Gov. Sanford.
6.1.2009 10:07am
rosetta's stones:

Make that argument in state court Gov. Sanford.


In an earlier discussion, someone broached that this matter would get to the SC SC quicker if it first flows through federal court.

The fed court may kick it out, but I'd have to agree that the SC SC is compromised on this matter, as would be implied by their direct election by the SC legislature. The judge up for election during the next 2 year cycle is in the legislature's gunsight, clearly, and would be expected to vote accordingly.
6.1.2009 10:26am
martinned (mail) (www):
@Cornellian: What the governor is claiming is jurisdiction under 28 USC 2201:


Sec. 2201. Creation of remedy
(a) In a case of actual controversy within its jurisdiction, except (...), any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
6.1.2009 10:29am
cboldt (mail):
-- What the governor is claiming is jurisdiction under 28 USC 2201 --
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Not so for every case. The case where Edwards and Williams sued for a declaration/injunction under Section 1607 (blockquoted above), the governor asserts that removal is appropriate under 28 USC 1331 &/or 1367; and does not raise 2201 at all.
6.1.2009 10:48am
martinned (mail) (www):
@cboldt: I meant the case the governor brought himself, which is the main topic of the original post, and the one for which Cornellian raised the jurisdiction question. (BTW, in that case Sanford also refers to 28 US 1331, but I figured that wasn't very interesting.)
6.1.2009 10:58am
U.Va. Grad:
martinned--

I'm pretty sure 2201 isn't an independent grant of jurisdiction. It simply creates the declaratory judgment as a remedy in cases where courts already have jurisdiction. So Sanford can't assert jurisdiction under 2201 as such; rather, he has to have jurisdiction under 1331.
6.1.2009 11:02am
martinned (mail) (www):
@U.Va. Grad: Thanks. This is hardly my area of expertise, which is why I simply looked up what the governor's complaint said about jurisdiction. Would 28 USC 1331 give him jurisdiction? (i.e. does this action "arise" under federal law?)
6.1.2009 11:06am
cboldt (mail):
-- BTW, in that case Sanford also refers to 28 US 1331, but I figured that wasn't very interesting. --
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The court must find basis to take the case under 1331/1367. The 2201 provision merely authorizes the federal court to craft the remedy requested.
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IOW, if there isn't basis to take it up under 1331, he's out. 2201 depends on finding jurisdiction in the first place.
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You're right about focusing on the case that Sanford filed -- my comment about the Edwards case is just distracting cruft.
6.1.2009 11:11am
cboldt (mail):
Without dissecting the arguments, I don't see a federal court as having power to order a state governor to follow state law. There is noting in the federal law at question that COMPELS a state to apply for the funds. If there was, then the feds would have skin in the game. The question is whether or not the state will apply for the funds, and as long as the state is tied up trying to figure that out, the feds can safely sit on the sidelines.
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Likewise, I don't see the federal courts as being empowered to step in on a recalcitrant governor's side, either; to protect him from state action, whether by the legislature or by the state courts.
6.1.2009 11:21am
nick:
The federal statute should be construed so as to not cause the State to violate the Republic Clause. In a republic, the legislature, not the Governor, is responsible for determining revenues and allocating money. Thus the text of the statutory language should be parsed "Governor of (a State desiring to receive an allocation)".
6.4.2009 1:52am

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