Can the Arizona Supreme Court make the legislature submit bills to the governor? Andy Hessick, ASU law professor, talks about the issue.
Ted Simons: Good evening and welcome to "Horizon." I'm Ted Simons. Arizona's jobless rate hit 8.2% last month. The Arizona Department of Commerce released figures today showing that the unemployment rate jumped half a percentage point as nearly all sectors lost jobs. The jobless rate in the Phoenix metro area went up 6/10, to 7.9% while Tucson increased to 7.7%. Governor Jan Brewer wants the Arizona Supreme Court to force lawmakers to send over budget bills passed by the legislature back on June 4th. But is that something the court can do? Here to answer that is Andy Hessick, associate professor of law at Arizona State University. Andy, good to have you here, thanks for joining us.
Andy Hessick: Thank you for having me.
Ted Simons: What does the constitution say about transmitting bills?
Andy Hessick: Well, two provisions of the Arizona constitution say that the legislature shall, it uses the word shall, transmit the bills. Any bills after they have been enacted by the two houses, to the governor. And shall by its terms seems to be a mandatory word as opposed to something like may. So that seems to require that the bills be actually transmitted to the governor.
Ted Simons: With that said does the governor's claim have any merit? As you see it?
Andy Hessick: The governor's claim has -- does have merit I think. Because the constitution says that the bill shall be transmitted to the governor, that suggests the legislature has to do it. Now, there's nothing in the constitution though that says the timing of when those bills have to be transmitted. But it seems to me that they have to be done in a timely manner and reasonably timely manner in order for that shall provision to have any force.
Ted Simons: I was going to say, with bills in general, you know, if there's no deadline, you can hold on to them until whenever. But this has a deadline and it would seem as though the court might look at that and say as you say, there has to be a reasonable assumption that you can get it, look at it, whatever, in a reasonable amount of time.
Andy Hessick: Right. Definitely. Otherwise you can imagine the legislature after they enacted a bill could hold on to it for years before transmitting it over to the governor and it would sort of thwart the whole process.
Ted Simons: The possibility of a government shutdown if nothing is done, does that play into what the court could look at here?
Andy Hessick: I think it does, though not so much to the merits. That's going to go more towards whether or not the court decides to hear the case, which is a separate question. Given that the government might shut down and might have a really extreme impact on the state, that might play into the court's decision to actually hear the case.
Ted Simons: Do you think the court could just look at this, say we don't want any part of this, this is legislative, this is us getting involved in two different branches, we're staying out of this?
Andy Hessick: Oh, absolutely, absolutely. The court has a number of decisions in which the court says that it will hear cases only if there's a particular injury to a person. Here the governor hasn't suffered a personal injury to herself. Her claim is that the governor's office has been hurt and the Supreme Court is usually pretty reluctant to intervene when it's a claim of that kind of institutional harm to an office, because it doesn't want to get involved in these political disputes. It thinks that the voters are the appropriate body to deal with these kinds of problems.
Ted Simons: Up to and including usurping power, a phrase the governor used regarding the legislature?
Andy Hessick: Well, I mean, that puts it pretty starkly, right. In those instances where the -- if the governor's power is actually nullified, if it were effectively nullified, in those cases the Supreme Court has indicated it will step in, for example, there was a former case in which the governor vetoed a provision that the governor had no right to veto, and the legislators filed suit, so it was the other way around. In that case the Supreme Court did step in and said look, you've effectively nullified the legislators' power to pass legislation through its votes and that's not ok. And so it will step in when there's an effective nullification, but there's a real question whether or not that effective nullification is happening here, because the governor still has power to veto, the power to sign, just it my be delayed somewhat.
Ted Simons: The -- can the Supreme Court, does it even have the power to force the legislature to do something?
Andy Hessick: The supreme court does, I think, have that power, though it's a complicated question, that's pretty hard. They theoretically have the power, but they might not want to do it because of the political implications, the court only has power insofar as the other branches of government are willing to play along. I guess the legislature could retaliate against the court, it could cut funding to the court or change its jurisdiction, it could do all sorts of things I suppose. But under the state constitution, the Supreme Court does have the power to issue the ruling against the legislators.
Ted Simons: Last question, how unusual is this? Have we seen this happen in other parts of the country?
Andy Hessick: It's pretty unusual. It has happened before in New York state and New York state's highest court said that the legislature did have to transmit the bill to the governor, it issued that order.
Ted Simons: Ok, so we have a little bit of a precedent there but not a whole heck of a lot.
Andy Hessick: Not a heck of a lot.
Ted Simons: Interesting. They decide Tuesday whether or not they're going to go ahead and pursue this, and you say don't be surprised if they just say we'll stay out of it.
Andy Hessick: Right.
Ted Simons: All right. Andy, thanks for joining us. We appreciate it.
Andy Hessick: Thank you.
Andy Hessick: ASU professor;
